The purpose of these general terms of service is to set out the terms and conditions under which Smart Global Governance, a French simplified joint-stock company with a sole shareholder (société par actions simplifiée à associé unique) with share capital of 15,000 euros, registered with the Grasse Trade and Companies Register under number 838 729 358, whose registered office is located at 300 rue du Vallon, 06560 Valbonne, France (hereinafter "SMART GLOBAL"), provides the Client with the Platform and the related Services, in consideration of full payment of their price.
The following terms, when capitalised, have the meanings set out below, in both the singular and the plural:
(i) Client: means any professional, whether a natural or legal person, registered with the Trade and Companies Register or any equivalent commercial register, identified as a client of SMART GLOBAL in the Quote.
(ii) Contract: means these general terms and the Quote, together with any schedules and amendments thereto;
(iii) Quote: means the document signed by the Parties for the subscription by the Client to the Platform and the Services. It includes, in particular, a description of the Services subscribed to, the terms on which the Platform is made available, the pricing terms and any other special terms negotiated between the Parties. The Quote forms an integral part of the Contract.
(iv) Data: means, in connection with the use of the Platform, all information, data or content, which may include personal data, communicated, collected and/or processed by the Client in connection with the use of the Platform;
(v) Platform: means the compliance organisation and management software platform named "SMART GLOBAL GOVERNANCE", developed and published by SMART GLOBAL and made available to the Client in accordance with the terms of the Quote and the Contract.
(vi) User: means the natural person benefiting from the services provided by the Platform and granted to the Client, who is an employee of the Client or of its subcontractors, and who is authorised to use all or part of the Platform and the Services, regardless of their location and the means by which they access it.
2.1. Description of the Platform
The purpose of the Platform made available by SMART GLOBAL is to organise and manage the governance, risk management and compliance management of the user entity with international and national laws, regulations, frameworks, standards and/or certifications and, depending on the services subscribed to by the entity, to digitise existing frameworks on the Platform and/or create its own internal frameworks (all the services offered by the Platform being hereinafter referred to as the "Services").
2.2. Terms of provision - Hosting
SMART GLOBAL offers several ways of making the Platform available, depending on the choices made by the Client in the Quote.
2.2.1. Provision in SaaS mode
The Platform is hosted on servers made available to SMART GLOBAL by the hosting provider named in the Quote, and is accessible from a web browser at the following address: www.smartglobal.com
At the Client's option, SMART GLOBAL offers two types of hosting:
– shared hosting, on data servers shared between several SMART GLOBAL clients;
– dedicated hosting, on servers made available specifically to the Client.
All Data, and in particular all personal data, collected and processed via the Platform will be stored on the server(s) of this hosting provider. This hosting provider acts as a processor of SMART GLOBAL within the meaning of the Regulations applicable to the protection of personal data, on the exclusive written instructions of SMART GLOBAL. It has no right to use the Data, except for the performance of the technical hosting and database management services and solely under the contractual terms signed between the hosting provider and SMART GLOBAL, which may not derogate from this article or from the aforementioned regulations.
Furthermore, SMART GLOBAL is not in a position to determine the nature of the Data stored by the Client on the servers. Accordingly, the Client itself ensures its compliance with the regulations, in particular with regard to the protection of personal data, and shall indemnify SMART GLOBAL against any third-party claim in this respect.
SMART GLOBAL undertakes, as an obligation of means (obligation de moyens), to use all efforts to ensure, to the best of its abilities, the availability of the Platform in accordance with the availability rate specified in the SMART GLOBAL service level agreement, available at the following address: https://www.smartglobalgovernance.com/en/legal-en/sla-en
2.2.2. Provision on the Client's internal environment (On Premises – Hybrid Cloud)
If the Client chooses to have the Platform installed on its internal environment, the Platform may be deployed, at its option, 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 of the Data stored on them.
Depending on the Client's technical constraints, the Platform is installed either by remote access to the Client's IT facilities or directly at the Client's premises. The terms and cost of installation are specified in the Quote.
Where the Platform is made available on the Client's internal environment (On Premise or Hybrid Cloud), the Client shall be solely responsible for backing up the Data and undertakes to carry out regular incremental and full 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, shall be borne exclusively by the Client. The Client is solely responsible for the proper functioning and appropriate 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 the Users act in a professional capacity for the purposes of their professional activity and undertake to use the Platform solely for the purposes of their activity.
The use of the Platform by Users is governed by the general terms of use of the Platform, which are available at all times on the Platform.
In any event, the Platform shall be used under the exclusive control, direction and responsibility of the Client. Accordingly, the Client is responsible, without limitation, for (i) implementing all appropriate processes and measures to protect its hardware, software packages, software and passwords against any virus and intrusion; (ii) complying with the technical prerequisites as defined in article 2.2 above; (iii) errors made in the use of the Platform; and (iv) the use of the authentication means to access and use the Platform. The Client shall ensure that no person not authorised by it has access to the Platform. Where applicable, the Client shall delete and/or update access rights and authorisations according to the permissions it grants to or withdraws from 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 such request.
In the event of use of the Platform by a User that does not comply with the general terms of use, in the event of a breach by the User of the general terms of use, or more generally in the event of a breach of applicable laws and regulations, SMART GLOBAL reserves the right to suspend or terminate automatically, without notice or compensation, all or part of a User's access to the Platform, which the Client expressly accepts. SMART GLOBAL may order such suspension or termination without prejudice to any other rights, actions and remedies available to it for compensation for any loss it may suffer as a result of such breaches.
2.5. Smart Colleague
For any subscription to the Platform, the Client has limited access to the SMART COLLEAGUE artificial intelligence developed by SMART GLOBAL. The service is limited to 1,000 operations per month.
Each operation corresponds to a request sent to SMART COLLEAGUE to perform a specific task (analysis, generation, prediction, etc.), including the use of resources (CPU, memory) to process the data provided by a user (hereinafter a "Request").
The Client may subscribe to an additional access option to SMART COLLEAGUE; it is invited to contact SMART GLOBAL for this purpose.
The Client acknowledges that, in order to benefit from the Services, it interacts with a machine powered by generative AI capabilities. When using SMART COLLEAGUE, the Client does not at any time interact with a human being. SMART GLOBAL will at no time suggest or simulate a human presence.
2.5.1. Data Integration
In order to use SMART COLLEAGUE, the Client must integrate the Data. Integration is an essential prerequisite for SMART COLLEAGUE to function (the "Integrated Data").
Responses to requests are based exclusively on the data integrated as at the date of the request.
The Client is solely responsible for the integration of the Data, its quality and its completeness. The Client undertakes to integrate Data that belongs to it or to third parties who have authorised it to use such Data, and that complies with the general terms of use of the Platform.
2.5.2. Use of Generated Data
Generated Data is the result of the processing, classification and rationalisation of the Data Integrated by the Client, to the exclusion of any other data or information (the "Generated Data"). The Platform is not intended to search for information outside the Client's IT environment (no internet sources or third-party data are used).
The Client is fully aware that its Generated Data is produced by an AI system that may contain inaccuracies and/or imprecisions.
The Client, as a professional in its field of activity, is solely responsible for how the Generated Data is interpreted, used and applied in its professional context. This includes careful monitoring to verify the quality, reliability and relevance of the Generated Data.
The Client is solely responsible for any decisions made on the basis of the Generated Data. The Client shall exercise professional judgement in order to make informed decisions in light of its own objectives, requirements and quality standards.
Depending on the method of provision of the Platform chosen by the Client in the Quote, SMART GLOBAL provides technical support to Users and maintenance of the Platform under the conditions and in accordance with the terms set out in the SMART GLOBAL service level agreement available at https://www.smartglobalgovernance.com/en/legal-en/sla-en. In the event of customisation of the Platform, maintenance of the standard part is provided in accordance with the SLA. However, specific developments carried out for the Client are only covered by a specific, optional and separate maintenance contract, to be subscribed to separately.
The Client expressly acknowledges and accepts that, where the Platform is made available on its internal environment, SMART GLOBAL may under no circumstances intervene in any malfunction relating to the Client's own hosting and/or information system. SMART GLOBAL shall not be liable in this respect.
The Parties may, under the special terms set out in the Quote, agree on the provision by SMART GLOBAL to the Client of other services (training, project management, specific development services, etc.).
The Parties undertake to cooperate closely, to the best of their abilities and in complete good faith, to enable the proper performance of the Contract. In particular, the Parties undertake to keep each other informed and to spontaneously communicate to each other any events, information or documents useful for the proper use of the Platform and, more generally, for the proper performance of the Contract.
Should the Client, in the context of its compliance, wish to carry out an audit of the Platform, such audit shall be carried out at the Client's sole expense and shall comply with the following conditions: (i) the auditor appointed by the Client shall under no circumstances be a direct or indirect competitor of SMART GLOBAL, (ii) the Client shall give at least fifteen (15) business days' notice before the audit is carried out and notify SMART GLOBAL of its audit request, specifying the reasons for and scope of the audit, (iii) the audit shall be carried out at the Client's sole expense, (iv) the auditor may only access information and documents relating to the Platform, excluding the source code of the Platform and any other information concerning the products and services provided by SMART GLOBAL or its business, and (v) the auditor shall be bound by a confidentiality obligation at least as strict as that provided for herein.
SMART GLOBAL will make available to the auditor a dedicated contact person from its company, with the skills necessary to meet the needs of the audit. This contact person will be made available to the Client free of charge for one business day. Beyond that, their availability will be invoiced to the Client at a daily rate of 1,200 euros excluding taxes.
6.1. Intellectual property rights in the Platform
The Client acknowledges and accepts that all rights, title and interest in the Platform (including its architecture, software, databases, data, textual or visual and multimedia content appearing on or disclosed via the Platform), the Services, the Frameworks, their documentation, and the names, signs and logos used on the Platform and/or by SMART GLOBAL (the "Protected Elements") are protected by intellectual property rights (including, without limitation, all rights attached to works of authorship, including economic and moral copyrights, all property rights relating to patents, trademarks, designs and models, software, database producers' rights, domain names, and all other intellectual property rights, worldwide, whether already or subsequently filed or registered), and belong exclusively to SMART GLOBAL or to third parties who have authorised SMART GLOBAL to exploit them. The Contract confers on the Client no right or interest in the Protected Elements, but only a limited right to access and use the Platform and the Services under the conditions defined below.
SMART GLOBAL shall under no circumstances assign or grant more rights than it holds with respect to third parties, and it is noted that such third parties remain free to take legal action in the event of infringement of their rights.
Subject to full payment by the Client of the sums set out in the Quote, SMART GLOBAL grants the Client, for the term of the Contract as provided in the Quote, worldwide, a non-exclusive, non-assignable and non-transferable licence to access and use the Platform and the Services subscribed to, for its own needs and solely for the purposes of its professional activity, with a right to sub-license to Users under the same conditions.
The Client undertakes not to use the Platform and the Services beyond the limits authorised by the Contract. The Client further undertakes not to perform, nor to allow or authorise a User or a third party to perform, any of the following acts: (i) decompile or disassemble the Platform and/or the Services, reverse engineer them or otherwise attempt to obtain their source code, in whole or in part; (ii) create derivative works of, adapt, modify, translate or alter the Platform and/or the Services, in whole or in part, or allow all or part of any of their elements to be combined with or incorporated into other works, including software works; (iii) rent, sub-license, sell, lend, disclose or transfer the Platform, the Protected Elements and/or the Services to any third party, or allow any third party to access and use the Platform and the Services, in whole or in part, without the prior written consent of SMART GLOBAL.
Any representation, reproduction and/or exploitation, in whole or in part, of SMART GLOBAL's distinctive signs, of whatever nature, is strictly prohibited without the prior, express and written authorisation of SMART GLOBAL.
6.2. Intellectual property rights in the Data
The data integrated 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 organising, managing, maintaining and/or supporting the Platform, and (ii) subject to and provided that any personal data contained in the Data has been anonymised beforehand, in order to improve the functionality and performance of the Platform.
By way of exception to the preceding paragraph, if the Client activates the automatic monitoring of its subcontracting organisations on the Platform, SMART GLOBAL may contact such organisations in order to support them in their compliance monitoring process and, where applicable, offer them a subscription to its Services.
The Client shall indemnify SMART GLOBAL against any third-party demand, claim or action, on any basis whatsoever, relating to the Data and the intellectual property rights attached thereto.
With regard to the Integrated Data, the Client undertakes, as owner of the Data and user of a generative AI system, to comply with all applicable regulations in this area, and in particular any rules arising from the European regulation known as the Artificial Intelligence Act.
In particular, and without limitation, the Client:
– undertakes not to disseminate disinformation: the Client is prohibited from disseminating false or misleading information;
– ensures that the Data does not contain discriminatory bias;
– is transparent about its use of a generative AI system;
– promotes fairness and diversity: the Client strives to promote fairness and diversity in the use of the generative AI system, ensuring that the Generated Data is fair and representative of diverse perspectives;
– regularly monitors and assesses the impact of the use of a generative AI system on Users and on its business.
The Client shall indemnify SMART GLOBAL against any third-party demand, claim or action, for any cause and on any basis whatsoever, relating to the Data, image rights and all intellectual property rights attached thereto. Accordingly, the Client shall compensate SMART GLOBAL in the event of any third-party action.
7.1. Price
The price of the subscription to the Platform is set out in the Quote or in the price list applicable on the date of subscription. It is expressed in euros excluding taxes. Where applicable, VAT will be added at the rate applicable on the invoice date.
Prices are set in the Quote according to the commitment period. If the Client benefits from a commercial discount in return for a commitment period, it acknowledges that the full subscription for the agreed term will become payable 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 commitment period.
Applicable prices depend on the Client's headcount. Accordingly, the Client undertakes to declare its headcount no later than one month before the renewal date of the Contract.
The Client is exempt from this declaration if its headcount falls within the highest band defined in the price list.
If the Client is a group of companies, it may designate only those subsidiaries that will benefit from the subscription. In that case, the headcount taken into account is the total of the designated subsidiaries, and not the total of the group.
Any usage in excess of the subscription will be invoiced separately, in particular in the event of use of Time Credit applicable to the specific services defined in the Quote or in the price list.
Time Credit corresponds to the number of days required for integration, training, SSO set-up, data import, technical assistance, automation, maturity plan, etc.
Likewise, the price of hosting will be invoiced separately.
All expenses incurred by SMART GLOBAL for the purposes of and at the request of the Client (travel, on-site meetings, etc.) will be invoiced additionally.
7.2. Price revision
Each year, on 1 January, SMART GLOBAL revises the prices of the Subscriptions on the basis of the SYNTEC index. The new price is calculated according to the formula: New Price = Previous Price × [1 + 2 × (Latest Index / Previous Index − 1) + 2%]. If the resulting increase is less than 5%, a minimum increase of 5% will be applied. The reference used for this revision will be the latest SYNTEC index published on the revision date, compared with the index in force on the date of signature of the Quote. Should either index cease to exist, the Parties shall consult each other to define one or more new indices so as to maintain an equivalent revision formula.
The Syntec index is published at https://www.syntec.fr/indicateurs/indice-syntec/
7.3. Payment terms
Unless otherwise stipulated in the Quote, the price is payable annually in advance.
Invoices are payable within thirty (30) days of their date of issue, by bank transfer. The Client expressly agrees that invoices may be sent to it by email.
Any late payment will incur a late payment penalty calculated on the basis of an interest rate equal to three (3) times the French statutory interest rate, without any reminder being necessary. A fixed indemnity of forty (40) euros for recovery costs will also be due.
Without prejudice to the foregoing, SMART GLOBAL reserves the right, five (5) business days after a formal notice to pay sent to the Client by registered letter with acknowledgement of receipt has remained wholly or partly unsuccessful, to suspend Users' access to the Platform until full payment of the sums due.
8.1. Term of the Contract
The Contract is entered into from the date of signature of the Quote for the term stated therein, which may not be less than three (3) years. The Contract will be tacitly renewed for successive periods of three (3) years, unless terminated by either Party by registered letter with acknowledgement of receipt at least six (6) months before the expiry of the current period.
During the notice period, SMART GLOBAL undertakes to maintain the Platform in the same working order and to correct any anomalies that the Client may discover during this period. However, the Client expressly acknowledges and accepts that no updates and/or functional upgrades to the Platform will be provided during the notice period.
8.2. Termination of the Contract
In the event of a breach by a Party of any of its contractual obligations, the other Party may terminate the Contract automatically and without legal formality, after formal notice to the defaulting Party by registered letter with acknowledgement of receipt has remained wholly or partly unsuccessful for a period of thirty (30) days. Termination shall take effect immediately and without prejudice to any damages to which the injured Party may be entitled.
8.3. Consequences of expiry and/or termination of the Contract
Sums paid by the Client before the expiry or termination of the Contract shall remain the property of SMART GLOBAL. Upon expiry of the Contract or on the effective date of its termination, all sums still owed by the Client to SMART GLOBAL shall become immediately due and payable.
Upon expiry or termination of the Contract, for any reason whatsoever, the Client shall immediately cease all use and exploitation of the Platform.
Where the Platform is made available to the Client in SaaS mode, the Client will be invited, during the notice period following 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, upon request, within thirty (30) calendar days, all the Data in a format readable by standard market software. Any technical and/or operational assistance with the recovery of the Data that may be requested by the Client will be subject to a separate quote from SMART GLOBAL.
SMART GLOBAL represents and warrants that it holds all the rights, titles, licences and authorisations necessary to enter into the Contract. SMART GLOBAL warrants that the Platform it provides complies with the state of the art and with the applicable laws and regulations in force on the date of the Contract, does not breach any applicable law and does not infringe the rights of third parties, in particular intellectual property rights.
SMART GLOBAL represents and warrants that it holds all the intellectual property rights necessary for the purposes hereof. Accordingly, SMART GLOBAL shall indemnify the Client against any claim, demand or action for infringement relating to the Platform, provided that the Client (i) notifies SMART GLOBAL of such claim or action without delay, (ii) allows SMART GLOBAL sole control of the defence and/or settlement of such claim, and (iii) provides SMART GLOBAL with all assistance necessary for the defence and/or resolution of the dispute. In the course of the defence or resolution of the dispute, SMART GLOBAL may, at its sole discretion, (i) obtain for the Client the right to continue using the Platform, (ii) modify/replace the infringing elements so that they no longer infringe the third party's rights, without impairing the proper functioning of the Platform, or (iii) terminate the Contract and refund the Client, on a pro rata basis, the price of the Quote already paid on the date of the dispute.
SMART GLOBAL gives no other express or implied warranty, including, without limitation, as to the continuity, performance and/or durability of the Platform and/or its fitness for a particular purpose or the suitability of the Platform for the Client's needs, nor does it warrant that it is free from anomalies, errors or bugs, or that it will operate without failure or interruption. The Platform is provided "as is" and "as available".
Where the Platform is made available to the Client in SaaS mode, SMART GLOBAL undertakes to use all means to ensure the integrity of the network and servers against any external malicious act or known cyber attack. The servers are protected against intrusion by a firewall. Security updates for operating systems and antivirus software are installed regularly. Likewise, 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 risk of interruption and, more generally, the risks inherent in any connection and transmission over the Internet, the lack of protection of certain data against possible misappropriation and the risk of contamination by viruses circulating on the network.
SMART GLOBAL does not warrant that the Platform, or its servers in the case of provision in SaaS mode, will be free at all times from 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 IT equipment made available to Users against any attack.
SMART GLOBAL gives no warranty as to the content generated by the artificial intelligence made available to the Client. SMART GLOBAL shall not be liable for any erroneous information so generated.
SMART GLOBAL cannot guarantee the accuracy, completeness, timeliness or any 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 shall ensure that such Data is free from viruses or any other component likely to cause damage to the Platform.
It is expressly agreed that SMART GLOBAL is bound by an obligation of means in providing the Platform and the Services to the Client. The Client expressly acknowledges having received from SMART GLOBAL all the information necessary to assess the suitability of the Platform for its needs and to take all appropriate precautions for its implementation.
SMART GLOBAL shall under no circumstances be liable for any demand, claim or action resulting from use of the Platform not authorised by the Contract or not in accordance with the conditions of use set out in the Contract.
Likewise, SMART GLOBAL is only responsible for its own content, excluding content generated by artificial intelligence, and for its own settings. It shall under no circumstances be held liable in the event of modification of the Platform's operating flowcharts or of the content of the platform.
Under no circumstances shall SMART GLOBAL be liable for indirect damages of any kind suffered by the Client, including, without limitation, loss of profits, loss of revenue, loss of customers, any commercial disruption or damage to reputation, in connection with or resulting from the use of the Platform or the Services.
The Client expressly acknowledges that the Platform is used at its sole risk. No advice or information, oral or written, obtained by the Client and/or a User when using the Platform shall create any warranty not expressly provided for in the Contract, nor render SMART GLOBAL liable for any damage of any kind caused to the Client, a User or third parties as a result of misuse of the Platform, in breach of the recommendations and instructions given by SMART GLOBAL, of the provisions of this article and, more generally, of the Contract.
In any event, should SMART GLOBAL be held liable on account of a proven fault on its part, SMART GLOBAL's overall, total and cumulative liability shall be expressly limited, for all causes combined, to the direct and foreseeable damage suffered by the Client, and shall not exceed the amount of the sums paid by the Client during the twelve (12) months preceding the event giving rise to liability.
SMART GLOBAL may freely use subcontractors to provide all or part of the services subscribed to by the Client.
However, where SMART GLOBAL or the Client considers 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 relevant service in the name and on behalf of the Client.
It is expressly noted that, in the event of an amicable or legal claim against SMART GLOBAL arising from a fault of a subcontractor in the performance of its obligations, SMART GLOBAL shall always be entitled to join such subcontractor as a third party to seek indemnification.
Each Party undertakes to take out civil liability insurance with a reputably solvent insurance company and to maintain it throughout the term of the Contract in order to cover the risks relating to the performance of the Contract and any damage it may incur in the course of performing the Contract. At the request of the other Party, each Party must be able to provide evidence of such insurance.
The Contract and all of its terms are considered confidential, as is all information, data and documents of any kind communicated by one Party to the other for the purposes of the Contract, whether orally, in writing or electronically, including, but not limited to, activity reports, assignment orders, software, processes, methods, formulas, concepts, industrial strategies, marketing plans, trademarks or know-how, whether or not such information is protectable under any intellectual and industrial property right (hereinafter the "Confidential Information").
Each Party undertakes to:
– protect and treat in the strictest confidence the Confidential Information that has been or will be communicated to it by the other Party or brought to its attention by the other Party;
– not disclose to any third party, without the prior written consent of the other Party, the nature or content of the Confidential Information received from the other Party, directly or indirectly;
– use such Confidential Information solely for the purposes of performing the Services under the Contract or its performance;
– not copy, reproduce or duplicate all or part of 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 undertaking does not apply to information:
– that was in the public domain prior to its disclosure and/or communication, or that enters the public domain after its communication and/or disclosure without any breach by the receiving Party;
– lawfully received from a third party without breach of this Contract;
– lawfully in the possession of the receiving Party prior to its disclosure.
In accordance with article 9 and given the characteristics and limitations of the Internet, the Client acknowledges that SMART GLOBAL is bound by an obligation of means with regard to the security of the Data and cannot guarantee that there will be no breach of the integrity or confidentiality of the Data.
If the Receiving Party is required to disclose Confidential Information received from the Disclosing Party by virtue of a law or regulation, a judgment or a decision of a lawfully acting body, the Receiving Party shall inform the Disclosing Party as soon as possible, so as to enable the latter to take all measures to best protect its Confidential Information.
The Parties are bound by this obligation for as long as the data concerned has not become public, unless the Party concerned gives specific prior written consent to the lifting of confidentiality.
Each Party undertakes to ensure that its Personnel and any subcontractors comply with the confidentiality obligations set out in this article and assumes full responsibility for any breach of these obligations by its Personnel and any subcontractors.
Confidential Information remains the property of the Party that discloses it to the other Party. The transmission of Confidential Information to the other Party shall in no event be construed as conferring on the latter any right or interest in the Confidential Information, unless otherwise stipulated in the Contract.
The Parties undertake to return or destroy, according to the instructions of the other Party, the documents or copies thereof containing Confidential Information, immediately upon request of the Party concerned and at the latest upon termination or expiry of the Contract for any reason whatsoever.
This article shall survive the termination or expiry of the Contract for any reason whatsoever.
The Parties undertake to comply at all times with the regulations applicable to the protection of personal data, and in particular Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016, known as the "GDPR", and French Law No. 78-17 of 6 January 1978, as amended, known as the "Loi Informatique et Libertés".
In the case of hosting outside a processing arrangement, SMART GLOBAL does not act as a processor with respect to the hosted data.
In particular, the Parties undertake to implement and maintain appropriate security and confidentiality measures to ensure adequate protection of the personal data processed, commensurate with the risks that the processing poses to the rights and freedoms of the data subjects. These measures are intended in particular to (i) protect personal data against destruction, loss, alteration and disclosure to unauthorised third parties and (ii) restore the availability of and access to personal data in a timely manner in the event of a physical or technical incident. The Parties also undertake to implement a procedure for regularly testing, analysing and evaluating the effectiveness of their technical and organisational measures to ensure the security of the processing.
For more information on 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/legal-en/legal-information-privacy-policy-en
ARTICLE 15 - FORCE MAJEURE
The Parties shall not be held liable if the non-performance of or delay in performing any of their obligations, as described herein, results from a case of force majeure within the meaning of article 1218 of the French Civil Code. For its duration, the force majeure event suspends the performance of the obligations of the Party invoking it.
In any event, 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 to resume performance of its obligations as soon as the event invoked has ceased.
However, if the force majeure events last for more than one (1) month, either Party shall be entitled to terminate the Contract.
During the term 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 own behalf or on behalf of third parties, any software directly or indirectly competing with the Platform or the Services, in France or abroad.
For reasons of confidentiality, protection of trade secrets and prevention of conflicts of interest and corruption, the Client undertakes not to engage employee consultants or contractors of a company competing with SMART GLOBAL to assist it with project management, integration, configuration, installation, etc., or the monitoring of the Solution. In any event, the Client undertakes to disclose the name of the person and of the company on whose behalf they act before any recruitment or assignment, in good faith and with full transparency.
Should the Client fail to comply with this undertaking, it shall owe SMART GLOBAL, automatically and without prior formal notice, a fixed penalty set as of now at €50,000 (fifty thousand euros), without prejudice to any other rights and remedies, and in particular SMART GLOBAL's right to seek compensation for the loss suffered and/or to obtain an order, subject to a penalty payment, for the cessation of any wrongful conduct.
This penalty clause shall apply without SMART GLOBAL having to justify the extent or nature of its loss.
SMART GLOBAL is authorised 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 SMART GLOBAL's name, trademark and logo as a commercial reference, except in the event of termination for any reason whatsoever.
18.1. Assignment – Transfer of the Contract
The Client hereby gives its prior and irrevocable consent, within the meaning of article 1216 of the French Civil Code, to the assignment or transfer by SMART GLOBAL of the Contract, in whole or in part, together with all the rights and obligations arising therefrom, to any third party of its choice, and in particular to any company controlling, controlled by or under common control with SMART GLOBAL within the meaning of article L. 233-3 of the French Commercial Code, as well as in the event of a merger, demerger, partial contribution of assets, universal transfer of assets and liabilities or transfer of all or part of SMART GLOBAL's business. SMART GLOBAL will inform the Client of such assignment or transfer by any written means, including by email. Such assignment or transfer shall not require any further consent from the Client and shall not give rise to any right of termination or compensation.
The Client may not assign or transfer the Contract, in whole or in part, to a third party without the prior written consent of SMART GLOBAL.
18.2. 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 the other, neither Party having the power to bind the other or to sign in the name and on behalf of the other, each Party alone bearing the risks of its own business. Neither Party shall be liable for the acts or omissions of the other Party, nor for the acts or omissions of their staff in the course of performing the Services.
18.3. Entire agreement
The Contract and each Quote form a single contractual whole and constitute the entire agreement between the Parties. They supersede all prior proposals, communications or agreements, written or oral, relating to the subject matter of the Contract. In the event of any conflict between the provisions of the Contract and those of a Quote, the provisions of the Quote shall prevail.
18.4. Amendment of the Contract
SMART GLOBAL reserves the right to amend the terms of the Contract at any time without notice. In the event of amendment, the Contract applicable to the Client shall be the one in force on the date of the Quote.
18.5. Severability
If one or more provisions of the Contract are held to be invalid or declared as such pursuant to a law, a regulation or a final decision of a competent court, the other provisions of the Contract shall nevertheless retain their full force and effect. The Parties agree to negotiate in good faith the amendment or replacement of the invalid provision. To this end, the Parties shall work together to replace the invalidated provision with a new clause respecting the spirit of that provision and of the Contract.
18.6. Tolerance – No waiver
It is formally agreed that any tolerance or waiver by either Party in the application of all or part of the undertakings provided for in the Contract, whatever their frequency and duration, shall not constitute an amendment of the Contract, nor give rise to any right whatsoever.
18.7. Notices
Except where a provision hereof provides otherwise, it is expressly agreed between the Parties that exchanges between them may take place by any means, in particular by email.
The Parties agree that a paper printout of an email constitutes valid evidence of the content of the exchanges.
The Parties implement all security measures to ensure the availability, integrity and confidentiality of email files sent via the Internet. At the same time, they implement all necessary measures, such as regularly updated and properly configured firewalls and antivirus software, to protect themselves as effectively as possible against intrusions, attacks and the spread of viruses, in order to ensure the availability, integrity and confidentiality of the email files received. The Parties shall keep all messages transmitted relating to the subject matter of the Contract in the most appropriate and secure manner possible.
18.8. Address for service
For the performance of these General Terms and their consequences, the Parties elect domicile at their respective registered offices as stated at the head of the Contract.
18.9. Electronic signature
Where applicable, each Party irrevocably agrees to use the electronic signature procedure for the Contract on the platform used for this purpose by SMART GLOBAL.
The Contract is governed by French law, to the exclusion of any other legislation. If the Contract is drawn up in several languages, only the French version shall prevail.
