Preamble
Memority SAS (“Memority“) has developed a platform, referred to as the “Platform“, which facilitates user journeys and protects the services provided, by managing the access and digital identities of the employees, partners, customers and connected objects of its professional customers (individually referred to as the “Customer“). In this context, Memority may provide various services defined below as “Services” and/or “Additional Services”.
Purpose and scope of the General Terms and Conditions for the Provision of Services
In accordance with Article L. 441-1 of the French Commercial Code, the present General Terms and Conditions for the Provision of Services (the “GTCPS“) constitute the sole basis for the commercial relationship between the Parties. Their purpose is to define the conditions under which Memority provides the Services and/or Additional Services to Customers who request them.
The GTCPS apply, without restriction or reservation, to all Services and/or Additional Services provided by Memority to its Customers, regardless of any clauses that may appear in the Customer’s documents, and in particular its general terms and conditions of purchase.
In accordance with the regulations in force, these GTCPS are systematically communicated to any Customer who requests them, to enable him to place an Order with Memority.
Any order for Services implies acceptance by the Customer of the present GTCPS.
Memority is entitled to make any changes it deems necessary to the GTCPS.
In accordance with the regulations in force, Memority reserves the right to derogate from certain clauses of these GTCPS, depending on the negotiations carried out with the customer, by drawing up special conditions.
Definitions
· “High Risk Activities“: means an activity, such as the operation of a nuclear facility, aerial navigation or communication systems, air traffic control systems, life support medical devices, or weapons systems where the use or failure of the Services could result in death, physical injury or environmental damage;
· “General Terms and Conditions for the Provision of Services” or “GTCPS”: refers to this document;
· “Order“: means any document signed and accepted by the Parties, containing a description of the Services subscribed to by the Customer from Memority, the conditions of activation of the latter, as well as the associated price and duration;
· “Content“: refers to all data, information, files and elements provided by the Customer as part of the Services. This includes, in particular, Personal Data collected, processed or stored as part of the Services and/or use of the Platform;
· “SaaS Contract“: means the specific agreement that may be entered into between Memority and the Customer in order to govern the Customer’s access to and use of the Platform and/or the terms and conditions for the provision of Services, including Additional Services. Where applicable, the SaaS Contract specifies the particular terms and conditions, the mutual obligations of the Parties, and the financial, technical and legal conditions applicable to the provision of the Services. It supplements and, in the event of contradiction, takes precedence over the present GTCPS;
· “Configuration Data” refers to data resulting from parameterization and/or configuration operations carried out specifically by Memority and/or the Integrator for the Customer’s needs in connection with the use of the Platforms and Services;
· “Personal Data”: means any information relating to an identified or identifiable natural person (hereinafter referred to as the “data subject“); an “identifiable natural person” is one who can be identified, directly or indirectly, in particular by reference to an identifier, such as a name, an identification number, location data, an online identifier, or to one or more factors specific to his or her physical, physiological, genetic, mental, economic, cultural or social identity;
· “Distributor“: refers to the company responsible for the commercialization and/or renewal of the Services for the Customer;
· “IaaS” (Infrastructure-as-a-Service): means an Infrastructure-as-a-Service service provided by a Cloud service provider on which the Services are hosted or otherwise used in connection with Memority’s provision of the Services;
· “Confidential Information” means any information, Data, document, know-how, technique, plan, specification, prototype, algorithm, method or any other element, regardless of its form (oral, written, digital, etc.), which is disclosed by one of the Parties to the other Party;
· “Integrator“: refers to the third-party service company appointed by the Customer and approved by Memority, responsible for consulting activities, implementing and configuring the Services;
· “Memority” refers to MEMORITY, a simplified joint stock company (société par actions simplifiée) registered in the Nanterre Trade and Companies Register under number B 920 613 478, with its registered office at 11-13 Cours Valmy, PUTEAUX (92800);
· “Party” means Memority or the Customer. The term “Parties” refers collectively to Memority and the Customer;
· “Platform“: refers to the Platform published by Memority, the purpose of which is to provide Customers with the Services they have subscribed to, relating to digital identity management. The conditions of access to the Platform and the nature of the Services actually subscribed to by the Customer are defined in the Order;
· “Services”: refers to the Services provided by Memority, from the Platform and subscribed to by the Customer via his Order and include, in particular, the activation of the “My Identity”, “My Access” and “My-Keys” modules, any modification, adaptation, parameterization, interconnection, improvement, addition, extension, translation and any work derived from the latter and/or any other element of the Platform, at the Customer’s request;
· “Additional Services“: means any additional services, in particular consultancy, configuration, parameterization and/or change management services, subscribed to by the Customer from Memority, which are the subject of a separate service contract. For the purposes of these GTCPS, the term “Services” shall be deemed to include, but not be limited to, “Additional Services”;
· “Tickets“: refers to any request made by the Customer via the customer portal;
· “Users“: refers to the end users of the Customer’s information system.
Conditions for the provision of Services and the Platform
Subject to any specific provisions governing the conditions for the provision of Services and the Platform in the Order and/or the SaaS Contract, it is understood that:
· Access to the Platform: Memority provides the Customer with the information required to access the Platform and the Services. This access information will be provided in a confidential and secure manner. The Customer is responsible for the safekeeping and security of his login details and undertakes not to disclose them to unauthorized third parties. The Customer acknowledges and accepts that Memority may monitor the Customer’s and Users’ access to and use of the Services for the sole purpose of verifying the Customer’s compliance with the provisions of the SaaS Contract and/or the GTCPS and the applicable Order.
· Availability and Performance: Memority will endeavour to ensure that the Platform is available as far as possible and functions optimally. However, Memority cannot guarantee uninterrupted availability due to factors beyond its control, such as network failures or force majeure.
· Integration and Parameterization: The Customer acknowledges that the integration and parameterization of the Platform will be entrusted to the Integrator, according to the Customer’s specific needs. Memority will work with the Integrator to ensure smooth integration and optimal configuration of the Platform in the Customer’s environment. The Customer undertakes to provide all information and specifications required by the Integrator and Memority to facilitate this integration.
· Training and Assistance: Memority undertakes to provide the Customer with resources and relevant documentation to enable optimum use of the Platform. However, the Customer acknowledges that the Integrator will be primarily responsible for User training and assistance during the implementation of the Platform. The Customer agrees to cooperate with the Integrator and to follow the training and guidelines provided to ensure safe and effective use of the Platform.
· Technical support: Memority undertakes to provide technical support to the Customer in the event of technical problems or questions relating to the Platform, directly and/or via the Integrator. Technical support will be provided through a Ticket system, a telephone hotline and/or online support. The Customer undertakes to report any incident or problem diligently and to cooperate with Memority and/or the Integrator in order to resolve such problems as soon as possible.
· Evolutions and Updates: Memority reserves the right to make improvements, evolutions or updates to the Platform. These updates may include new functionalities, new modules, security patches or other improvements. In the event of any impact on the Customer, Memority will inform the Customer in advance of planned updates. Memority will endeavour to minimise any disruption to the use of the Platform during such updates.
· Planned interruptions: In exceptional circumstances, Memority reserves the right to carry out planned interruptions to maintain or update the Platform. Memority will endeavour to schedule these interruptions outside the customer’s peak hours and to inform the Customer in advance, except in cases of emergency.
· Suspension of Services: The Customer acknowledges and accepts that Memority may suspend the right to access or use all or part of the Services and/or Users, and/or remove any Content of the Customer: (i) where such access or use or Content of the Customer (x) presents a security risk or is otherwise likely to damage the Services or (y) infringes or otherwise violates the rights or other interests of a third party, contains illegal or prohibited content or activities, or is otherwise likely to give rise to liability on the part of Memority; or (ii) where Memority is required to do so under applicable legal provisions or pursuant to a judicial or administrative decision.
Memority’s general obligations
· Provision of the Platform and Services: Memority undertakes to provide the Platform and Services in accordance with the terms of the Order signed by the Customer and/or the SaaS Contract.
· Maintenance and Enhancements: Memority will be responsible for the regular maintenance of the Platform, including the application of updates, security patches and functional enhancements. The Customer will be informed in advance of planned updates that may affect the use of the Platform.
· Data security: Memority undertakes to implement all necessary security measures to protect the Customer’s Data stored on the Platform.
· Incident Management: In the event of an incident affecting the availability, security or integrity of the Platform, Memority undertakes to inform the Customer promptly of the situation, the measures taken to resolve the incident and the potential consequences.
· Collaboration with the Integrator: Memority undertakes to work closely with the Integrator to ensure the smooth integration and optimal configuration of the Platform in the Customer’s environment.
General obligations of the Customer
· Compliant Use of the Platform: The Customer undertakes to use the Platform exclusively for lawful purposes and in accordance with applicable laws and regulations. The Customer must not use the Platform in an abusive, fraudulent, defamatory manner, or for any other activity that could damage Memority’s reputation or violate the rights of others.
· Secured Access: The Customer is responsible for maintaining the confidentiality of the identification information (login and password) used to access the Platform. The Customer must not share this information with unauthorized third parties and must immediately inform Memority if there is any suspicion that his identification information has been compromised.
· Compliance with the conditions of use of the Platform: The Customer agrees to comply with the conditions of use of the Platform established by Memority.
· Payment: The Customer undertakes to comply with the payment terms agreed, where applicable, for the use of the Platform. Late payment may result in sanctions, including temporary suspension or termination of the Service.
· Suitability: The Customer is responsible for ensuring that the Platform and the Services subscribed meet its specific needs. Before subscribing to the Services, the Customer acknowledges that he has assessed the suitability of the Services and the Platform to his requirements.
· Compliance with terms of use: The Customer undertakes to use the Services and the Platform solely for internal purposes within his organization. Under no circumstances may the Customer transfer, resell, distribute, reproduce or make available all or part of the Services or the Platform to unauthorized third parties, whether for commercial or other purposes, without Memority’s prior written consent. The Customer acknowledges and accepts that it shall be solely responsible for ensuring that its use and the use made by its Users of the Services does not exceed the limits set out in the applicable Order.
· Responsibility of Users: The Customer is solely responsible for any use of the Services by Users, and shall be solely responsible for ensuring that Users do not circumvent or disclose usernames, passwords, or any other access or authentication data, and that they do not interfere with or disrupt other security control mechanisms of the Services. The Customer shall indemnify and hold Memority harmless against any claims by third parties arising from any breach by the Customer or its Users of its obligations under the SaaS Contract.
The Customer shall be solely responsible for the acts and omissions of its Users as if they were its own acts and omissions, and shall assume the sole obligation of guaranteeing that any person using the Services does so in accordance with the GTCPS and/or the special conditions agreed between the Parties, notably in the SaaS Contract. In particular, the Customer undertakes to ensure that neither it nor its Users shall: (i) access or use the Services to host or transmit any content, data or information that is unlawful, infringes the rights of third parties (such as intellectual property rights or the right to privacy), or otherwise contravenes applicable legal provisions; (ii) copy, translate, derive, disassemble, decompile, reverse engineer or otherwise attempt to discover the source code or underlying ideas or algorithms embedded in the computer applications or other systems used to provide the Services (including Infrastructure-as-a-Service – IaaS), except as expressly permitted by applicable law, nor remove any title or trademark, copyright or other proprietary notices contained in the systems, software or other materials used in connection with the provision of the Services; or (iii) access or use the Services for the purpose of creating competing products or services by copying their features and user interfaces or by allowing a direct competitor of Memority to access or use the Services.
· Cooperation and Feedback: The Customer shall cooperate with Memority and the Integrator by providing constructive feedback to the latter concerning the use of the Services. In particular, the Customer will notify Memority immediately upon becoming aware of any breach or threatened breach of this section, or any known or threatened security breach, including any attempt by a third party to gain unauthorized access to the systems used to provide the Services.
Price and terms of payment
The Customer shall pay the Price in accordance with the conditions defined in the associated Order. Unless otherwise stipulated in an Order, the Price is payable in the form of annual fees, to be paid in advance, within thirty (30) days of the invoice issued by Memority.
Memority reserves the right, at any time, to revise the rates applicable to the Services in order to ensure their fairness and economic viability. In the event of a price revision, Memority undertakes to inform the Customer of any change, including a transparent description of the new tariff applicable at least three (3) months before it takes effect. Such adjustments will be applied automatically.
Any price revision will be calculated according to the following formula:
Formula based on the Syntec index:
P1 = P0 x (S1 / S0)
Where:
P1 = Revised Memority price
P0 = Original Memority price (on the date of subscription to the Services)
S0 = original index (last published on the subscription date)
S1 = latest SYNTEC index published at revision date
The Customer expressly acknowledges that price adjustments in accordance with this clause shall under no circumstances constitute grounds for early termination of the Services.
Any delay in payment (partial or total) of an invoice will automatically give entitlement, without the need for a reminder, to:
· a penalty equal to the latest refinancing rate of the European Central Bank plus ten (10) percentage points at the invoice issue date. The penalty rate is applied to the total amount of the invoice, including VAT; it will not be modified until payment has been made in full, even if a partial payment has been made in the meantime. Penalties are due from the 1st day of delay of the invoice concerned until full payment. These penalties are not subject to VAT; and
· a lump sum of forty (40) euros to cover recovery costs. If Memority’s recovery costs exceed this amount, the Customer will be reimbursed on presentation of receipts.
If an invoice is contested, payment of the contested invoice remains due. If the dispute is accepted, a credit note will be sent to the Customer as soon as possible. Memority also reserves the right to terminate the Services in accordance with the provisions of the GTCPS.
Data protection and security
In the course of providing the Services, Memority may be led, for certain processing activities, to act as a data processor within the meaning of (EU) Regulation 2016/679 of 27 April 2016, which came into force on 25 May 2018 (hereinafter, the “GDPR“) by processing Personal Data on behalf of and in accordance with the Customer’s instructions. Memority undertakes to process the latter in accordance with the provisions specifically agreed between the Parties or, failing that, with the provisions of the Addendum on the subcontracting of personal data processing activities.
The Parties undertake to comply with all legal obligations to which they are subject under the law on Personal Data and, in particular, the GDPR. Memority undertakes to provide the Customer with a Platform and Services that are respectful of the principles of Personal Data protection, enabling the latter to ensure the implementation of its obligations arising from the GDPR (“Privacy by Design” principle).
More widely, Memority undertakes to comply with its obligations regarding the security and protection of Personal Data. To this end, it undertakes to apply appropriate and sufficient technical and organizational measures to ensure the security of the Platform and Services (“Security by default” principle).
Memority acknowledges and accepts that the security of the Platform and Services is an essential requirement for the Customer. Memority is responsible for maintaining the security of the Personal Data contained in the Platform, both through its own components and services and through upstream components and dependencies (e.g. libraries, operating environments or third-party APIs). Memority ensures that the security of the Platform and the data and Content contained therein keeps pace with technological developments by aligning itself with the standards and benchmarks associated with the Platform.
Content of the Customer
The Customer’s Content is the sole property of the Customer, and Memority and the Integrator have no ownership rights in it. The Customer remains responsible for the legality and relevance of its Content, and for any authorization required for its use.
As part of the performance of the Services, the Customer authorizes Memority to process its Content, and in particular Personal Data, in accordance with the written instructions sent by the Customer, under the conditions specifically agreed between the Parties and/or in the Addendum on the subcontracting of personal data processing activities.
The Customer grants Memority the non-exclusive right to host, retain, process, modify and transfer all or part of the Content for the sole purpose of the performance of the Services and/or Additional Services by Memority and their use by the Customer. At the end of the contractual relationship between the Parties, Memority undertakes to delete the Customer’s Content as soon as possible, in accordance with the provisions agreed between the Parties.
The Customer acknowledges and accepts that Memority may, for the duration of the Services and beyond, use the characteristics, trends and any statistical data resulting from the use of the Services (excluding the Customer’s Content) for the purposes of developing and/or improving the Services or any other products and services provided by Memority.
Intellectual property
The Customer acknowledges that, with the exception of the Configuration Data, which is the property of the Customer, all intellectual property rights relating to the Platform and its components, in particular developments, databases, applications, interfaces, graphic elements, trademarks and/or any related content, documentation and any support provided by Memority to the Customer, are the exclusive property of Memority and/or its licensors. The Customer undertakes not to copy, modify, distribute, license or attempt to decompile any element of the Platform.
The Customer acknowledges and accepts that in the event of a written request to upgrade the Services and if Memority decides to accept and implement such a request, all such upgrades, improvements and/or additions made in response to a Customer’s request for Additional Service shall be considered an integral part of the Platform and/or Services and will be the exclusive property of Memority and/or its licensor(s). The Customer acknowledges and accepts that under no circumstances shall the Customer claim any intellectual property rights whatsoever on the developments, unless a separate written agreement is concluded between the Parties.
Under the conditions defined by the SaaS Contract and/or the Order signed by the Customer, Memority hereby grants the Customer, for the duration of the applicable Order, a non-exclusive, revocable, non-transferable and limited right to use and authorize its Users to use the Services.
Under no circumstances shall such a license right (i) constitute a transfer of ownership of the intellectual property rights concerning the Platform and/or the Services to the Customer ; (ii) permit the Customer to reverse engineer, disassemble, decompile, reproduce, retransmit, recreate, copy, sell, distribute, publish, broadcast, circulate, commercially exploit or sublicense the Services and/or all or part of the Platform (including any modifications or derivative works) to any third party, or for any purpose whatsoever; (iii) permit the Customer to use the Services beyond strictly internal use, by a prescribed number of Users, as indicated in the Order.
If the Customer chooses to provide Memority with comments, suggestions or improvements regarding the Service (collectively, “Feedback“), the Customer grants Memority the right to use, reproduce and incorporate such Feedback into the Service without any obligation of compensation or attribution.
If the Customer becomes aware, it must immediately inform Memority of any alleged infringement of intellectual property rights related to the Services and/or the Platform. Memority reserves the right, at its sole discretion, to take steps to protect its intellectual property rights, including the suspension or termination of the Services in the event of substantial infringement.
Warranties and exclusions
Memority warrants that the Services provided to the Customer will for the most part comply with the specifications provided in the Order and the description provided of the Services subscribed to. This warranty shall not apply in the event of: (i) access to or use of the Services by the Customer or any User which does not comply with the GTCPS, the relevant Order (or any appendix thereto), or Memority’s instructions; (ii) any modification or change made by any Party other than Memority to the Services or to the systems, software or other content or equipment incorporated in such Services; or (iii) provision of the Services free of charge or on an experimental basis or in their pre-market or beta version.
The Customer shall notify Memority in writing without delay of any non-conformity of the Services, describing it in sufficient detail and at the latest within thirty (30) days of the Customer’s discovery of such non-conformity.
Unless otherwise expressly stipulated in the Service Level Agreements (SLAs) agreed with the Customer, Memority will make all economically reasonable efforts to correct such non-conformity. If Memority is unable to correct such non-conformity, after having made all economically reasonable efforts to do so for a reasonable period of time, either Party may terminate the relevant Order corresponding to the non-compliant Service(s) by written notice to the other Party, in which case the Customer shall receive, as sole and exclusive compensation, reimbursement by Memority of all sums already paid by the Customer in payment of the Price, calculated on a pro rata basis for the remaining duration of service after the effective date of termination. All other mechanisms provided for in Article 1223 of the French Civil Code are hereby excluded.
Except as expressly provided in this section, Memority and its licensors make no representations or warranties of any kind, express or implied, statutory or otherwise, with respect to the Services or their component(s). These exclusions apply in the conditions set out by the applicable laws.
High Risk Activities. Memority expressly excludes, on its own behalf and on behalf of its licensors and the Cloud service provider, any express or implied warranty that the Services are suitable for the conduct of High Risk Activities.
Third-party claims
Memority shall have no obligation and shall under no circumstances be held liable in the event of a dispute arising from:
- the Content of the Customer;
- the use of the Services by the Customer or its Users after Memority has requested the Customer to cease or stop such use and the Customer has had a reasonable opportunity to cease or stop such use;
- any modification or unauthorized use of the Services where the violation or misappropriation would not have occurred in the absence of such modification or unauthorized use;
- any use of the Services or any other act committed by the Customer or a User which constitutes a breach these GTCPS and/or Memority’s instructions, where the breach or misappropriation would not have occurred in the absence of such breach;
- any dispute arising from a wilful infringement where an unfavourable judgment has been rendered against any person other than Memority or the Cloud service provider;
- any combination of the Services with any other product, service, software, content, data or method not provided by Memority; or
- any free or trial license to the Services.
If any part of the Services is infringing or is considered by Memority to be infringing or likely to be found to be infringing, Memority may choose (at its option and expense) to: (a) purchase a license to use the (allegedly) infringing element; (b) replace the (allegedly) infringing element with a non-infringing equivalent; or (c) modify the (allegedly) infringing element to bring it into compliance while providing substantially the same level of functionality. If Memority considers that the measures described above are not economically reasonable, Memority will immediately terminate the Customer’s access to the Services.
The Customer will i) defend (at its own expense) Memority and its licensors in any action brought against Memority by any third party arising out of or relating to (a) any use of the Services by the Customer or its Users in violation of applicable laws or regulations; or (b) any allegation that the Customer’s Content violates, infringes, or misappropriates the rights of any third party; (c) the use by the Customer or its Users of the Services or any other act committed in violation of these GTCPS, other contractual provisions binding Memority and the Customer in connection with the provision of the Services or the Order; or (d) the conduct, by the Customer or a User, of High Risk Activities, and ii) will pay the amount of damages that Memority has been ordered to pay by final decision or the amount agreed upon in a settlement of the dispute approved by Customer. The foregoing provisions shall apply both when the damage has been caused directly by the conduct of the Customer and/or a User and when the damage has been caused by the conduct of a third party using the Customer’s or a User’s access credentials if the Customer has made his credentials available through negligence or has chosen them in such a way that they could easily be hacked.
This section constitutes the Customer’s sole and exclusive remedy and Memority’s (and its affiliates’) entire obligation to the Customer in connection with any dispute relating to infringement or misappropriation by the Services of the intellectual property rights of third parties.
Limitation of liability
With the exception of (i) damages resulting from death or personal injury caused by gross negligence, intentional misconduct, fraud or deceit attributable to either Party; and (ii) Memority’s right to recover all sums due in payment of the Price agreed hereunder, each of the Parties (or Memority’s licensors) shall in no event, and whatever the nature of the claim, be liable to the other Party or to any other person or entity under these GTCPS for an amount of damages per calendar year exceeding the total Price paid (annual fee, plus the amount due for Specific Services where applicable) in respect of the twelve (12) month period preceding the date of the incident giving rise to the liability.
To the fullest extent permitted by law, neither Party shall be liable to the other Party under any legal theory or doctrine of liability, even if a Party has been advised of the possibility of claiming such damages for indirect, incidental, special, consequential damages, loss of profits or savings, revenues, or goodwill; damages resulting from business interruption, unauthorized access, alteration or loss of Customer Content.
The Parties acknowledge that the limitations of liability set forth in this section reflect the liability of the Parties with respect to their respective obligations and constitute material elements of these GTCPS, and that the Parties would not have entered into a contractual relationship in their absence.
No claim, regardless of its form, arising from the present GTCPS may be brought against the Customer more than two (2) years after the Customer knew or should have known of the event giving rise to such claim.
Duration and termination
These GTCPS shall take effect as of the effective date defined in the corresponding Order or SaaS Contract. Unless otherwise stipulated in the Order or the SaaS Contract, the contract binding the Parties is concluded for an Initial Period of three (3) years. Beyond the Initial Period, and unless terminated in writing by one of the Parties with three (3) months’ written notice prior to the end of the Initial Period, the contract will be tacitly renewed for successive periods of one (1) year.
Either Party may terminate the Services and/or any Order upon written notice if the other Party ceases its activities or becomes subject to insolvency proceedings or any other equivalent proceedings in another jurisdiction, and such proceedings are not terminated within ninety (90) days within the limits set by law, or if it is generally no longer able to meet its obligations under the GTCPS, the SaaS Contract and/or any Order.
In addition to any other remedies available to a Party at law, in equity, or under the GTCPS, a Party may terminate the Services and/or any Order upon prior written notice to the other Party within thirty (30) days in the event of a material breach by the other Party of the provisions of the GTCPS and/or any Order without remedying such breach (if any) within thirty (30) days, including in the event of any act or omission by the Customer or any User which has entitled Memority to suspend the provision of the Services. A material breach is defined as a breach which prevents the continued performance of the GTCPS and/or any Order or which seriously compromises the performance of the Services.
Notwithstanding the provisions of article 1229 of the French Civil Code, and by express agreement between the Parties, the effects of such termination are only for the future from the date of notification and shall not be retroactive. In the event of termination, the Customer shall pay all amounts due for the Services provided up to the effective date of termination. The Parties acknowledge that any Services which have been paid for by the Customer or which the Customer has undertaken to pay for are recognized as having been useful to the Customer.
In express derogation of the provisions of articles 1224 and 1226 of the French Civil Code, the Parties also agree that, with the exception of the present stipulations, the SaaS Contract and/or any Order may not be terminated or cancelled by simple notification sent by the creditor to the debtor.
On the effective date of expiration or termination of an Order, the Customer will end access to and use of the Services by the Customer and its Users.
Confidentiality
Each Party undertakes to use the other Party’s Confidential Information only to the extent strictly necessary and for the sole purpose of performing the Services and Orders. Each of the Parties undertakes to take reasonable measures to protect the Confidential Information of the other Party, provided that such measures are at least as protective as those implemented by the Parties to protect their own Confidential Information of the same nature, and that they are in any event at least equivalent to the degree of diligence that may reasonably be expected.
Each of the Parties may disclose the Confidential Information of the other Party to its employees, co-contractors, licensors or agents who: (a) need to know such information in order to perform the Orders or the Services, and (b) are bound by a duty to protect the Confidential Information on terms at least as protective as those set forth in these GTCPS. In addition, Memority may disclose the Customer’s identity to its subsidiaries, employees, suppliers, service providers and licensors for the sole purpose of performing the Services and Orders.
This section shall not apply to information in respect of which either Party can demonstrate that: (a) it was already published at the time of disclosure or was published shortly thereafter, or that it has entered the public domain in the absence of any fault attributable to the receiving Party; (b) it was already in the hands of the receiving Party at the time of disclosure and was not subject to a prior obligation of confidentiality; (c) they were received after having been disclosed by a third party who had the right to disclose such information (without any corresponding obligation of confidentiality); or (d) they were independently developed by the receiving Party without recourse to the disclosing Party’s Confidential Information.
The receiving Party shall not be deemed to have breached its obligations under this section if it discloses Confidential Information of the disclosing Party to the extent strictly required by law to comply with a legal obligation imposed by a governmental or regulatory authority, provided that upon receipt of any such request, and to the extent permitted by law, it shall promptly: (i) notify the disclosing Party prior to any such disclosure so as to allow the disclosing Party to object to such disclosure or to take any steps it considers appropriate to protect the Confidential Information and; (ii) take all necessary steps to restrict any disclosure to what is strictly necessary to comply with the legal obligation imposed by a competent administrative or regulatory authority (including by withholding commercially sensitive information if permitted by law).
Any reproduction of the other Party’s Confidential Information shall remain the property of the disclosing Party, and the disclosing Party may at any time, including upon termination or expiration of the Services or Orders, request the receiving Party to return such Confidential Information, destroy or delete (and confirm such destruction or deletion) in accordance with instructions given to it (and in such a manner that it cannot be recovered) all Confidential Information of the disclosing Party which is in the hands or under the control of the receiving Party. Notwithstanding the foregoing, each Party may archive all copies of Confidential Information that it is required to retain to comply with legal and other accounting requirements to which it is subject.
The Customer further undertakes not to disclose the terms and conditions set out in these GTCPS and/or in the Order(s) to any third party unless otherwise agreed between the Parties.
Force majeure
Except for the Customer’s obligation to pay Memority the sums agreed under any Order, neither Party shall be liable for any delay or failure to perform any obligation under these GTCPS and/or the SaaS Contract where such delay or failure has been caused by any circumstance or event beyond its reasonable control, including, but not limited to, electrical or power failures, failures of telecommunications equipment or services, earthquakes, storms or other natural disasters, blockades, embargoes, riots, government intervention through measures or decisions, acts of terrorism or war, labor disputes with its personnel or those of its subsidiaries, industrial disturbances.
Assignment and Transfer
The Customer acknowledges and accepts that it may not assign the SaaS Contract or any Order or grant a sub-license and/or delegate any of its rights or obligations, including by operation of law, without Memority’s prior written consent, and any attempt to do so in breach of this clause shall be null and void. These GTCPS shall be binding upon the Parties, their respective successors, and authorized assigns, and shall inure to their benefit.
End of Services and reversibility
At the end of the Services, the following provisions shall apply:
Memority undertakes to transmit to the Customer, as soon as possible, the Configuration Data and its Content, in the format agreed between the Parties.
In particular, Memority undertakes to cooperate and provide all reasonable assistance to the Customer and/or its agents to facilitate the orderly liquidation of the use of the Services and/or to ensure the transition to the services of another supplier. During this transition period, the Customer undertakes to pay the fees due for the applications connected to the Platform for the duration of the transition. Regarding the nature of the Services, the Parties undertake to discuss and agree together on the technical and commercial terms (including the amount of fees due) of reversibility, in a separate contract in order to ensure a planned and orderly transition.
If termination results from the Customer’s failure to comply with the provisions of these GTCPS and/or the SaaS Contract, Memority will invoice the Customer in advance for all support services provided as part of this transition, and the Customer will pay in advance the Price so invoiced for these services.
At the end of the Contract and upon full completion of the reversibility phase, if applicable, Memority will destroy, order to be destroyed, or otherwise delete the Customer Content in its possession or held by its Cloud service provider (including data backups).
The Customer’s Content will be stored for a maximum of 90 days following the expiration or termination of the Customer’s subscription, and Memority will delete the latter, including Personal Data, unless applicable legal provisions or contractual provisions agreed between the Parties authorize or oblige Memority to retain all or part of such Content.
Subcontracting
The Customer acknowledges and accepts that Memority is free to use subcontractors of its choice to perform all or part of the Services. Subcontractors may be designated in the Order or any other third-party document. Where applicable, Memority will inform the Customer of the subcontractors selected and will be responsible to the Customer for the proper performance of their services.
The Customer expressly authorizes Memority to change subcontractor/supplier at any time. Memority must inform the Customer of any such change at least one (1) month before the change takes place. Memority undertakes to select a supplier offering services that are at least equivalent in terms of performance, so that no change is perceptible to the Customer. This change does not give the Customer any specific right to termination, unless otherwise agreed between the Parties.
Compliance with legal provisions
Memority will comply with all legal provisions applicable to it and to its activity in providing the Services to the Customer, and the Customer will comply with all legal provisions applicable to it and to its activity in providing its Content and using the Services. Each of the Parties shall comply, in particular, with the applicable legal provisions concerning the protection of Personal Data which are applicable to it according to the quality in which it is acting in the context of the processing of the Customer’s Personal Data in connection with the performance of the present GTCPS.
Partial non-validation
If one or more provisions of these GTCPS are held to be invalid or declared as such in application of a law, regulation or following a final decision by a competent jurisdiction, the other provisions retain all their force and scope. The Parties then agree to replace the clause declared null and void with a clause that most closely respects the objective and economic effect pursued by the clause initially agreed. The same principles will apply in the event of incomplete provisions.
Communication
The Parties acknowledge and accept that Memority may, subject to compliance with the confidentiality obligations set forth in these GTCPS, refer to the business relationship established with the Customer for communication and marketing purposes. Such reference may include, but is not limited to, the use of the Customer’s name, logo and trade name in materials such as Memority’s website, promotional materials, case studies and/or presentations. Memority undertakes to exercise this authorization responsibly and to comply with any general communication guidelines provided by the Customer. The Customer acknowledges that this mutual communication may contribute to the commercial development of both Parties by enhancing their respective visibility. The Parties agree that communication activities shall in no way disclose confidential or sensitive information of the Customer. Memority will take all reasonable measures to avoid any inappropriate or harmful use of the Customer’s information in its communication activities. This communication clause shall remain in force for the duration of the business relationship between the Parties and shall survive its expiry or termination, unless expressly stated otherwise in a written agreement between the Parties.
Independence of the Parties
Neither of the Parties may rely on the provisions of these GTCPS to claim the status of agent, representative or employee of the other Party, in order to establish a relationship of subordination between the two Parties. Each Party retains its own autonomy, responsibilities and customers. Memority will perform the Services in complete independence, whether on its own premises or on the Customer’s premises. Memority’s personnel remain under Memority’s authority and comply with Memority’s instructions. All personnel of each Party involved in the Services remain under the responsibility of that Party. Neither Party may give orders to the other Party’s personnel.
Non-Waiver
No delay, negligence or abstention on the part of either Party in the exercise of its rights to obtain performance by the other Party of these GTCPS shall be deemed to constitute a waiver of the exercise of such rights, shall in no way prejudice the rights of such Party under these GTCPS, and the exercise, even partial, of any of such rights shall in no way preclude any subsequent exercise of such rights or of any other right.
Applicable law and competent jurisdiction
These GTCPS are governed by French law.
In the event of any difficulty in the performance of the Order and/or the GTCPS, and prior to the enforcement of the conditions for their termination, each of the Parties undertakes to first seek an amicable solution to the dispute between them. To this end, the Parties shall appoint two persons duly authorized for this purpose. These persons will meet on the initiative of the most diligent Party within thirty (30) days of receipt of the registered letter with acknowledgement of receipt requesting the holding of a conciliation meeting. The agenda for this meeting is set by the Party initiating the conciliation. The decisions taken by the Parties during this meeting will be the subject of an amendment dated and signed by the Parties.
IN THE EVENT OF ANY DISPUTE RELATING TO THE FORMATION, INTERPRETATION, PERFORMANCE OR TERMINATION OF THE ORDER AND/OR THE GTCPS, AND IN THE EVENT OF FAILURE TO REACH AN AMICABLE SETTLEMENT BETWEEN THE PARTIES WITHIN A MAXIMUM PERIOD OF THIRTY (30) DAYS FROM NOTIFICATION OF THE GRIEVANCES BY THE MOST DILIGENT PARTY, EXCLUSIVE JURISDICTION IS ASSIGNED TO THE COMPETENT COURTS OF PARIS, NOTWITHSTANDING PLURALITY OF DEFENDANTS OR THE INTRODUCTION OF THIRD PARTIES, EVEN FOR EMERGENCY PROCEEDINGS OR PROTECTIVE PROCEEDINGS BY WAY OF SUMMARY PROCEEDING (‘REFERE’) OR PETITION (‘REQUÊTE’).