GENERAL TERMS OF PROVISION OF A SOFTWARE PLATFORM

 

The purpose of these general terms and conditions for the provision of services is to define the terms and conditions under which SMART GLOBAL GOVERNANCE, a simplified joint-stock company, with a capital of 1.579.010,84 euros, having its registered office at 300 rue du Vallon, 06560 Valbonne, France, registered with the Trade and Companies Register of Grasse under number 853 951 556 (hereinafter “SMART GLOBAL“) “), provides the Client with the Platform and related Services, in return for full payment of their price.

 

ARTICLE 1 – DEFINITIONS

 

The following terms, when the initial letter is capitalized, shall have the meaning defined below, in the singular or plural:

• Client: refers to any professional, natural or legal person, registered in the Trade and Companies Register or any equivalent commercial register, identified as a customer of SMART GLOBAL in the Quote.
• Contract: refers to these general terms and conditions and the Quotation, as well as any appendices and amendments thereto;
• Quote: refers to the document signed by the Parties, the purpose of which is for the Client’s subscription to the Platform and the Services. It includes, in particular, a description of the Services subscribed to, the conditions for the provision of the Platform, the pricing conditions as well as any other specific conditions negotiated between the Parties. The Quotation is an integral part of the Contract.
• Data: means, in the context of the use of the Platform, all information, data or content, which may include personal data, communicated, collected and/or processed by the Client in the context of the use of the Platform ;
• Platform: refers to the software platform called ‘Smart Global Governance’ for organization and compliance management developed and published by SMART GLOBAL and made available to the Client in accordance with the terms of the Quotation and the Contract.
• User: refers to the natural person who benefits from the services provided by the Platform and granted to the Client, who is employed by the Client or by the Client’s subcontractors, and authorised to use all or part of the Platform and the Services, regardless of where they are located and the terms of their access.

 

ARTICLE 2 – PROVISION OF THE PLATFORM

2.1. Description of the Platform

The purpose of the Platform made available by SMART GLOBAL is to organize and manage the compliance of the user entity with laws, regulations, standards, normative standards and/or international and national certifications and, depending on the services subscribed to by the entity, to digitize existing standards on the Platform and/or create its own internal standards (all the services offered by the Platform being hereinafter referred to as the “Services”). “).

2.2. Methods of provision; Hosting

SMART GLOBAL offers several models for the provision of the Platform, depending on the choices made by the Client in the Quote.

• Provision in SaaS mode

The Platform is hosted on the servers made available to SMART GLOBAL by the hosting provider mentioned in the Quote, and accessible from a web browser at the following address: smartglobal.com

At the Client’s choice, SMART GLOBAL offers two types of accommodation:

• Shared hosting, on data servers shared by several SMART GLOBAL customers;
• Dedicated hosting, on servers specially made available to the Client.

Hosting, excluding subcontracting, is re-invoiced to the Client in the form of disbursements, implying acceptance of the general terms and conditions of the host he has chosen.

Any Data, and in particular any personal data, collected and processed through the Platform will be stored on the server(s) of this host. This host acts as a subcontractor of SMART GLOBAL within the meaning of the Regulations applicable to the protection of personal data, only on written instructions from SMART GLOBAL. It does not have the right to use the Data, except for the purpose of performing technical services for hosting and managing databases and only under the contractual conditions signed between the host and SMART GLOBAL, which may not derogate from this article and the aforementioned regulations.

In addition, SMART GLOBAL is not in a position to determine the nature of the Data that is stored by the Client on the servers. Consequently, the Client ensures its own compliance with the regulations, in particular with regard to the protection of personal data, and guarantees SMART GLOBAL against any recourse by third parties in this respect.

SMART GLOBAL undertakes, as part of an obligation of means, to make every effort to ensure, to the best of its ability, the availability of the Platform in accordance with the availability rate specified in SMART GLOBAL’s service agreement, accessible at the https://www.smartglobal.com/fr/sla/ address.

• Provision to the Client’s internal environment (On Premises – Hybrid Cloud)

If the Client chooses to make the Platform available on its internal environment, the Platform may be deployed, at its choice, on the servers of its hosting provider or on its own servers. In any event, the Client is solely responsible for the security of the servers on which it deploys the Platform and the Data thus stored.

Depending on the Client’s technical constraints, the Platform is installed either by remote access to the Client’s IT facilities or directly on the Client’s premises. The terms and costs of the installation are specified in the Quote.

In the event that the Platform is made available on the Client’s internal environment (On Premise or Hybrid Cloud), the Client will be solely responsible for the backup of the Data and undertakes to carry out regular incremental and complete backups of the Data and to use appropriate and secure backup media.

 

2.3. Equipment

All costs relating to access to and use of the Platform, whether hardware, software or internet access costs, are the sole responsibility of the Client. The Client is solely responsible for the proper functioning and security of its information system.

 

2.4. Use of the Platform

It is expressly agreed between the Parties that, given the nature and purpose of the Platform, the Client shall ensure that Users act as professionals for the purposes of their professional activity and undertake to use the Platform only for the needs of their activity.

The use of the Platform by Users is governed by the general terms and conditions of use of the Platform, available at any time on the Platform.

In any case, the Platform will be used under the sole control, direction and responsibility of the Client. Consequently, the Client is responsible, but not limited to, (i) the implementation of all useful procedures and measures intended to protect its hardware, software packages, software, passwords, against any virus and intrusion; (ii) compliance with the technical requirements as defined in Article 2.2 above; (iii) errors made in the use of the Platform; and (iv) the use of authentication means to access and use the Platform. The Client shall ensure that no person not authorised by him has access to the Platform. If necessary, the Client deletes and/or updates access and authorization according to the authorizations it gives or deletes to Users, directly from its administrator area on the Platform if it has opened one in accordance with the Quote, or failing that, by notifying SMART GLOBAL of this request.

In the event of use of the Platform by a User who does not comply with the general terms and conditions of use, in the event of a breach by the User of the general terms and conditions of use, or more generally in the event of a violation of applicable laws and regulations, SMART GLOBAL reserves the right to suspend or terminate by operation of law, without prior notice, without notice or compensation,  all or part of a User’s access to the Platform, which the Client expressly accepts. SMART GLOBAL may suspend or terminate the order without prejudice to any other rights, actions and remedies it may have for compensation for any damage it may have suffered as a result of such breaches.

ARTICLE 3 – TECHNICAL SUPPORT AND MAINTENANCE OF THE PLATFORM

Depending on the method of provision of the Platform chosen by the Client in the Quote, SMART GLOBAL will provide technical support to Users and maintenance of the Platform under the conditions and according to the terms and conditions set out in SMART GLOBAL’s service agreement available at https://www.smartglobalgovernance.com/en/sla-2/.

The Client expressly acknowledges and accepts that in the event that the Platform is made available on its internal environment, SMART GLOBAL cannot intervene in any way on a malfunction related to the Client’s own hosting and/or its information system. SMART GLOBAL shall not bear any liability in this respect.

ARTICLE 4 – OTHER SERVICES

The Parties may, under the specific conditions set out in the Quote, agree on the provision by SMART GLOBAL to the Client of other services (training services, project management services, specific development services, etc.).

ARTICLE 5 – COOPERATION BETWEEN THE PARTIES

The Parties undertake to cooperate closely, to the best of their ability and in perfect good faith, in order to enable the proper performance of the Contract. In particular, the Parties undertake to keep each other informed and to communicate spontaneously to each other any events, information or documents that would be useful for the proper use of the Platform, and more generally for the proper execution of the Contract.

In the event that, as part of its compliance, the Client intends to carry out an audit of the Platform, this audit must be carried out at the Client’s sole expense and comply with the following conditions: (i) the auditor appointed by the Client must not, under any circumstances, be a direct or indirect competitor of SMART GLOBAL, (ii) the Client must give at least fifteen (15) working days’ notice before the audit is carried out and notify its request for an audit from SMART GLOBAL detailing the reasons for the audit and its scope, (iii) the audit must be carried out at the Client’s sole expense, (iv) the auditor will only be able to access information and documents relating to the Platform to the exclusion of the source codes of the Platform and any other information relating to the products and services provided by SMART GLOBAL or its activity,  and (v) the auditor shall be subject to a duty of confidentiality at least as strict as that set forth herein.

SMART GLOBAL will provide the auditor with a privileged interlocutor of his company, with the necessary skills to meet the needs of the audit. The contact person will be made available to the Client free of charge for one working day. Beyond that, the provision will be invoiced to the Client, at the daily rate of 1200 euros excluding taxes.

ARTICLE 6 – INTELLECTUAL PROPERTY RIGHTS

6.1. Intellectual property rights over the Platform

Customer acknowledges and agrees that all right, title, and interest in and to the Platform (including its architecture, software, databases, data, textual or visual content, and multimedia on or disclosed through the Platform), the Services, the Standards, its documentation, and names,  The signs and logos used on the Platform and/or by SMART GLOBAL (the “Protected Elements“) are protected by intellectual property rights (including , in particular, all rights associated with intellectual works, including economic and moral copyrights, all property rights relating to patents, trademarks, designs and models, software, etc.).  The rights of producers of databases, domain names, and all other intellectual property rights, worldwide, already or hereafter registered or registered), and belong exclusively to SMART GLOBAL or third parties who have authorized SMART GLOBAL to use them. The Agreement does not confer on the Client any right or interest in the Protected Elements, but only a limited right to access and use the Platform and Services under the conditions defined below.

SMART GLOBAL does not in any case assign or grant more rights than it holds over third parties and it is reminded that the latter remain free to take legal action in the event of a violation of their rights.

Subject to the full payment of the sums mentioned in the Quotation by the Client, SMART GLOBAL grants the Client, for the duration of the Contract as provided for in the Quotation, for the whole world, a non-exclusive, non-assignable, non-transferable license to access and use the Platform and the Services subscribed to, for its own needs and for the sole purposes of its professional activity,  with a right of sub-licensing to Users under the same conditions.

The Client undertakes not to use the Platform and Services other than to the extent permitted by the Agreement. The Client further undertakes not to perform one or more of the following acts, nor allow a User or a third party or authorize a User or a third party to perform one or more of the following acts: (i) decompile or disassemble the Platform and/or the Services, reverse engineer or otherwise attempt to obtain its source codes,  in whole or in part; (ii) create derivative works of, adapt, modify, translate or make modifications to the Platform and/or Services, in whole or in part, or allow all or part of one or more of their elements to be associated with or incorporated into other works, including software works; (iii) rent, sublicense, sell, loan, communicate or transfer the Platform, Protected Elements and/or Services to any third party, or allow any third party to access and use the Platform and Services, in whole or in part, without the prior written consent of SMART GLOBAL GOVERNANCE.

Any representation, reproduction and/or exploitation, in whole or in part, of SMART GLOBAL’s distinctive signs, of any kind whatsoever, is totally prohibited, except with the prior, express and written consent of SMART GLOBAL.

6.2. Intellectual property rights in Data

The data incorporated by Users on the Platform is the property of the Client.

The Client grants SMART GLOBAL the right to use the Data (i) for the purposes of the organization, management, maintenance and/or support of the Platform, and (ii) subject to and provided that the personal data contained in the Data has been previously anonymized, in order to allow the improvement of the functions and performance of the Platform.

As an exception to the terms of the previous paragraph, if the Client activates the automatic control of its subcontracting organizations on the Platform, SMART GLOBAL may contact these organizations to assist them in their compliance control process and possibly offer them to subscribe to its Services.

The Client indemnifies SMART GLOBAL against any application, claim or action of third parties, for any reason whatsoever and on any basis whatsoever, relating to the Data and the intellectual property rights attached thereto.

ARTICLE 7 – FINANCIAL CONDITIONS

7.1. Price

The price of the subscription to the Platform is set in the Quote or the price list applicable on the day of subscription. It is in euros excluding tax. In this case, VAT will be added in addition, at the rate applicable on the invoice date.

The rates are set in the Quotation according to the duration of the commitment. If the Client receives a commercial discount in exchange for a term commitment, the Client acknowledges that the entire subscription for the agreed term will become due in the event of early termination. In addition, by way of compensation, SMART GLOBAL will invoice the Client for the amount of the discount granted for the entire duration of the commitment.

The applicable rates depend on the number of employees of the Client. As a result, the Client undertakes to declare the number of employees no later than one month before the renewal of the Contract.

The Client is exempted from making this declaration if the number of its employees is within the maximum bracket defined in the price list.

If the Client is a group of companies, it has the option of designating only the subsidiaries that will benefit from the subscription. In this case, the number of employees is the total of the designated subsidiaries, not the total of the group.

Any excess of the subscription will be subject to a separate additional invoice, in particular when using Time Credit applicable to specific services defined in the Quotation or on the price list.

The Time Credit corresponds to the number of days required for onboarding, training, SSO implementation, data import, technical assistance, automation, maturity plan, etc.

Likewise, the price of accommodation will be charged separately.

Any costs incurred by SMART GLOBAL for the Client’s needs and at the Client’s request (travel, on-site meeting, etc.) will be subject to additional invoicing.

7.2. Price revision

Once a year by SMART GLOBAL, on January 1st of each year, depending on the evolution of the SYNTEC index, which may not be less than 5% of the pre-tax price paid by the Client in the previous year. The reference index taken as the basis for this indexation will be the last SYNTEC index published on the date of the revision, by comparison with the original index published on the date of signature of the Quote. In the event of the disappearance of any of the indices, the Parties shall agree on the new indices(s) for the establishment of a formula with a comparable effect.

The rate will be revised according to the formula below

P1=P0x (S1/S0)

Where:

• P1 = revised price
• P0 = original price or last revised price
• S0 = last SYNTEC index published on the date of the previous revision or index of origin (last published on the date of signature of the contract)
• S1 = last published SYNTEC index on the revision date.

If P1< 5% then S1 = 5%

The Syntec index is published on https://www.syntec.fr/indicateurs/indice-syntec/

7.3. Terms of payment

Unless otherwise stipulated in the Quotation, the price is payable annually in arrears.

Invoices are payable within thirty (30) days from the date of invoice issuance, by bank transfer. The Client expressly agrees that invoices may be sent to him by email.

Any late payment will result in the application of a late payment penalty calculated on the basis of an interest rate equal to three (3) times the legal interest rate, without the need for a reminder. A lump sum compensation of forty (40) euros for recovery costs will also be due.

Without prejudice to the foregoing, SMART GLOBAL reserves the right, five (5) working days after a formal notice to pay sent to the Client by registered letter with acknowledgement of receipt, which has remained totally or partially ineffective, to suspend access to the Platform to Users until full payment of the sums due.

ARTICLE 8 – TERM – TERMINATION

8.1. Duration of the Contract

The Contract is concluded from the date of signature of the Quotation for the duration indicated therein. The Contract shall be tacitly renewed for successive periods of one (1) year, unless terminated by one of the Parties, by registered letter with acknowledgement of receipt, at least three (3) months before the expiry of the current period.

During the notice period, SMART GLOBAL undertakes to keep the Platform in the same state of operation and to correct any anomalies that may be discovered by the Client during this period. On the other hand, the Client expressly acknowledges and accepts that no updates and/or functional developments of the Platform will be provided during the notice period.

8.2. Termination of the Contract

In the event of a Party’s failure to comply with any of its contractual obligations, the other Party may terminate the Contract, by operation of law and without judicial formality, after formal notice to the defaulting Party, by registered letter with acknowledgement of receipt, which has remained partially or totally unsuccessful for a period of thirty (30) days. Termination shall take effect immediately and shall be without prejudice to any damages to which the aggrieved Party may be entitled.

8.3. Consequences of Expiry and/or of termination of the Contract

The sums paid by the Client before the expiry or termination of the Contract remain the property of SMART GLOBAL.  Upon the expiry of the Agreement or on the effective date of its termination, all sums that remain due by the Client to SMART GLOBAL shall become immediately payable.

Upon expiration or termination of the Agreement, for any reason whatsoever, the Client shall immediately cease all use and exploitation of the Platform.

In the event that the Platform is made available to the Client in SaaS mode, the Client will be invited, during the notice period following the notification of termination, to export the Data directly from the Platform, following the procedure provided for this purpose. After termination, SMART GLOBAL will return to the Client who requests it, within thirty (30) calendar days, all the Data in a format readable by common software on the market. Any technical and/or operational assistance in the recovery of the Data that may be requested by the Client will be the subject of a separate quote from SMART GLOBAL.

ARTICLE 9 – GUARANTEES

SMART GLOBAL represents and warrants that it has all rights, titles, licenses and authorizations necessary to enter into the Agreement. SMART GLOBAL guarantees that the Platform it provides complies with the state of the art and applicable laws and regulations existing on the day of the Contract, does not violate any applicable law, nor infringes the rights of third parties, including intellectual property rights.

SMART GLOBAL represents and warrants that it has all intellectual property rights necessary for the purposes hereof. As such, SMART GLOBAL indemnifies the Client against any demand, claim or action for infringement relating to the Platform, provided that the Client (i) promptly notifies SMART GLOBAL of such claim or action, (ii) allows SMART GLOBAL to defend and/or settle said claim on its own, and (iii) provides SMART GLOBAL with all necessary assistance in the defense and/or resolution of the dispute. In the defense or resolution of the dispute, SMART GLOBAL may, at its sole discretion, (i) obtain the right, for the Client, to continue to use the Platform, (ii) modify/replace the infringing correlative elements so that they no longer infringe the rights of the third party, without interfering with the proper performance of the Platform, or (iii) terminate the Agreement and reimburse the Client in proportion to the price of the Quotation that it has already paid on the day of the dispute.

SMART GLOBAL does not grant any other express or implicit guarantee, including, but  not limited to, the continuity, performance and/or durability of the Platform and/or the suitability for a particular purpose or the suitability of the Platform for the Client’s needs, nor does it guarantee that it is free from anomalies,  errors or bugs or that it will operate without failure or interruption. The Platform is distributed “as is” and according to its availability

When making the Platform available to the Client in SaaS mode, SMART GLOBAL undertakes to make every effort to ensure the integrity of the network and servers against any external malicious act or any known computer attack. The servers are protected against intrusion by a firewall. Security updates for operating systems and anti-virus are installed regularly. Similarly, access to the Platform implies knowledge and acceptance of the characteristics and limitations of the Internet, in particular with regard to technical performance, response times for consulting, querying or transferring information, the risks of interruption, and more generally, the risks inherent in any connection and transmission on the Internet, the lack of protection of certain data against possible misappropriation and the risks of contamination by possible viruses circulating on the network.

SMART GLOBAL does not guarantee that the Platform, or its servers in the context of a SaaS provision, will, at all times, be free of viruses, worms, Trojan horses or any other component likely to cause damage. It is the Client’s responsibility to take all appropriate measures to protect its information system and, in particular, the hardware, data and/or software stored on the computer equipment made available to Users against any attack.

SMART GLOBAL does not grant any guarantee as to the content generated by the artificial intelligence made available to the Client. SMART GLOBAL cannot be held liable for any erroneous information generated in this way.

SMART GLOBAL cannot guarantee the accuracy, completeness, timeliness or other quality of the Data present on the Platform. The Client is solely responsible for the integrity, accuracy and quality of the Data that Users integrate and disseminate on the Platform and ensures that it is free of viruses or any other component likely to cause damage to the Platform.

ARTICLE 10 – LIMITATION OF LIABILITY

By express agreement, SMART GLOBAL is subject to an obligation of means in the provision of the Platform and Services to the Client. The Client expressly acknowledges having received from SMART GLOBAL all the necessary information, enabling it to assess the suitability of the Platform for its needs and to take all necessary precautions for its implementation.

SMART GLOBAL shall not be liable in any way for any demand, claim or action resulting from any use of the Platform not authorized by the Agreement or not complying with the terms and conditions of use provided for in the Agreement.

Likewise, SMART GLOBAL is only responsible for its content, excluding that generated by artificial intelligence, and for its own settings. It will not be responsible in any way in the event of any modification of the operating flowcharts of the Platform or the content of the Platform.

Under no circumstances shall SMART GLOBAL be held liable for any indirect damage of any kind whatsoever suffered by the Client, including, but not limited to, loss of profit, loss of profits, loss of goodwill, commercial disturbance of any kind, damage to image, in connection with or arising from the use of the Platform or the Services.

The Client expressly acknowledges that the use of the Platform is under its sole responsibility. No advice or information, whether oral or written, obtained by the Client and/or a User during the use of the Platform is likely to create guarantees not expressly provided for in the Contract, nor to give rise to the liability of SMART GLOBAL in the event of damages, of any nature whatsoever, caused to the Client,  a User or third parties due to the misuse by the Platform, in violation of the recommendations and instructions given by SMART GLOBAL, the provisions of this article and more generally the non-compliance with the Contract.

In any event, in the event that SMART GLOBAL’s liability is incurred as a result of proven fault on the part of the latter, SMART GLOBAL’s total cumulative aggregate liability will be expressly limited, for all causes combined, to the direct and foreseeable damage suffered by the Client, without exceeding the amount of the sums paid by the Client in the last twelve (12) months preceding the event giving rise to the liability.

ARTICLE 11 – SUBCONTRACTING

SMART GLOBAL may freely use subcontractors for the provision of all or part of the services subscribed to by the Client.

However, when SMART GLOBAL or the Client deems it necessary, SMART GLOBAL will put the Client in direct contact with the service provider. The Client will then be free to mandate SMART GLOBAL to set up and monitor the service concerned in the name and on behalf of the Client.

It is expressly recalled that in the event of an amicable or judicial challenge against SMART GLOBAL due to a fault on the part of a subcontractor in the performance of its obligations, SMART GLOBAL will always have the possibility of calling on the said subcontractor as a guarantee.

ARTICLE 12 – INSURANCE

Each Party undertakes to take out insurance with an insurance company known to be solvent and to maintain civil liability insurance throughout the term of the Contract intended to guarantee the risks relating to the performance of the Contract and to cover any damages that may be charged to it in the context of the performance of the Contract. At the request of the other Party, each Party shall be able to justify the subscription of this insurance.

ARTICLE 13 – CONFIDENTIALITY

The Contract and all of its terms, as well as all information, data, documents of any kind communicated by one of the Parties to the other for the purposes of the Contract, whether oral, written or electronically, and including, but not limited to, activity reports, mission orders, software, processes, methods, etc., are considered confidential.  formulas, concepts, industrial strategies, marketing plans, trademarks, or know-how, whether or not this information is protectable under an intellectual and industrial property right (hereinafter the “Confidential Information“).

Each Party undertakes to:

• protect and treat in the strictest confidence any Confidential Information that has been or will be provided to it by the other Party or that has been made known to it by the other Party;
• not to disclose to any third party, without the prior written consent of the other Party, the nature or content of the Confidential Information received from such other Party, directly or indirectly;
• use such Confidential Information only for the sole purpose of performing the Services covered by the Contract or its performance,
• not to copy, reproduce or duplicate in whole or in part the Confidential Information for purposes other than those of the Services or the performance of the Contract;
• ensure the integrity and security of the Confidential Information entrusted to it by the other Party.

However, this confidentiality commitment does not apply to information:

• that have entered the public domain prior to their disclosure and/or communication or that will fall into the public domain after their communication and/or disclosure without any default by the Party that received them;
• that has been received from a third party in a lawful manner without breach of this Agreement;
• that were lawfully in the possession of the Party that received them prior to their disclosure;

In accordance with Article 9 and taking into account  the characteristics and limitations of the Internet, the Client acknowledges that SMART GLOBAL is bound by an obligation of means concerning the security of the Data and cannot guarantee that there will be any breach of the integrity or confidentiality of the Data.

If the Receiving Party is compelled to disclose any Confidential Information received from the Disclosing Party, due to a legislative or regulatory provision, a judgment or a decision of an organization vested with legal authority, the Receiving Party shall inform the Disclosing Party of such request as soon as possible, so as to allow the Disclosing Party to take all measures to safeguard its Confidential Information to the best of its ability.

The Parties will be bound by this obligation for as long as the data concerned has not become public, unless the Party concerned has given the particular, prior and written consent to a waiver of confidentiality.

Each of the Parties shall ensure that its staff and any subcontractors comply with the confidentiality obligations detailed in this article and shall assume all liability in the event of failure of its Staff and any subcontractors to comply with these obligations.

Confidential Information remains the property of the Party that discloses it to the other Party. Under no circumstances shall the transmission of Confidential Information to the other Party be construed as conferring any rights or interests in the Confidential Information except for the rights provided for in the Contract.

The Parties undertake to return or destroy, as instructed by the other Party, documents or reproductions thereof containing Confidential Information, immediately upon request of the Party concerned and at the latest upon termination or expiry of the Agreement for any reason whatsoever.

This section shall survive the termination or expiration of the Agreement for any cause.

ARTICLE 14 – PROTECTION OF PERSONAL DATA

The Parties undertake to comply at all times with the regulations applicable to the protection of personal data and in particular Regulation (EU) No. 2016/679 of the European Parliament and of the Council of 27 April 2016, known as the “GDPR”, and Law No. 78-17 of 6 January 1978, as amended, known as the “Data Protection Act”.

In the case of non-subcontracted hosting, SMART GLOBAL does not have the status of subcontractor with regard to the hosted data.

In particular, the Parties undertake to put in place and maintain appropriate security and confidentiality measures to guarantee adequate protection of the personal data processed, appropriate to the risks caused by their processing on the rights and freedoms of the persons concerned. These measures are aimed in particular at (i) protecting personal data against its destruction, loss, alteration, disclosure to unauthorised third parties and (ii) ensuring the restoration of the availability of and access to personal data in the event of a physical or technical incident. The Parties also undertake to put in place a procedure to regularly test, analyse and evaluate the effectiveness of their technical and organisational measures to ensure the security of processing.

To find out more about the personal data protection rules published by SMART GLOBAL, the Client is invited to consult SMART GLOBAL’s Privacy Policy, available at the following address: https://www.smartglobalgovernance.com/en/privacy-policy/.

ARTICLE 15 – FORCE MAJEURE

The Parties cannot be held liable if the non-performance or delay in the performance of any of their obligations, as described herein, results from a case of force majeure, within the meaning of Article 1218 of the Civil Code. During its duration, the force majeure event suspends the performance of the obligations for the Party relying on it.

In any case, the Party affected by the force majeure event shall do everything in its power to avoid, eliminate or reduce the causes of the delay and resume the performance of its obligations as soon as the invoked event has disappeared.

However, if the force majeure events were to last for more than one (1) month, they would give rise to the right to the termination of the Contract by either Party.

ARTICLE 16 – NON-COMPETITION

For the duration of the Contract and for a period of one (1) year from the expiry or termination of the Contract, for any reason whatsoever, the Client undertakes not to develop or have developed and/or market, on its behalf or on behalf of third parties, any software that directly or indirectly competes with the Platform or the Services,  in France or abroad.

In the event that the Client fails to comply with this commitment, he/she shall be liable, ipso jure and without prior formal notice, to SMART GLOBAL for a fixed penalty set from now on at €50,000 (fifty thousand euros), without prejudice to all other rights and remedies, and in particular the right for SMART GLOBAL to seek compensation for the damage it has suffered and/or to have the cessation of any wrongful conduct ordered under penalty payment.

This penalty clause will apply without SMART GLOBAL having to justify the extent or nature of its damage.

ARTICLE 17 – REFERENCE

SMART GLOBAL is authorized to use the Client’s name, trademark and logo as a commercial reference, in particular on its website or any other medium.

The Client may also use the name, trademark and logo of SMART GLOBAL as a commercial reference, except in the event of termination for any reason whatsoever.

ARTICLE 18 – MISCELLANEOUS STIPULATIONS

 18.1 Independence of the Parties

The Parties declare and acknowledge that they are and will remain, throughout the term of the Contract, independent partners, and that the Contract cannot confer on either Party the status of agent or representative of its co-contractor, neither Party having the authority to bind the other or to sign in the name and on behalf of the other,  each Party alone insures the risks of its own exploitation. Neither Party shall be liable for the acts or omissions of the other Party, or for the acts or omissions of their collaborators during the performance of the Services.

 

18.2 Entirety

The Contract and each Quotation form a contractual whole and express the entire agreement between the Parties. They supersede all prior written or oral proposals, communications or agreements relating to the subject matter of the Agreement. In the event of any contradiction between the provisions of the Contract and those of a Quotation, the provisions of the Quotation shall prevail.

18.3 Modification of the Agreement

SMART GLOBAL reserves the right to modify the provisions of the Agreement at any time without prior notice. In the event of a modification, the Contract that will be applicable to the Client will be the one in force on the date of the Quote.

18.4 Divisibility

In the event that one or more stipulations of the Contract are held to be invalid or declared as such pursuant to a law, a regulation or following a decision of a competent court that has become final, the other provisions of the Contract shall nevertheless retain their full force and scope. The Parties agree to negotiate in good faith the modification or replacement of the invalid stipulation. To this end, the Parties will work together to replace the invalidated stipulation with a new clause respecting the spirit of the latter and the Contract.

18.5 Tolerance – Non-Waiver

It is formally agreed that any tolerance or waiver by one of the Parties, in the application of all or part of the commitments provided for in the Contract, regardless of their frequency and duration, shall not constitute a modification of the Contract, nor shall it generate any right whatsoever.

 

18.6 Notifications

Except in cases where a stipulation herein provides otherwise, it is the result of an express agreement between the Parties that exchanges between them may take place by any means, in particular by electronic mail.

The Parties agree that the paper printing of an e-mail is a valid proof of the content of the exchanges.

The Parties shall implement all security measures to guarantee the availability, integrity and confidentiality of e-mail files sent via the Internet. At the same time, they implement all the necessary measures, such as firewalls and antivirus systems that are regularly updated and correctly configured, to protect themselves in the most effective way possible against intrusions, attacks and the spread of viruses in order to guarantee the availability, integrity and confidentiality of the e-mail files received. The Parties shall safeguard in the most appropriate and secure manner possible all messages transmitted relating to the subject matter of the Contract.

18.7 Election of domicile

For the execution of these Terms and Conditions as well as their consequences, the Parties respectively elect domicile at their registered offices appearing at the head of the Contract.

18.8 Electronic signature

Where applicable, each Party irrevocably agrees to use the electronic signature procedure of the Contract on the platform used for this purpose by SMART GLOBAL.

ARTICLE 19 – APPLICABLE LAW AND JURISDICTION

The Contract is subject to French law, to the exclusion of any other legislation. In the event that this Agreement is drafted in more than one language, only the French version shall prevail.

The Parties to this contract undertake to do everything possible to try to settle amicably any dispute that may arise from the performance of the Contract. However, if no solution is found, the Parties agree that their dispute will be brought before the competent courts of Grasse.