GENERAL TERMS OF PROVISION OF A SOFTWARE PLATFORM
The purpose of the present general terms for provision of services is to define the methods and terms by which the company SMART GLOBAL GOVERNANCE, a simplified joint-stock company with capital of 1.445.722,24Euros, having its registered office at 1240 route des Dolines, 06560 Valbonne, Buropolis, France, registered in the Trade and Companies Register in Grasse under the number 853 951 556 (hereinafter “SMART GLOBAL“), shall provide the Client with the Platform and the Services relating thereto, in consideration for full payment of the price of them.
ARTICLE 1 – DEFINITIONS
When the initial letter is a capital letter the following terms shall have the meaning defined hereinafter, in the singular or in the plural form:
(i) Client: refers to all professionals, whether a natural person or legal entity, registered in the trade and companies register, or any equivalent commercial register, identified as a client of SMART GLOBAL in the Estimate.
(ii) Contract: refers to the present general terms and the Estimate, and any appendices and supplementary agreements they may have;
(iii) Estimate: refers to the document signed by the Parties, the purpose of which is subscription by the Client to the Platform and to the Services. It includes in particular a description of the subscribed Services, the terms of provision of the Platform, the price terms and all other special terms negotiated between the Parties. The Estimate forms an integral part of the Contract.
(iv) Data: refers, in connection with use of the Platform, to all information, data or content, which may include personal data, communicated, collected and/or processed by the Client in connection with use of the Platform;
(v) Platform: refers to the software platform called ‘Smart Global Governance’ for compliance organisation and management, developed and published by SMART GLOBAL, and made available to the Client in accordance with the terms of the Estimate and the Contract.
(vi) User: refers to the natural person who uses the services provided by the Platform and granted to the Client, who is employed by the Client or by subcontractors of the Client, and who is authorised to use all or part of the Platform and Services, regardless of their location, and the methods of 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 organise and manage actions to bring the user entity into statutory compliance with laws, regulations, codes and standards, regulatory standards and/or international and national certifications and, depending on the services purchased by the entity, to digitise existing standards on the Platform and/or create its own internal standards (all services provided by the Platform shall be referred to hereinafter as the “Services“).
2.2. Methods of provision; Hosting
The Platform is hosted on the servers made available to SMART GLOBAL by the hosting provider mentioned in the Estimate, and accessible from a web browser at the following address: smartglobal.com
As the Client sees fit, SMART GLOBAL offers two types of hosting:
- Shared hosting, on data servers shared by several clients of SMART GLOBAL;
- Dedicated hosting, on servers specially made available to the Client.
Except if SMART GLOBAL offers a subcontracted web hosting solution, SMART GLOBAL accepts no responsibility for web hosting.
The web hosting, excluding subcontracting, is reinvoiced to the Client on a disbursement basis, which implies the acceptance of the terms and conditions of the chosen web host.
All Data, and in particular all personal data, collected and processed through the Platform, shall be stored on the server(s) of this web host. This web host acts as a subcontractor of SMART GLOBAL within the meaning of the Regulations applicable to protection of personal data, only on written instructions from SMART GLOBAL. It does not have the right to use the Data, except for the purposes of performance of the technical hosting services and technical database management services, and only on the contractual terms signed between the web host and SMART GLOBAL, which cannot depart from the present article and the above-mentioned regulations.
Furthermore, SMART GLOBAL has not the ability to determine the nature of the Data which are stored by the Client on servers. Therefore, the Client ensures it complies with applicable regulations, in particular personal data regulations, and indemnifies SMART GLOBAL against any recourse from third parties.
SMART GLOBAL undertakes, under a duty to exercise skill and care, to do everything in its power to guarantee, as far as it is able, the availability of the Platform in accordance with the rate of availability stipulated in SMART GLOBAL’s service agreement, which may be viewed at the address https://www.smartglobal.com/sla/.
2.2.2. Provision in the Client’s internal environment (On Premises, Hybrid Cloud)
If the Client chooses to provide the Platform in its internal environment, the Platform may be deployed, as he wishes, on its hosting provider servers or on its own servers. In any event, the Client is solely liable for the security of the servers on which he deploys the Platform and of Data stored in this manner.
Depending on the Client’s technical constraints, the Platform shall be installed either by means of remote access to the Client’s IT installations, or directly in the Client’s premises. The methods and costs of installation are stipulated in the Estimate.
If the Platform is provided in the Client’s internal environment (On Premises or Hybrid Cloud), the Client shall be solely liable for backing up the Data, and undertakes to make regular incremental and full backups of the Data, and to use suitable and secure backup media.
All costs related to the access to the Platform and its use, be it hardware, software or internet access costs, are the exclusive 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, bearing in mind the nature and purpose of the Platform, the Client shall check that Users act as professionals for the needs of their professional activity and undertake to use the Platform only for the needs of their activity.
In any event, the Platform shall be used solely under the Client’s control, direction and liability. The Client shall consequently be liable, although this list is not restrictive, for (i) implementation of all effective measures intended to protect its equipment, application packages, applications and passwords against all viruses and intrusions; (ii) compliance with the technical prerequisites as defined in article 2.2 hereinbefore; (iii) errors committed in using the Platform; and (iv) use of the authentication resources allowing access to and use of the Platform. The Client shall ensure that no unauthorised person by it has access to the Platform. If applicable, the Client shall delete and/or update the logins and authorisation in accordance with authorisations which it shall give to the Users, or shall delete, directly from its administrator space on the Platform, if it has opened one in accordance with the Estimate, or failing this by making a request to SMART GLOBAL.
ARTICLE 3 – TECHNICAL SUPPORT AND MAINTENANCE OF THE PLATFORM
Depending on the method of provision of the Platform chosen by the Client in the Estimate, SMART GLOBAL shall provide technical support for the Users and maintenance of the Platform on the terms and using the methods stipulated in SMART GLOBAL’s service agreement available at the address https://www.smartglobal.com/sla/.
The Client acknowledges and expressly accepts that if the Platform is provided in its internal environment SMART GLOBAL shall not under any circumstances be able to intervene in connection with a malfunction relating to the Client’s own hosting arrangements, and/or its information system. SMART GLOBAL shall not be liable in any way with this regard.
ARTICLE 4 – OTHER SERVICES
The Parties may, on the special terms set out in the Estimate, agree to 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, as far as they are able, and in perfect good faith, to enable satisfactory performance of the Contract. The Parties undertake in particular to keep one another informed, and to communicate to one another, spontaneously, all events, information or documents which may be effective for satisfactory use of the Platform, and more generally for satisfactory performance of the Contract.
If, in connection with its action of bringing into compliance, the Client wishes to undertake an audit of the Platform, this audit must be undertaken at the Client’s exclusive expense, and comply with the following terms: (i) the auditor commissioned by the Client must not under any circumstances be a direct or indirect competitor of SMART GLOBAL, (ii) the Client must give notice of at least fifteen (15) working days before conducting the audit, and notify its audit request to SMART GLOBAL, giving details of the reasons for it, and its scope, (iii) the audit must be conducted at the Client’s exclusive expense, (iv) the auditor shall be able to access only data and documents relating to the Platform, and not the source codes of the Platform or any other information relating to the products and services supplied by SMART GLOBAL, or its activity, and (v) the auditor must be subject to an obligation of confidentiality at least as strict as that stipulated herein.
SMART GLOBAL shall make available to the auditor a key point of contact from its company, with the necessary competence to meet the requirements of the audit. The contact shall be made available to the Client free of charge for one working day. After this period provision will be invoiced to the Client, at a daily rate of 1200 Euros excluding tax.
ARTICLE 6 – INTELLECTUAL PROPERTY RIGHTS
6.1. Intellectual property rights over the Platform
The Client acknowledges and accepts that all rights, titles and interest regarding the Platform (including its architecture, its applications, databases, textual or visual content and multimedias), to the Services, to the Standards, to its documentation, and to the names, 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 rights and non-pecuniary rights, all ownership rights relative to patents, trademarks, designs and models, applications, rights of databases producers, domain names, and all other intellectual property rights, throughout the world, previously or subsequently filed or registered), and are the exclusive property of SMART GLOBAL or third parties which have authorised SMART GLOBAL to exploit them. The Contract shall not give the Client any right or interest over the Protected Elements, but only a limited right to access and to use the Platform and the Services, on the terms defined hereinafter.
SMART GLOBAL shall not in any case assign or grant more rights than it holds from third parties and it is reminded that the latter remain free to sue in the event of violation of their rights.
Subject to full payment of the sums mentioned in the Estimate by the Client, SMART GLOBAL grants the Client, for the term of the Contract as stipulated in the Estimate, for the whole world, a non-exclusive, non-assignable, non-transferable licence to access and use the Platform and the purchased Services, for its own requirements and solely for the purposes of its professional activity, with a right to sub-license to the Users on the same terms.
The Client undertakes not to use the Platform and the Services other than within the limits authorised by the Contract. The Client also undertakes not to accomplish one or more of the following acts, nor to enable the User or a third party, nor to authorise a user or a third party, to accomplish one or more of the following acts: (i) decompile or disassemble the Platform and/or the Services, implement reverse engineering, or attempt in any other manner to obtain its source codes, in whole or in part; (ii) create works derived from the Platform and/or the Services, adapt them, modify them, translate them, or make modifications to them, in whole or in part, or enable all or a proportion of one or more of their elements to be associated with or incorporated in other works, including software works; (iii) lease, sub-license, sell, lend, communicate or transfer the Platform, the Protected Elements and/or the Services to a third party, or enable a third party to access and use the Platform and the Services, in whole or in part, without SMART GLOBAL’s prior, written consent.
Any representation, reproduction and/or exploitation, whether total or partial, of SMART GLOBAL’s distinctive signs, of any kind whatsoever, is completely prohibited, unless authorised beforehand, expressly and in writing, by SMART GLOBAL.
6.2. Intellectual property rights over the Data
Data incorporated by Users on the Platform is the Client’s property.
The Client grants SMART GLOBAL a right to use the Data (i) for the requirements of organisation, management, maintenance and/or support of the Platform, and (ii) subject to and on condition that personal data contained in the Data has been anonymised beforehand, to enable the Platform’s functions and performance to be improved.
As an exception under 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 shall hold SMART GLOBAL harmless against all applications, claims or actions by third parties, for any reason whatsoever, and on any basis whatsoever, relative to the Data and to any intellectual property rights attached to it.
ARTICLE 7 – FINANCIAL TERMS
The price of subscription to the Platform is given in the Estimate or in the fee schedule which applies at the date of the subscription. It is expressed in Euros, before tax. If applicable, VAT shall be invoiced in addition, at the rate applicable on the invoice date.
Applicable tariffs depend on the number of Client’s employees. Consequently, the Client undertakes to declare the number of employees, not later than a month before the timeline for renewal of the Contract.
The Client is not required to perform this declaration if its number of employees is on the maximum range, as defined in the fee schedule.
If the Client is a group of related companies, it inclines the power to designated only the subsidiaries which shall take advantage of the subscription. In such a case, the number of employees is the total of all designated subsidiaries, and not the total of the group.
Every subscription overrun shall be subject to a supplementary and separate invoice, in particular during the use of Time-Credit which applies to provision of specific services defined in the Estimate or in the fee schedule.
The Time-Credit relates to the number of days required for the integration, training, implementation of the SSO, data import, technical assistance, automatization, maturity plan, etc.
Similarly, the web hosting price shall be subject to a separate invoice.
Any fee paid by SMART GLOBAL for the Client’s needs and on its demand (business trips, meetings in person…) shall be subject to a separate invoice.
7.2. Price revision
The price of subscription to the Platform may be revised once a year by SMART GLOBAL, on January 1st of each year, in accordance with changes in the SYNTEC index, which may not, however, be less than 5% of the price excluding tax paid by the Client the previous year.
The reference index used as the basis for this indexing shall be the latest SYNTEC index published on the date of the revision, by comparison with the original index published on the date of signature of the Estimate. If either index disappear the Parties shall reach an agreement concerning the new index or indices to devise a formula with comparable effect.
The price will be revised according to the formula below
- P1 = revised price
- P0 = original price or last revised price
- S0 = last SYNTEC index published on the date of the previous revision or original index (last published on the date of signature of the contract)
- S1 = last SYNTEC index published on the revision date.
With if P1< 5% then P1 = 5%
The SYNTEC index is published on https://www.syntec.fr/indicators/indice-syntec/
7.3. Payment terms
Unless otherwise stipulated in the Estimate the price shall be payable annually in advance.
Invoices are payable within a period of thirty (30) days from the invoice issue date, by bank transfer. The Client expressly accepts that the invoices shall be sent to it by email.
Any late payment shall lead to application of a late-payment penalty calculated on the basis of an interest rate equal to three (3) times the legal interest rate, without any notification being required. A flat-rate penalty of forty (40) Euros for collection costs shall also be due.
Without prejudice for the foregoing, SMART GLOBAL reserves the right, five (5) working days after notice to pay sent to the Client by registered letter with request for acknowledgement of receipt, which has gone completely or partially unheeded, to suspend the Users access to the Platform until full payment of the sums due.
ARTICLE 8 – TERM – TERMINATION
8.1. Term of the Contract
The Contract is concluded from the date of signature of the Estimate for the term given in it. The Contract shall be renewed tacitly in successive periods of one (1) year, unless it is terminated by one of the Parties, by registered letter with request for acknowledgement of receipt, at least three (3) months before expiry of the pending period.
During the notice period SMART GLOBAL undertakes to maintain the Platform in the same operational condition, and to correct any anomalies which are discovered by the Client during this period. However, the Client acknowledges and expressly accepts that no updates and/or functional upgrades of the Platform shall 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 shall be able to terminate the Contract, as of right and without legal formality, after giving notice to the Party in breach, by registered letter with request for acknowledgement of receipt, which has gone partially or totally unheeded for a term of thirty (30) days. Termination shall take effect immediately, and shall occur without prejudice for any damages which the injured Party might claim.
8.3. Consequences of Expiry and/or of termination of the Contract
Sums paid by the Client before expiry or termination of the Contract shall be retained by SMART GLOBAL. On expiry of the Contract, or on the date of effect of its termination, all outstanding sums due by the Client to SMART GLOBAL shall become payable immediately.
On expiry or termination of the Contract, due to any cause whatsoever, the Client shall immediately cease all use and operation of the Platform.
If the Platform is made available to the Client in SaaS mode the Client shall be requested, during the notice period as per the termination notification, to export the Data directly from the platform, following the procedure stipulated for this purpose. After the termination SMART GLOBAL shall return to any Client which makes such a request, within a period of thirty (30) calendar days, all Data, in a format which is legible by routine commercial software. All technical and/or operational assistance services to recover the Data requested by the Client shall be covered by a separate estimate by SMART GLOBAL.
ARTICLE 9 – GUARANTEES
SMART GLOBAL declares and guarantees that it has all the rights, titles, licences and authorisations required to conclude the Contract. SMART GLOBAL guarantees that the Platform which it provides is compliant with best practice and with the applicable legislation and regulations existing on the date of the Contract, and does not breach any applicable law, or infringe the rights of third parties, including intellectual property rights.
SMART GLOBAL declares and guarantees that it has all intellectual property rights required for the purposes hereof. This being so, SMART GLOBAL shall hold the Client harmless against all applications, claims or actions for infringement relating to the Platform, provided that the Client (i) promptly notifies SMART GLOBAL of the said claim or action, (ii) enables SMART GLOBAL to defend and/or settle the said claim, and (iii) gives SMART GLOBAL all necessary assistance in the defence and/or resolution of the dispute. In the defence or resolution of the dispute SMART GLOBAL may, as it alone sees fit, (i) obtain the right, for the Client, to continue to use the Platform, (ii) modify/replace the correlative infringing elements in order that they no longer infringe the rights of the third party, without impairing satisfactory performance of the Platform, or (iii) terminate the Contract and reimburse the Client pro rata with the price of the Estimate which it shall already have paid on the date of the dispute.
SMART GLOBAL does not give any express or implicit guarantee, including, although this list is not restrictive, regarding continuity, performance and/or the long-term existence of the Platform and/or regarding suitability for a particular use or adequacy of the Platform for the Client’s requirements. Nor does it guarantee that it is free of anomalies, errors or bugs, or that it will operate without malfunction or interruption. The Platform is distributed “as is”, and with such availability as it has.
When it makes the Platform available to the Client in SaaS mode, SMART GLOBAL undertakes to do everything in its power to ensure the integrity of the network and of the servers against all external malicious actions or all known computer-based attacks. The servers are protected against intrusions by a firewall. Security updates of the operating systems and antivirus programs are regularly installed. Similarly, access to the Platform implies knowledge and acceptance of the characteristics and limits of the Internet, particularly in respect of technical performance, response times when viewing, querying or transferring data, risks of interruption and, more generally, risks inherent to any connection and transmission over the Internet, the fact that certain data is not protected against possible misappropriations, and risks of contamination by possible viruses present on the network.
SMART GLOBAL does not guarantee that the Platform or its servers, where provision in SaaS mode is concerned, shall be, at all times, free of viruses, worms, Trojans or any other component which may cause a loss. It shall be the Client’s responsibility to take all appropriate measures to protect its information system against attack and, in particular, the equipment, data and/or applications stored in the IT equipment made available to the Users.
SMART GLOBAL cannot guarantee the accuracy, comprehensiveness, timeliness or any other quality of the Data present on the Platform. The Client is solely liable for the integrity, accuracy and quality of the Data which Users incorporate and disseminate on the Platform, and shall check that it is free of viruses and of all other components which may cause damage to the Platform.
ARTICLE 10 – LIMITATION OF LIABILITY
By express agreement, SMART GLOBAL is subject to a duty to exercise skill and care regarding provision of the Platform and the Services to the Client. The Client expressly acknowledges that it has received from SMART GLOBAL all necessary information enabling it to assess the suitability of the Platform for its requirements, and to take any useful precautions for its implementation.
Likewise, SMART GLOBAL is only liable for its content and its own user settings. It shall under no circumstances be held liable in case of modification of the operating flowcharts of the Platform, or in case of modification of contents of the Platform.
SMART GLOBAL may under no circumstances be held liable for any indirect damage of any kind whatsoever suffered by the Client, including, although this list is not restrictive, loss of profit, loss of turnover, loss of clientele, commercial disturbance of any kind, or reputational damage, in relation to or deriving from use of the Platform or Services.
The Client expressly acknowledges that the use of the Platform shall be made under its sole liability. No advice and no information, whether verbal or written, obtained by the Client and/or a User when the Platform is used, may create any guarantees which are not expressly stipulated by the Contract, nor make SMART GLOBAL liable in the event of damage, of any kind whatsoever, caused to the Client, a User or to third parties as a consequence of poor use of the Platform, in breach of the recommendations and instructions given by SMART GLOBAL, the provisions of the present article, and more generally due to failure to comply with the Contract.
In any event, if SMART GLOBAL is held liable as a consequence of an established fault by it, SMART GLOBAL’s combined total overall liability shall be expressly restricted, all causes combined, to the direct and foreseeable loss suffered by the Client, but may not exceed the value of the sums paid by the Client over the last twelve (12) months preceding the generating event which gave rise to the liability.
ARTICLE 11 – SUBCONTRACTING
SMART GLOBAL will be free to act through subcontractors for the provision of all or part of the services taken out by the Client.
However, when SMART GLOBAL or the Client considers it necessary, SMART GLOBAL shall put directly in touch the Client and the service providers. The Client shall remain free to mandate SMART GLOBAL for the settlement and the supervision of the service, in the name and on behalf of the Client.
It is expressly reminded that if an amiable or legal claim arises against SMART GLOBAL, due to a fault of the subcontractor while performing its obligations, SMART GLOBAL will always be able to call on the guarantee of this subcontractor.
ARTICLE 12 – INSURANCE
Each Party undertakes to purchase from a reputably solvent insurance company, and to maintain in force for the full term of the Contract, a civil liability insurance policy intended to provide cover against risks relating to performance of the Contract, and to cover any losses for which it may be held liable in connection with performance of the Contract. At request of the other Party each Party must be able to prove that it has purchased this insurance.
ARTICLE 13 – CONFIDENTIALITY
The following are considered as confidential: the Contract and all its terms, together with all information, data, documents of all kinds communicated by one Party to the other for the requirements of the Contract, by verbal, written or electronic means, and including in particular, but not exclusively, activity reports, assignment mandates, applications, processes, methods, formulae, concepts, industrial strategies, marketing plans, manufacturing trademarks, or expertise, whether or not this information is protectable under an intellectual and industrial property right (hereinafter the “Confidential Information “).
Each Party undertakes:
- to protect and to treat with the strictest confidentiality the Confidential Information which has been given to it or which will be given to it by the other Party, or which has been brought to its attention by the other Party;
- not to reveal to any third party, without the other Party’s prior, written agreement, the nature or content of the Confidential Information received from the said other Party, whether directly or indirectly;
- to use the said Confidential Information solely for the purposes of performance of the Services covered by the Contract or its performance,
- not to copy, reproduce or duplicate, in full or in part, the Confidential Information for requirements other than those of the Services or of performance of the Contract;
- to ensure the integrity and security of the Confidential Information which has been given to it by the other Party.
This undertaking of confidentiality cannot however apply to information:
- which has come into the public domain prior to the date of its disclosure or communication, or which comes into the public domain after being communicated and/or disclosed, without any breach by the Party which received it;
- which has been received from a third party in a legal manner, without any breach of the present agreement;
- which was legally in the possession of the Party which received it before it was disclosed;
If the receiving Party is obliged to reveal Confidential Information received from the disclosing Party due to a legislative or statutory provision, a judgment or a decision of an organisation exercising legal authority, the receiving Party shall inform the disclosing Party of this request as rapidly as possible, to enable the latter to take all measures to protect its Confidential Information optimally.
The Parties shall be bound by the present obligation until the data in question has become public, unless the Party in question has given an express, prior, written agreement to lift confidentiality.
Each Party shall be answerable for compliance by its personnel and any subcontractors with the confidentiality obligations described in the present article, and shall be fully liable in the event of a breach by its Personnel, or by any subcontractors, of these obligations.
The Confidential Information shall remain the property of the Party which discloses it to the other Party. Transfer of Confidential Information to the other Party may under no circumstances be interpreted as giving it any rights to or interest in this Confidential Information, except for the rights stipulated in the Contract.
The Parties undertake to return or to destroy, in accordance with the other Party’s instructions, documents or reproductions of them containing Confidential Information, immediately after the Party concerned makes such a request, and at the latest on termination or expiry of the Contract due to any cause whatsoever.
The present article shall survive termination or expiry of the Contract for any reason whatsoever.
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 amended, known as the “Computing and Freedom Law”.
SMART GLOBAL shall not be considered as the subcontractor regarding the hosted data.
In particular, the Parties undertake to establish and maintain appropriate security and confidentiality measures able to ensure adequate protection of the processed personal data, appropriate for the risks created by their processing posed for the rights and freedoms of the persons concerned. These measures relate in particular to (i) protecting personal data against destruction, loss, impairment or disclosure to unauthorised third parties and (ii) re-establishing the availability of the personal data and access to it within appropriate periods, in the event of a physical or technical incident. The Parties also undertake to establish a procedure intended regularly to test, analyse and assess the effectiveness of their technical and organisational measures to ensure the security of the processing.
For more information concerning the personal data protection rules published by SMART GLOBAL, the Client is requested to examine SMART GLOBAL’s Confidentiality Policy, available at the following address: https://www.smartglobalprivacy.com/politique-de-confidentialite.
ARTICLE 15 – FORCE MAJEURE
The Parties shall not be able to be held liable if failure to perform or late performance of any of the obligations, as described herein, is the consequence of a case of force majeure, within the meaning of article 1218 of the Civil Code. While it persists, the event of force majeure shall suspend performance of the obligations, for the Party claiming the benefit of it.
In all cases, the Party affected by the event of force majeure must strive to the best of its ability to prevent, eliminate or reduce the causes of the delay, and to resume performance of its obligations as soon as the invoked event has disappeared.
However, if a case of force majeure were to last for more than one (1) month it would entitle both Parties to terminate the Contract.
ARTICLE 16 – NON-COMPETITION
For the term of the Contract and for a period of one (1) year after expiry or termination of the Contract, due to any cause whatsoever, the Client undertakes not to develop, or to cause to be developed, and/or to commercially exploit, on its behalf or on behalf of any third party, any application in direct or indirect competition with the Platform or Services, in France or abroad.
If the Client does not comply with this undertaking, it shall, as of right and without prior notice, make itself liable to pay SMART GLOBAL a flat-rate penalty set hereby at 50.000 € (fifty thousand Euros), without prejudice for all other rights and remedies, and in particular the right for SMART GLOBAL to seek compensation for any losses which it has suffered and/or to have ordered, subject to a coercive fine, cessation of any wrongful actions.
The present penalty clause shall apply without any obligation for SMART GLOBAL to prove the scale or nature of its loss.
ARTICLE 17 – REFERENCE
SMART GLOBAL is allowed to use the name, the trademark and the logo of the Client, as a business reference, in particular in its website or by any other means.
The Client will also be able to use the name, the trademark and the logo of SMART GLOBAL, as a business reference, except in the event of termination of the Contract for any reason whatsoever.
ARTICLE 18 – MISCELLANEOUS STIPULATIONS
18.1. Independence of the Parties
The Parties declare and acknowledge that they are and shall remain, for the full term of the Contract, independent partners, and that the Contract cannot give either Party the capacity of agent or representative of its co-contractor. Neither Party has the power to commit the other, or to sign in the name and on behalf of the other, and each Party shall bear alone the risks of its own business activity. Neither Party shall be liable for the acts or omissions of the other Party, or for the acts or omissions of their employees in the course of delivery of the Services.
The Contract and each Estimate form a contractual whole, and express the entirety of the agreement concluded between the Parties. They replace all prior written or verbal proposals, communications or agreements relating to the purpose of the Contract. In the event of a contradiction between the provisions of the Contract and those of its Estimate the provisions of the Estimate shall take precedence.
18.3. Amendment of the Contract
SMART GLOBAL reserves the right to amend the stipulations of the Contract at any time without notice. In of the event of amendment, the Contract which shall be applicable to the Client shall be the one in force on the date of the Estimate.
If one or more provisions of the Contract is/are held to be invalid or declared such in application of a law or regulation, or following a decision of a court with jurisdiction which has become final, the other provisions of the Contract shall nonetheless retain their full force and scope. The Parties undertake to negotiate in good faith any amendments or the replacement of the invalid provision. To this end, the Parties shall come together to substitute for the invalidated provision a new clause in accordance with the spirit of this provision and of the Contract.
18.5. Tolerance; Non-waiver
It is formally agreed that any tolerance or waiver by one of the Parties concerning application of all or a proportion of the undertakings provided in the Contract, regardless of the frequency and duration thereof, may not be deemed equivalent to an amendment of the Contract, nor establish any right.
Except in the event that a stipulation hereof provides otherwise, it follows from an express agreement between the Parties that exchanges between them shall be able to be made by all means, in particular by email.
The Parties agree that paper printing of an email enables the content of the exchanges to be proven validly.
The Parties shall implement all security measures enabling the availability, integrity and confidentiality of email files sent over the Internet to be guaranteed. In parallel, they shall implement all effective measures, such as a firewall and antivirus software, which shall be regularly updated and correctly configured, 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 back up in the most appropriate and safest possible manner all messages sent relating to the purpose of the Contract.
18.7. Choice of service address
For performance hereof and matters arising from it the parties choose their respective addresses for service at their registered offices given at the start of the Contract.
18.8. Electronic signature
If applicable, each Party irrevocably accepts to use the procedure for electronic signature of the Contract on the platform used to this end by SMART GLOBAL.
ARTICLE 19 – APPLICABLE LAW AND JURISDICTION
The Contract is subject to French law, to the exclusion of all other legislations. If the present Contract is produced in several languages the French version shall alone be deemed authentic.
The Parties to the present contract undertake to strive to the best of their abilities to attempt to settle amicably any disputes which might arise from performance of the Contract. However, if no settlement can be found the Parties agree that their dispute shall be brought before the courts of Grasse with jurisdiction.