The purpose of these general terms and conditions of service provision is to define the terms and conditions under which the company SMART GLOBAL GOVERNANCE, a simplified joint-stock company, with a capital of 3,350,535.32 euros, having its registered office at 300 rue du Vallon, 06560 Valbonne, France, registered with the Grasse Trade and Companies Register under number 853 951 556 (hereinafter "SMART GLOBAL") "), provides the Client with the Platform and the related Services, in return for the 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:
(i) Client: refers to any professional, natural or legal person, registered with the Trade and Companies Register or any equivalent commercial register, identified as a customer of SMART GLOBAL in the Quotation.
(ii) Contract: refers to these general terms and conditions and the Quotation, as well as any annexes and amendments thereto;
(iii) Quote: refers to the document signed by the Parties, the purpose of which is 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 and any other special conditions negotiated between the Parties. The Quotation is an integral part of the Contract.
(iv) 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 ;
(v) Platform: refers to the software platform called 'Smart Global Governance' for the organisation and management of compliance developed and published by SMART GLOBAL and made available to the Client in accordance with the terms of the Quotation and the Contract.
(vi) 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 he or she is located and the terms of his or her access.
(vii) Affiliate: means any entity that directly or indirectly controls, is controlled by, or is under common control with SMART GLOBAL, where "control" means the ownership of more than fifty percent (50%) of the voting securities or equivalent voting interest.
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 governance, risk management and compliance management of the user entity with international and national laws, regulations, repositories, normative standards and/or certifications and, depending on the services subscribed to by the entity, to digitize existing standards on the Platform and/or to create its own internal standards (all the services offered by the Platform hereinafter referred to as the "Services").
2.2. Modalities of provision - Accommodation
SMART GLOBAL offers several models for making the Platform available, depending on the choices made by the Client in the Quote.
2.2.1. SaaS delivery
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 Customer's choice, SMART GLOBAL offers two types of hosting:
- Shared hosting, on data servers shared by several SMART GLOBAL customers;
- Dedicated hosting, on servers made specially available to the Client.
Any Data, and in particular any personal data, collected and processed through the Platform will be stored on the server(s) of this hosting provider. 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 instruction from SMART GLOBAL. It does not have the right to use the Data, except for the purpose of performing the technical services of hosting and managing the 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 able 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 services agreement, accessible at the following address:
https://www.smartglobalgovernance.com/fr/sla/.
2.2.2. Provision on the Customer'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 stored in this way.
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 costs of the installation are specified in the Estimate.
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 backing up the Data and undertakes to carry out regular incremental and complete backups of the Data and to use suitable 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 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 ensures that Users act as professionals for the purposes of their professional activity and undertake to use the Platform only for the purposes of their activity.
The use of the Platform by Users is governed by the general terms and conditions of use of the Platform, which are available at any time on the Platform.
In any event, the Platform will be used under the sole control, direction and responsibility of the Client. Consequently, the Client is responsible, without this list being exhaustive, (i) the implementation of all useful processes 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 it has access to the Platform. Where applicable, the Client shall delete and/or update the access and authorisation according to the authorisations it gives or removes to the 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 that does not comply with the general terms and conditions of use, in the event of the User's failure to comply with 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, notice or compensation, all or part of a User's access to the Platform, which the Client expressly accepts. SMART GLOBAL may pronounce this suspension or termination without prejudice to all other rights, actions and remedies that it may have with a view to compensating for the damage it may have suffered as a result of these breaches.
2.5. Smart Colleague
For any subscription to the Platform, the Client has limited access to the artificial intelligence SMART COLLEAGUE developed by SMART GLOBAL. The service is limited to 1000 operations per month.
Each operation corresponding 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 "Request").
The customer has the option of subscribing to an additional access option to SMART COLLEAGUE, he is invited to contact SMART GLOBAL in this regard.
The Client acknowledges that, in order to benefit from the Services, it interacts with a machine, powered by the capabilities of generative AI. When using SMART COLLEAGUE, the Customer does not interact with a human being at any time. SMART GLOBAL will not suggest or simulate a human presence at any time.
2.5.1. Data Integration
In order to be able to use SMART COLLEAGUE, the Customer must carry out a Data integration. Integration is an essential prerequisite for the operation of SMART COLLEAGUE (the "Integrated Data").
Responses to queries are based exclusively on the data embedded as of the date of the query.
The Client is solely responsible for the integration of the Data, its quality and completeness. The Client undertakes to integrate Data that belongs to it or to third parties that have authorised it to use it, and that comply with the general terms and conditions of use of the Platform.
2.5.2. Use of Generated Data
The Generated Data is the result of the processing, classification and rationalization of the Integrated Data by the Client, to the exclusion of any other data or information (the "Generated Data"). The Platform is not intended to source information outside the Client's IT environment (no internet source or third-party data is used).
The Client is fully aware that its Generated Data is from an AI system that may contain inaccuracies and/or inaccuracies.
The Client, as a professional in its field of activity, is solely responsible for the way in which the Generated Data is interpreted, used and applied in its professional context. This includes vigilant monitoring to verify the quality, reliability and relevance of the Data Generated.
The Client is solely responsible for the decision that will be made from the Generated Data. The Client will be required to exercise professional judgment to make informed decisions based on its own objectives, requirements and quality standards.
ARTICLE 3 - TECHNICAL SUPPORT AND MAINTENANCE OF THE PLATFORM
Depending on the method of provision of the Platform chosen by the Client in the Quotation, SMART GLOBAL will provide technical support to Users and maintenance of the Platform under the conditions and in accordance with the terms and conditions provided for in the SMART GLOBAL service agreement available at https://www.smartglobalgovernance.com/fr/sla/ . In case of customization of the Platform, the maintenance of the standard part is provided in accordance with the SLA. On the other hand, specific developments carried out for the Client are only covered by a separate specific optional maintenance contract, to be subscribed.
The Client expressly acknowledges and accepts that in the event that the Platform is made available on its internal environment, SMART GLOBAL may in no way intervene in a malfunction related to the Client's own hosting and/or its information system. SMART GLOBAL will not be liable in this respect.
ARTICLE 4 - OTHER SERVICES
The Parties may, under the specific conditions set out in the Quotation, agree to the provision by SMART GLOBAL to the Client of other services (training services, project management services, specific development services, etc.).
ARTICLE 5 - COLLABORATION BETWEEN THE PARTIES
The Parties undertake to work closely together, 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 spontaneously communicate 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 performance 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 exclusive expense and comply with the following conditions: (i) the auditor mandated 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 carrying out the audit and notify its request for an audit to 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 concerning the products and services provided by SMART GLOBAL or its activity, and (v) the Auditor shall be subject to an obligation of confidentiality at least as strict as that provided 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 Customer, at a daily rate of 1200 euros excluding taxes.
ARTICLE 6 - INTELLECTUAL PROPERTY RIGHTS
6.1. Intellectual property rights on 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 the names, signs and logos used on the Platform and/or by SMART GLOBAL (the "Protected Elements") are protected by intellectual property rights (including, but not limited to, all rights associated with intellectual works, including economic and moral copyrights, all property rights relating to patents, trademarks, designs, software, rights of producers of databases, domain names, and all other intellectual property rights, throughout the world, whether already or subsequently registered or registered), and belong exclusively to SMART GLOBAL or third parties that have authorized SMART GLOBAL to exploit 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 the Services under the conditions defined below.
SMART GLOBAL does not assign or grant under any circumstances more rights than it holds over third parties and it is recalled 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 licence to access and use the Platform and the subscribed Services, for its own needs and for the sole purposes of its professional activity, with a right of sublicense to Users under the same conditions.
The Client undertakes not to use the Platform and the Services other than to the limits permitted by the Agreement. The Client further undertakes not to perform one or more of the following acts, nor to allow a User or a third party or to 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, implement reverse engineering or otherwise attempt to obtain its source codes, in whole or in part; (ii) create derivative works of, adapt, modify, translate or modify 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 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 use, in whole or in part, of SMART GLOBAL's distinctive signs, of any nature whatsoever, is totally prohibited, without the prior, express and written authorisation of SMART GLOBAL.
6.2. Intellectual property rights to the 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 organizing, managing, maintaining and/or supporting the Platform, and (ii) subject to and provided that the personal data contained in the Data has been previously anonymised, in order to enable 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 guarantees SMART GLOBAL against any application, claim or action by third parties, for any reason whatsoever and 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 the owner of the Data and as a 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, without this list being exhaustive, the Client:
- Agrees not to spread disinformation: the Client is prohibited from spreading false or misleading information;
- Ensures that Data does not include Data with discriminatory biases;
- Provides transparency on its use of a generative AI system;
- Promotes Equity and Diversity: The Client strives to promote equity and diversity in the use of the generative AI system, ensuring that the Data Generated is fair and representative of diverse perspectives;
- Regularly monitors and evaluates the impact of the use of a generative AI system on Users and their business.
The Client guarantees SMART GLOBAL against any request, claim or action by third parties, for any cause and on any basis whatsoever, relating to the Data, the image rights and any intellectual property rights attached thereto. As such, the Client will indemnify SMART GLOBAL in the event of action by third parties.
ARTICLE 7 - FINANCIAL CONDITIONS
7.1. Price
The price of the subscription to the Platform is set out in the Quotation or the price list applicable on the day of subscription. It is in euros excluding taxes. If applicable, VAT will be added in addition, at its rate applicable on the date of invoice.
The rates are set in the Quote according to the duration of the commitment. If the Client benefits from a commercial discount in exchange for a duration commitment, it acknowledges that the entire subscription for the agreed term will become due in the event of early termination. In addition, as 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. Consequently, the Client undertakes to declare the number of employees no later than one month before the expiry date of the renewal of the Contract.
The Client is exempt 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, and 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 Quote or on the price list.
Time Credit corresponds to the number of days needed for integration, training, SSO implementation, data import, technical assistance, automation, maturity plan, etc.
Similarly, the price of the accommodation will be invoiced separately.
Any costs incurred by SMART GLOBAL for the needs and at the request of the Client (travel, on-site meeting, etc.) will be subject to additional invoicing.
7.2. Price revision
Every year, on January 1st, SMART GLOBAL revises the prices of Subscriptions based on the SYNTEC index. The new price is calculated according to the formula: New Price = Old Price × [1 + 2 × (Last Index / Previous Index − 1) + 2%]. If the resulting increase is less than 5%, a floor increase of 5% will be applied. The benchmark used for this revision will be the last SYNTEC index published on the date of the adjustment, compared to the one in force at the time the Quote was signed. In the event that one of the indices were to be discontinued, the Parties would consult to define one or more new indices to maintain an equivalent adjustment formula.
The Syntec index being 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 issue of the invoice, 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 - DUREE – RESILIATION
8.1. Duration of the Agreement
The Contract is concluded from the date of signature of the Quote for the duration appearing on it not less than three (3) years. The Contract will be tacitly renewed for successive periods of three (3) years, unless terminated by one of the Parties, 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 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 Agreement
In the event of a Party's breach of any of its contractual obligations, the other Party may terminate the Contract, by operation of law and without legal formality, after formal notice from the defaulting Party, by registered letter with acknowledgement of receipt, which has remained partially or totally unsuccessful for a period of thirty (30) days. The termination shall take effect immediately and shall be without prejudice to any damages to which the Injured Party may be entitled.
8.3. Consequences of the expiration and/or termination of the Agreement
The sums paid by the Client before the expiry or termination of the Agreement 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 operation 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 so requests, within thirty (30) calendar days, all the Data in a format readable by the current 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, title, 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 the applicable laws and regulations existing on the date 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 claim, 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 the 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 using the Platform, (ii) modify/replace the infringing correlations so that they no longer infringe the rights of the third party, without harming the proper performance of the Platform, or (iii) terminate the Contract and reimburse the Client in proportion to the price of the Quotation that it has already paid to 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 run without failure or interruption. The Platform is distributed "as is" and as available.
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 software 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 that may 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 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 that may 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 the Services to the Client. The Client expressly acknowledges that it has received from SMART GLOBAL all the necessary information, allowing it to assess the adequacy of the Platform to its needs and to take all the necessary precautions for its implementation.
SMART GLOBAL will not be liable in any way for any request, claim or action resulting from use of the Platform not authorized by the Agreement or not in compliance with the terms and conditions of use provided for in the Agreement.
Similarly, 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, any commercial disturbance, 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 damage, of any nature whatsoever, caused to the Client, a User or third parties as a result of 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 is held liable due to a proven fault on the part of the latter, the total cumulative global liability of SMART GLOBAL shall be expressly limited, for all causes, 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 - OUTSOURCING
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 Customer deems it necessary, SMART GLOBAL will directly connect the Customer and 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 liability against SMART GLOBAL due to a fault of a subcontractor in the performance of its obligations, SMART GLOBAL will always have the possibility of calling the said subcontractor as a guarantor.
ARTICLE 12 - INSURANCE
Each Party undertakes to take out civil liability insurance with an insurance company that is known to be solvent and to maintain civil liability insurance throughout the duration of the Contract to cover the risks relating to the performance of the Contract and to cover any damage that may be incurred by it in the context of the performance of the Contract. At the request of the other Party, each Party must be able to justify the purchase of such insurance.
ARTICLE 13 - CONFIDENTIALITY
The Contract and all of its terms are considered confidential, 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, orally, in writing or electronically and including, in particular, but not exclusively, activity reports, mission orders, software, processes, methods, etc. 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 the Confidential Information that has been or will be provided to it by the other Party or that has been brought to its knowledge by the other Party;
- not to reveal 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 the said Confidential Information only for the sole purpose of performing the Services subject to the Contract or its performance,
- not to copy, reproduce, 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:
- which have entered the public domain prior to their disclosure and/or communication or which will fall into the public domain after their communication and/or disclosure without any failure by the Party that received them;
- that has been received from a third party lawfully without breach of this Agreement;
- that were lawfully in the possession of the Party that received it prior to its 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 any law or regulation, judgment or decision of a legally exercising organization, the Receiving Party shall notify the Disclosing Party of such request as soon as possible, so as to enable the Disclosing Party to take all steps to best safeguard its Confidential Information.
The Parties shall be bound by this obligation as long as the data concerned has not become public, unless the Party concerned has given a specific, prior written consent to a lifting of confidentiality.
Each Party shall be committed to the compliance of its Personnel and any subcontractors with the confidentiality obligations detailed in this Article and shall assume all liability in the event of any failure by its Personnel and any subcontractors to comply with these obligations.
Confidential Information remains the property of the Party disclosing it to the other Party. In no event shall the transmission of Confidential Information to the other Party be construed as conferring on the other Party any rights or interests in the Confidential Information, except as provided for in the Agreement.
The Parties undertake to return or destroy, at the instructions of the other Party, the documents or their reproduction containing Confidential Information, immediately upon request of the Party concerned and at the latest upon termination or expiration of the Agreement for any reason whatsoever.
This section shall survive the termination or expiration of the Agreement for any reason.
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 hosting outside of subcontracting, SMART GLOBAL does not have the status of subcontractor concerning the hosted data.
In particular, the Parties undertake to put in place and maintain appropriate security and confidentiality measures to ensure adequate protection of the personal data processed, appropriate to the risks generated by their processing on the rights and freedoms of the data subjects. These measures are aimed in particular at (i) protecting personal data against destruction, loss, alteration, disclosure to unauthorized third parties and (ii) ensuring the restoration of the availability of personal data and access to it within an appropriate timeframe 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 safety of processing.
To find out more about the personal data protection rules published by SMART GLOBAL, the Client is invited to consult the SMART GLOBAL Privacy Policy, available at the following address: https://www.smartglobalgovernance.com/fr/politique-de-confidentialite.
ARTICLE 15 - FORCE MAJEURE
The Parties shall not 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 cases of force majeure have a duration of more than one (1) month, they will 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 marketed, on its behalf or on behalf of third parties, any software that competes directly or indirectly 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 recruit consultants who are employees or service providers of a company that competes with such a competing company, to assist it in the project management, integration, configuration, installation, etc. Monitoring the Solution. In any case, the Client undertakes to give the name of the person and the company for which they are involved before any recruitment or assignment, in good faith and in complete transparency.
In the event that the Client does not comply with this commitment, it shall, by operation of law and without prior notice, be liable 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 request compensation for the damages it has suffered and/or to have the cessation of any wrongful behaviour 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 Customer's name, trademark and logo for commercial reference, in particular on its website or any other medium.
The Client may also use the name, brand 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 counterparty, neither Party having the authority to bind the other or to sign in the name and on behalf of the other, each Party alone insuring 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 in the course of 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 any prior written or oral proposals, communications or agreements relating to the subject matter of the Contract. In the event of any conflict 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 change the terms of the Agreement at any time without prior notice.
18.4. Divisibility
In the event that one or more provisions of the Contract are held to be invalid or declared as such pursuant to a law, 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 the frequency and duration of such commitments, shall not constitute a modification of the Contract, nor shall it generate any right whatsoever.
18.6. Notifications
Except in cases where a provision herein provides otherwise, it results from an express agreement between the Parties that exchanges between them may take place by any means, in particular by electronic messaging.
The Parties agree that the paper printing of an email provides 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 regularly updated and correctly configured antivirus software, 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 Agreement.
18.7. Election of address
For the execution of these Terms and Conditions and their consequences, the Parties respectively elect domicile at their registered offices appearing at the top of the Contract.
18.8. Assignment of the Agreement
The Client hereby expressly and irrevocably consents to SMART GLOBAL freely assigning this Agreement to any company within its group or to any third party, including in connection with any merger, acquisition or restructuring transaction. Such assignment shall be notified to the Client within thirty (30) days. The assignee shall be bound by all obligations under this Agreement. The Client may not assign this Agreement without the prior written consent of SMART GLOBAL.
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 SMARTGLOBAL.
ARTICLE 19 - APPLICABLE LAW AND JURISDICTION
The Contract is subject to French law, to the exclusion of any other legislation. If this Agreement is drafted in more than one language, only the French version shall prevail.
The Parties to this contract undertake to make every effort 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.
