ARTICLE 1 – DEFINITIONS
In the CGU, terms and expressions starting with a capital letter have the meaning indicated hereinafter, whether used in the singular or in the plural.
1.1. Client: refers to the client company of SMART GLOBAL, which signed up for a free trial of the Platform on the terms stipulated on the Site, or which has purchased a subscription to the Platform pursuant to the General Terms of provision of a software platform, available at the following link https://www.smartglobal.com/en/cgs/ , and of which the User is an employee or service-provider of the Client, who is authorised to access the Platform and to use it;
1.2. User Account: refers to the personal space created by the User on the Platform, as described in article 3 hereinafter;
1.3. Data: refers to all data collected, generated or processed through the Platform by the User.
1.4. Personal Data: refers to the Data which, within the meaning of the Regulations applicable to protection of personal data, enables a natural person to be designated or identified, whether directly or indirectly.
1.5. Platform: refers to the platform for managing and guiding the Client’s compliance with the Regulations applicable to protection of personal data, developed and published by SMART GLOBAL and made available to the User through the Internet, on the Site;
1.6. Site: refers to the Website published by SMART GLOBAL and accessible at the address https://www.smartglobal.com/en, or any other URL which SMART GLOBAL may substitute for it, where the Platform is made available;
1.7. User: refers to any major natural person with legal capacity, having access to the Platform and using it, regardless of their location, and the methods used to log in, who uses the services supplied by the Platform on the subscription terms purchased by the Client, who is an employee or service-provider of the Client, and whom the latter has authorised to use all or a proportion of the services provided by the Platform.
ARTICLE 2 – ACCEPTANCE OF THE CGU
The CGU constitute a contract between the User and SMART GLOBAL. Access to the Platform and use of it are subject to express acceptance, without reserve, by the User of the CGU. Failure to accept the CGU shall imply that the User is unable to access the Platform and to use it. The CGU must be accepted when the User first logs on to the Platform, when creating their Account on the terms of article 3.1.
SMART GLOBAL reserves the right to change and/or update the present CGU at any time. Access to and use of the Platform shall be subject to the CGU in force at the time of this access and of this use; the User is requested to examine the CGU regularly to this end.
If one of the clauses of the CGU is invalid as a consequence of a change of legislation or regulations, or declared such by a final legal decision, this can under no circumstances affect the validity and compliance of the other clauses of the CGU.
ARTICLE 3 – ACCESS TO THE PLATFORM
3.1. Creation of an account
Access to the Platform requires the creation of an Account. To do so the User must have a valid email address.
Access to the Platform is reserved exclusively for persons included in the list of authorised Users provided to SMART GLOBAL by the Client. SMART GLOBAL shall give each User, by email to the address given in the list of Users sent by the Client, a secure URL to enable creation of the Account allowing access to the Platform to be initialised. If applicable, if the Client has named an administrator User of the Platform within its entity, SMART GLOBAL shall send the secure URL to this administrator User, who shall then be responsible for creating and managing the Users’ Accounts.
Each authorised User can access the Platform (i) by logging on to the Site, (ii) by clicking on the “Log in” button, by authenticating themselves and by accepting the present CGU.
3.2. Responsibility for login settings
The User accepts to supply information concerning them which is accurate, up-to-date and complete, and to ensure that it remains so. SMART GLOBAL cannot under any circumstances be held liable due to a delay in accessing, or inability to access, the Platform due to erroneous or incomplete information when entering information relating to the User when creating their Account. The User can also modify their personal information at any time.
The User’s identification settings (identifier and password if required) are personal and confidential. The User must keep these login identifiers securely, and undertakes not to disclose them to third parties for any reason, in any way, and in any form whatsoever. The User also undertakes to check that at the end of each session of use of the Platform that they have logged out correctly.
In the event of loss, omission or theft of their authentication information managed by SMART GLOBAL (excluding login mode by SSO), the User must change their password as rapidly as possible by clicking the button “Forgotten password” under the login identifiers entry form. The User is then asked to create a new password. If login mode by SSO is used, in the event of loss, omission or theft of their authentication information the User must take responsibility for making the required changes.
SMART GLOBAL can under no circumstances be held liable for loss, theft or omission of the User’s authentication information or of fraudulent use of it. The User is solely liable for access to and use of the Platform with their authentication information.
SMART GLOBAL undertakes to implement all means enabling the User to have reliable and fast access to the Platform. However, the User declares that it has accepted the costs and the limits specific to all connections to the Internet network. The User shall take responsibility for accessing the Platform under satisfactory technical conditions, in terms of hardware, software and telecommunications (broadband Internet connection and an up-to-date Chrome, Firefox or Edge browser), in particular in order that all backup measures, and protection against possible intrusions, are implemented. All costs relating to access to the Platform and to use of it, whether hardware or software costs, or Internet access costs, are payable exclusively by the User. The User is solely liable for the satisfactory operation of, and provision of appropriate security for, its IT equipment and its Internet access. SMART GLOBAL may not be held liable in the event of damage to any equipment in connection with use of the Platform.
3.4. Availability of the Platform
The conditions of availability of the Platform are stipulated in SMART GLOBAL’s service level agreement, available at the following link: https://www.smartglobal.com/en/sla/.
SMART GLOBAL is bound only by a duty to exercise skill and care relating to accessibility, operation and availability of the Platform or of its content. SMART GLOBAL reserves the possibility of interrupting, suspending or limiting access to all or part of the Platform, in particular due to constraints of a legal or technical nature.
The User expressly acknowledges that the above-mentioned suspensions, interruptions or limitations may occur at any time without notice, and that they shall not give rise to any obligation or any compensation payable to it.
ARTICLE 4 – CORRECT USE OF THE PLATFORM
Bearing in mind the nature and purpose of the Platform, the User must act as a professional for the requirements of their professional activity. The User undertakes to use the Platform only for these exclusive requirements.
The User undertakes to use the Platform in accordance with the CGU, and pursuant to the applicable laws and regulations.
It is strictly prohibited to use the Platform for the following purposes:
– to cause interference with the Platform, or to access it using a method other than the one stipulated in the CGU and the instructions given to them to undertake illegal, discriminatory or fraudulent actions, or actions impairing the rights or security of third parties,
– public order offence or breach of the laws and regulations in force,
– assistance or incitement, in any form and in any manner whatsoever, with or to one or more of the above-described acts,
– and, in general, all practices involving misuse of the Platform, for purposes other than those for which it has been designed.
SMART GLOBAL may suspend or terminate the User’s access to the Platform in the event of non-compliance with the present article, without prejudice for any damages which SMART GLOBAL may seek.
ARTICLE 5 – GUARANTEES
SMART GLOBAL guarantees the confidentiality and security of the Data. However, SMART GLOBAL cannot guarantee the accuracy, comprehensiveness, currentness or any other quality of the Data incorporated and disseminated by the User on the Platform.
The User is solely liable for the integrity, accuracy and quality of the Data which they incorporate and disseminate on the Platform. The User must also check that the Data which they incorporate and disseminate on the Platform is free of viruses and all other components which may damage the Platform.
SMART GLOBAL does not give any express or implicit guarantee, including, although this list is not restrictive, regarding non-breach of the rights of a third party, 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 User’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.
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 shall be, at all times, free of viruses, worms, Trojans or any other component which may cause a loss. It is the User’s responsibility to take all appropriate measures to protect their own hardware, data and/or applications stored on their computer equipment against any attack.
ARTICLE 6 – LIABILITY
SMART GLOBAL cannot under any circumstances be held liable for access and use of the Platform by the User, on any basis whatsoever. Access to the Platform and use of it are effected under the User’s ‘s sole liability.
The User shall decide alone how to use satisfactorily the Platform and the Data which it incorporates in it and disseminates, with discernment and critical thinking.
No advice and no information, whether verbal or written, obtained by the User when the Platform is used, may create any guarantees which are not expressly stipulated by the CGU, nor make SMART GLOBAL liable in the event of damage, of any kind whatsoever, caused to the User or to third parties as a consequence of poor use by the User of the Platform, in breach of the provisions of the present article, and more generally due to failure to comply with the CGU.
The User is liable for any damage occurring to its IT system, to the Platform and/or its content, and also for any loss of Data which might result from their use of the Platform. This being so, the User is responsible for establishing antivirus programs and other measures to secure their IT system.
As far as permitted by the applicable law, SMART GLOBAL expressly declines any liability for any loss, direct or indirect, resulting from or relating to access to the Platform, use of it, or malfunction or unavailability of it, whatever the nature and the duration thereof.
SMART GLOBAL is liable solely for any direct damage which may be caused to the User due to poor performance of its obligations and/or failure to perform its obligations under the CGU.
The User acknowledges that SMART GLOBAL shall remain free to correct and/or to modify the Platform at any time without notice, and that this correction and/or this modification shall not entitle it to any right of recourse.
SMART GLOBAL may not be held liable, in general, in all cases in which failure to perform or poor performance of the CGU results from a case of force majeure or accidental case independent of its will.
ARTICLE 7 – INTELLECTUAL PROPERTY
The Platform, including its source codes and its architecture, the Site, and all the content present on the Platform, published by SMART GLOBAL, and the registered trademarks “SMART GLOBAL PRIVACY” and “SMART GLOBAL GOVERNANCE” (hereinafter the “Protected Elements“) are protected by intellectual property rights (such as, in particular, all copyrights, rights over the patents, trademarks, rights of producers of databases, and all other intellectual property rights, existing or future, French or international), and are the property of SMART GLOBAL or third parties having authorised SMART GLOBAL to exploit them.
Use of the Platform does not under any circumstances give the User a right of ownership and/or a right of intellectual property over the Protected Elements, except for a personal right of access, which is non-exclusive, non-assignable and non-transferable, and which is restricted exclusively to use of the Platform in accordance with its purpose and in compliance with the CGU, for the term of use of the Platform.
It is strictly prohibited to represent, reproduce and/or exploit the Protected Elements, totally or partially, in any form and by any means whatsoever, without SMART GLOBAL’s prior, written agreement. The User undertakes not to copy, modify, assemble, decompile, modify, alter, lease, lend, disseminate, distribute or transfer all or part of the Platform, to create works derived from the Platform, or to authorise a third party to commit such acts, without SMART GLOBAL’s prior, written agreement.
Failure to comply with the provisions of the present article would constitute a breach of the intellectual property rights of SMART GLOBAL and/or of licensor third parties, and may result in civil and criminal prosecution.
ARTICLE 8 – PROTECTION OF PERSONAL DATA
SMART GLOBAL is committed to protecting the personal data of Users of its Platform, and undertakes to protect it pursuant to the applicable regulations, and in particular Regulation (EU) no. 2016/679 of 27 April 2016, known as the “General Data Protection Regulation” or “GDPR”, and law no. 78-17 of 6 January 1978 , amended, known as the “Computing and Freedom Law”, amended. For more information concerning the personal data protection rules published by SMART GLOBAL, the User is requested to examine SMART GLOBAL’s Confidentiality Policy, available at the following address: https://www.smartglobal.com/en/privacy-policy/.
ARTICLE 9 – TERM; TERMINATION
The CGU come into force from their acceptance by the User for the full term of use of the Platform by the User, pursuant to the contract between SMART GLOBAL and the Client.
If the Platform is used by a User in a manner not in accordance with the CGU, in the event of a breach by the User of the CGU, or more generally in the event of a breach of the applicable laws and regulations, SMART GLOBAL may suspend or terminate, as of right, without prior formal notice, notice period or compensation, all or part of the User’s access to the Platform. SMART GLOBAL shall be able to apply this termination without prejudice for all other rights, actions and remedies which SMART GLOBAL may have for the purpose of compensating any loss which it may have suffered as a consequence of these breaches.
Similarly, the Account shall be terminated automatically if the contract concluded between SMART GLOBAL and the Client is terminated.
On cessation of the Account, for any reason whatsoever, SMART GLOBAL shall return to any User making such a request the Data which they have incorporated in the Platform, in accordance with the contractual terms agreed with the Client .
ARTICLE 10 – MISCELLANEOUS PROVISIONS
The CGU constitute the entirety of the parties’ agreement relating to its purpose, and cancel and replace all agreements, prior or current, verbal or written, between the parties, relating to this purpose.
The CGU are concluded in consideration of the person. The rights and obligations resulting therefrom may under no circumstances be assigned or transferred by the User, on any basis whatsoever, without SMART GLOBAL’s prior, written approval.
Should either party fail to claim the benefit, at a given time, of any of the provisions of the CGU, this cannot be interpreted in future as a waiver of the rights which they hold hereunder.
ARTICLE 11 – APPLICABLE LAW AND SETTLEMENT OF DISPUTES
The CGU are subject to French law. The parties undertake to strive to the best of their abilities to attempt to settle amicably any disputes which might arise from performance of the CGU. However, if no settlement can be found the parties agree that their dispute shall be brought before the courts of Grasse with jurisdiction.