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Memority

General Conditions for the Provision of Services (GCPS)

Date of update: October 2024

 

Preamble

Memority SAS (“Memority”) has developed a platform, referred to as the “Platform,” which streamlines user experiences and protects the services provided by managing the digital access and identities of 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 of Service

These General Terms of Service (the "GTS") constitute, in accordance with Article L. 441-1 of the French Commercial Code, 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 GTS 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 on the Customer's documents, and in particular its general terms of purchase.

In accordance with current regulations, these GTS are systematically communicated to any Customer who requests them, to enable them to place an Order with Memority.

Any order for Services implies the Customer's acceptance of these GTS.

Memority is entitled to make any modifications to the GTS that it deems useful.

In accordance with current regulations, Memority reserves the right to deviate from certain clauses of these GTS, depending on negotiations conducted with the Customer, by establishing special conditions.

 

Definitions

"High-Risk Activities" means an activity, such as the operation of a nuclear facility, aircraft navigation or communication systems, air traffic control systems, medical life-support devices, or weapons systems, where the use or failure of the Services could result in death, physical injury, or environmental damage;

"General Terms of Service": refers to this document;

"Order": refers to any document signed and accepted by the Parties, containing the description of the Services subscribed to by the Customer from Memority, the conditions for activating them, as well as the associated price and duration;

"Content": refers to all data, information, files, and elements provided by the Customer within the framework of the Services. This includes, in particular, Personal Data collected, processed, or stored within the framework of the Services and/or the use of the Platform;

"SaaS Agreement": refers to the specific agreement that may be concluded between Memority and the Customer, notably to govern the Customer's access to and use of the Platform and/or the methods of providing the Services, including Additional Services. Where applicable, the SaaS Agreement specifies the particular terms, the reciprocal obligations of the Parties, as well as the financial, technical, and legal conditions applicable to the provision of Services. It completes and, in the event of a contradiction, prevails over these GTS;

"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 within the framework of using the Platforms and Services;

"Personal Data": refers to any information relating to an identified or identifiable natural person (hereinafter referred to as "data subject"); an "identifiable natural person" is deemed to be 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 their physical, physiological, genetic, mental, economic, cultural, or social identity;

"Distributor": refers to the company responsible for marketing and/or renewing the Services for the Customer;

"IaaS" (Infrastructure-as-a-Service) means an Infrastructure-as-a-Service provided by a Cloud service provider on which the Services are hosted or which is otherwise used in the context of the provision of Services by Memority;

"Confidential Information" refers to 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 designated by the Customer and approved by Memority, responsible for consulting, implementation, and parameterization of the Services;

"Memority": refers to MEMORITY, a simplified joint-stock company registered with the Nanterre Trade and Companies Register under number B 920 613 478, with its registered office at 11-13 Cours Valmy in PUTEAUX (92800);

"Party": refers to Memority or the Customer. The term "Parties" collectively refers to Memority and the Customer;

"Platform": refers to the Platform published by Memority for the purpose of providing Customers with the subscribed Services 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 under their Order, and includes, in particular, the activation of the "My Identity", "My Access" and "My-Keys" modules, any modification, adaptation, parameterization, interconnection, improvement, addition, extension, translation, and all derivative works of these and/or any other element of the Platform, at the Customer's request;

"Additional Services": refers to any additional service, notably consulting, configuration, parameterization, and/or change management support services, subscribed to by the Customer from Memority, subject to a separate service contract. For the purposes of these GTS, 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 providing Services and making the Platform available

Subject to specific provisions governing the conditions for providing Services and making the Platform available in the Order and/or the SaaS Agreement, it is understood that:

Access to the Platform: Memority provides the Customer with the information necessary 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 preservation and security of their login credentials and agrees not to disclose them to unauthorized third parties. The Customer acknowledges and accepts that Memority may monitor the access of the Customer and its Users and their use of the Services for the exclusive purpose of verifying compliance by the Customer with the stipulations of the SaaS Agreement and/or the applicable GTS and Order.  

Availability and Performance: Memority will ensure that the Platform is available as much as possible and functions optimally. However, Memority cannot guarantee uninterrupted availability due to factors beyond its control, such as network failures or cases of 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 collaborate with the Integrator to ensure a harmonious integration and optimal configuration of the Platform within the Customer's environment. The Customer agrees to provide all information and specifications required by the Integrator and Memority to facilitate this integration.

 

Training and Support: Memority agrees to provide the Customer with resources and relevant documentation to enable optimal use of the Platform. However, the Customer acknowledges that the Integrator will be primarily responsible for training Users and providing support during the implementation of the Platform. The Customer agrees to cooperate with the Integrator and to follow the training and guidelines provided to ensure effective and secure use of the Platform.

 

Technical Support: Memority agrees to provide technical support to the Customer in the event of technical problems or questions related to the Platform, directly and/or through the Integrator. Technical support will be provided through a Ticket system, a telephone help line, and/or online assistance. The Customer agrees to report any incident or problem diligently and to cooperate with Memority and/or the Integrator to resolve these problems as quickly as possible.  

Evolutions and Updates: Memority reserves the right to make improvements, evolutions, or updates to the Platform. These updates may include new features, new modules, security patches, or other improvements. In the event of potential impacts for the Customer, Memority will inform the Customer in advance of planned updates. Memority will strive to minimize any disruption in the use of the Platform during these updates.

 

Planned Interruptions: Exceptionally, Memority reserves the right to perform planned interruptions to carry out maintenance or updates to the Platform. Memority will strive 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 be required to suspend the right of access or use of all or part of the Services and/or Users, and/or to delete any Customer Content: (i) when such access or use or Customer Content (x) presents a security risk or is otherwise likely to harm the Services or (y) contravenes or otherwise violates the rights and other interests of a third party, involves unlawful or prohibited content or activities, or is likely to engage Memority's liability in any other way; or (ii) when Memority is required to do so under applicable legal provisions or pursuant to a judicial or administrative decision.

 

General Obligations of Memority

Availability of the Platform and Services: Memority agrees to ensure the availability of the Platform and to provide the Services in accordance with the terms of the Order signed by the Customer and/or the SaaS Agreement.  

Maintenance and Improvements: Memority will be responsible for regular maintenance of the Platform, including the application of updates, security patches, and functional improvements. The Customer will be informed in advance of planned updates that could affect the use of the Platform.  

Data Security: Memority agrees to implement all useful 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 agrees to promptly inform the Customer of the situation, the measures taken to resolve the incident, and the potential consequences.

 

Collaboration with the Integrator: Memority agrees to collaborate closely with the Integrator to ensure harmonious integration and optimal configuration of the Platform within the Customer's environment.

 

General Obligations of the Customer

Compliant Use: The Customer agrees to use the Platform exclusively for legal purposes and in compliance with the laws and regulations in force. The Customer must not use the platform in an abusive, fraudulent, defamatory manner, or for any other activity that could harm Memority's reputation or violate the rights of others.

 

Secure Access: The Customer is responsible for maintaining the confidentiality of their identification information (ID and password) used to access the Platform. The Customer must not share this information with unauthorized third parties and must immediately inform Memority in case of suspected compromise of their identification information.

 

Compliance with the Platform's terms of use: The Customer agrees to comply with the terms of use of the Platform established by Memority.

 

Payments: The Customer agrees to comply with the agreed payment terms, where applicable, for the use of the Platform. Any delay in payment may result in sanctions, including temporary suspension or termination of the Service.

 

Fitness for Needs: The Customer is responsible for ensuring that the Platform and the subscribed Services meet their specific needs. Before subscribing to the Services, the Customer acknowledges having assessed the suitability of the latter and the Platform for their requirements.

 

Compliance with conditions of use: The Customer agrees to use the Services and the Platform only for internal purposes within its organization. Under no circumstances shall the Customer assign, resell, distribute, reproduce, or make available all or part of the Services or the Platform to unauthorized third parties, whether for commercial purposes or otherwise, without Memority's prior written consent. The Customer acknowledges and accepts that it shall assume sole responsibility for ensuring that its use and the use made by its Users of the Services do not exceed the limits set in the applicable Order.  

Responsibility for Users: The Customer is solely responsible for any use of the Services by Users, and must alone guarantee that the latter do not circumvent or disclose usernames, passwords, or any other access or authentication data, and that they do not interfere with or disrupt the other security control mechanisms of the Services. The Customer must indemnify Memority against any third-party claim resulting from a violation by the Customer or its Users of its obligations arising from the SaaS Agreement.

The Customer will be solely responsible for the acts and omissions of its Users as if they were its own acts and omissions, and will assume the sole obligation to guarantee that any person using the Services does so in accordance with the GTS and/or the special conditions agreed between the Parties, notably in the SaaS Agreement. The Customer specifically agrees to guarantee that neither it nor its Users: (i) will access or use the Services to host or transmit any content, data, or information that is unlawful or that would violate the rights of third parties, such as intellectual property rights or the right to privacy, or that would otherwise contravene applicable legal provisions; (ii) will make any copy, translation, derivative work, disassembly, decompilation, reverse engineering, or any other operation to attempt to discover the source code or underlying ideas or algorithms integrated into the computer applications or other systems used for the purpose of providing the Services (including Infrastructure-as-a-Service – IaaS), unless expressly authorized by applicable law, and that they will not remove any title or trademark, copyright, or legal notices relating to reserved rights appearing in the systems, software, and other elements used for the purpose of providing the Services; or (iii) will 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.

 

Collaboration and Feedback: The Customer will collaborate with Memority and the Integrator by providing constructive feedback regarding the use of the Services. In particular, the Customer will immediately notify Memority as soon as it becomes aware of a violation or risk of violation of this article, or of any proven breach or threat of security breach, including any attempt by a third party to obtain unauthorized access to the systems used for the purpose of providing the Services.

 

Price and payment terms

The Customer shall pay the Price, according to 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 from the invoice issued by Memority.

Memority reserves the right, at any time, to carry out price revisions applicable to the Services to ensure their fairness and economic viability. In the event of a price revision, Memority agrees to inform the Customer of any change by including a transparent description of the new rates applicable at least three (3) months before they take 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 date of subscription) S1 = last SYNTEC index published on the date of revision

The Customer expressly acknowledges that price adjustments in accordance with this clause will under no circumstances constitute a valid reason for early termination of the Services.

Any delay in payment (partial or total) of an invoice will result automatically and without the need for a reminder in:

– a penalty equal to the last refinancing rate of the European Central Bank increased by ten (10) percentage points on the date the invoice was issued. The penalty rate is applied to the total amount of the invoice including tax; it will only be modified after full payment, even if a partial payment occurs in the meantime. Penalties are due from the 1st day of delay of the invoice concerned and until full payment. These penalties are not subject to VAT; and

– a flat amount of forty (40) euros to cover recovery costs. If the recovery costs incurred by Memority are higher than this amount, the Customer will reimburse them upon presentation of supporting documents.

In the event of a dispute over an invoice, payment of the disputed 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 GTS.

 

Data protection and security

In the context of providing the Services, Memority may be required, for certain processing operations, to act as a processor within the meaning of European Regulation 2016/679 of April 27, 2016, which entered into force on May 25, 2018 (hereinafter, the "GDPR") by processing Personal Data on behalf of and according to the Customer's instructions. Memority agrees to process the latter in accordance with the provisions specifically agreed between the Parties or, failing that, the provisions of the Addendum relating to the processing of personal data.

The Parties agree to comply with all legal obligations incumbent upon them regarding Personal Data law and in particular the GDPR. Memority agrees to provide the Customer with a Platform and Services that respect 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 broadly, Memority agrees to satisfy the security and protection obligations for Personal Data. To this end, it agrees 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 constitutes an essential condition for the Customer. Memority is responsible for maintaining the security of the Personal Data contained within the Platform, both through components and services developed in-house and upstream components and dependencies (e.g., libraries, operating environment, or third-party APIs). Memority ensures that the security of the Platform and the Data and Content therein follows the evolution of technology by aligning with the standards and frameworks related to the Platform.

 

Customer Content

The Customer Content is the sole property of the Customer, and Memority and the Integrator have no ownership rights over it. The Customer remains responsible for the legality and relevance of its Content, as well as any authorization required for its use.

In the performance of the Services, the Customer authorizes Memority to process its Content and in particular Personal Data, in accordance with written instructions transmitted by the Customer, under the conditions specifically agreed between the Parties and/or in the Addendum relating to the processing of personal data.

The Customer grants Memority the non-exclusive right to host, store, process, modify, and transfer all or part of the Customer's Content for the sole purpose of 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 agrees to delete, as soon as possible, the Customer's Content, in accordance with the provisions agreed between the Parties.

The Customer acknowledges and accepts that Memority may, during the performance of the Services and beyond, use the characteristics, trends, and any statistical data resulting from the use of the Services (excluding Content) for the purpose of developing and/or improving the Services of any other product and service provided by Memority.

 

Intellectual Property

The Customer acknowledges that, with the exception of Configuration Data, which is the property of the Customer, all intellectual property rights relating to the Platform and the elements that compose it, in particular developments, databases, applications, interfaces, graphic elements, trademarks, and/or any related content, documentation, as well as any support provided by Memority to the Customer, are the exclusive property of Memority and/or its licensors. The Customer agrees 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 for evolution of the Services and in the event that Memority decides to accept and implement such a request, all of these evolutions, improvements, and/or additions made in response to a request for Additional Service from the Customer will be considered an integral part of the Platform and/or Services and will be the exclusive property of Memority and/or its licensors. The Customer acknowledges and accepts that in no case shall it be able to claim any intellectual property right over the evolutions, unless a separate written agreement is concluded between the parties.

Under the conditions defined by the SaaS Agreement and/or the Order signed by the Customer, Memority hereby grants the Customer, for the entire duration of the applicable Order, a non-exclusive, revocable, non-transferable, and limited right to use and authorize its Users to use the Services.

Such a license right shall in no case (i) constitute a transfer of ownership of intellectual property rights concerning the Platform and/or the Services to the Customer; (ii) allow 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 modification or derivative work) to a third party, or for any purpose whatsoever; (iii) allow 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 referred to as "Feedback"), the Customer grants the latter the right to use, reproduce, and incorporate such Feedback into the Service without any obligation of compensation or attribution.

If the Customer becomes aware of it, they must immediately inform Memority of any suspected violation of intellectual property rights related to the Services and/or the Platform. Memority reserves the right, at its sole discretion, to take measures to protect its intellectual property rights, including suspension or termination of the Services in the event of a material breach.

 

Warranties and Exclusions

Memority warrants that the Services provided to the Customer will substantially comply with the specifications provided in the Order and the description provided relating to the subscribed Services. This warranty shall not apply in the event of: (i) access or use of the Services by the Customer or by any User not in compliance with the GTS, the relevant Order (or any appendix to this Order), or Memority's instructions; (ii) modification or change made by any Party other than Memority to the Services or to the systems, software, or any other content or equipment integrated into these Services; or (iii) provision of the Services free of charge or on an experimental basis or in their pre-commercial version or in their beta version.

The Customer shall notify Memority in writing and without delay of any non-conformity of the Services, describing it with sufficient precision and at the latest within thirty (30) days following the Customer's discovery of this non-conformity.

Unless otherwise expressly stipulated in the service level agreements (SLA) agreed with the Customer, Memority will use all economically reasonable efforts to correct this non-conformity. If Memority is unable to correct this non-conformity, after having made all economically reasonable efforts to this end for a reasonable period, each of the Parties may terminate the relevant Order corresponding to the non-conforming Service(s) by written notification addressed to the other Party, in which case the Customer shall receive, as sole and exclusive remedy, the reimbursement by Memority of all sums already paid by the Customer in payment of the Price, calculated pro rata for the remaining service period after the effective date of termination. All other mechanisms provided for in Article 1223 of the French Civil Code are hereby excluded.

Unless otherwise expressly stipulated in this article, Memority and its licensors make no representations and provide no warranties of any kind, whether express or implied, legal or otherwise, relating to the Services or their element(s). These exclusions only apply under the conditions prescribed by applicable legal provisions.

High-Risk Activities. Memority expressly excludes, on its own behalf and on behalf of its licensors and the Cloud Provider, any express or implied warranty of fitness of the Services for the conduct of High-Risk Activities.

 

Third-party claims

Memority shall have no obligation and shall in no case be held liable under Article 11.1 in the event of a dispute originating from:

  • Customer Content;
  • the use of the Services by the Customer or its Users after Memority has requested the Customer to cease or have ceased such use and the Customer has had a reasonable opportunity to cease or have ceased such use;
  • any unauthorized modification or use of the Services when 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 that constitutes a breach of these GTS and/or Memority's instructions, when the violation or misappropriation would not have occurred in the absence of this breach;
  • any dispute alleging a willful violation and in the context of which an unfavorable judgment has been rendered against any person other than Memority or the Cloud Provider;
  • any combination of the Services with any other product, service, software, content, data, or method that was not provided by Memority; or
  • any free (royalty-free) license or trial license of the Services.

If any part of the Services constitutes a violation or is considered by Memority as constituting a violation or likely to be judged as such, the latter may choose (at its discretion and at its expense) to: (a) subscribe to a license allowing it to use the element that (allegedly) violates these rights; (b) replace the element constituting an (alleged) violation with a non-infringing equivalent; or (c) modify the element constituting an (alleged) violation in order to make it compliant 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 shall i) defend (at its expense) Memority and its licensors against any claim brought against Memority by any third party arising out of or related 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 a third party; (c) the use by the Customer or its Users of the Services or any other act committed in violation of these GTS, other contractual provisions binding Memority and the Customer in the context of providing the Services or the Order; or (d) the conduct, by the Customer or a User, of High-Risk Activities, and ii) pay the amount of damages and interest that Memority has been ordered to pay by a final decision or the amount agreed in the context of a settlement of the dispute approved by the Customer. The foregoing stipulations shall apply both when the damage was caused directly by the behavior of the Customer and/or a User and when the damage was caused by the behavior of a third party using the access credentials of the Customer or a User if the Customer made their credentials available through negligence or chose them in such a way that they could easily be hacked.

This article constitutes the Customer's sole and exclusive remedy and the entire obligation of Memority (and its subsidiaries) towards the Customer in connection with any dispute relating to a violation 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, willful misconduct, fraud, or deceit attributable to one of the Parties; and (ii) Memority's right to recover all sums due in payment of the Price agreed upon hereunder, the liability of each of the Parties (or Memority's licensors) shall in no case, and regardless of the nature of the remedy, be engaged towards the other Party or towards any other person or entity under these GTS for an amount of damages per calendar year exceeding the total Price paid (annual fee, increased by the amount due for Specific Services where applicable) during the twelve (12) month period preceding the date of the incident giving rise to the liability.

To the extent permitted by law, neither Party shall be held liable to the other Party under any legal grounds or liability doctrine, even if a Party has been informed of the possibility of requesting such damages as compensation for indirect, incidental, special, consequential damages, loss of profits or savings, revenue, or goodwill; damages resulting from suspension of activities, unauthorized access, alteration, or loss of Customer Content.

The Parties acknowledge that the limitations of liability defined in this article reflect the responsibility of the Parties under their respective obligations and constitute substantial elements of these GTS, and that the Parties would not have entered into a contractual relationship in their absence.

No remedy, in whatever form, arising from these GTS, may be brought against the Customer more than two (2) years after the Customer became aware or should have become aware of the event giving rise to this remedy.

 

Duration and termination

These GTS will take effect from the effective date defined in the corresponding Order or the SaaS Agreement. Unless otherwise stipulated in the Order or the SaaS Agreement, 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 before 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 is subject to insolvency proceedings or any equivalent proceedings in another jurisdiction, and these 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 GTS, the SaaS Agreement, and/or an Order.

In addition to the other remedies available to a Party at law, in equity, or under the GTS, a Party may terminate the Services and/or any Order after 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 GTS and/or an Order without having remedied it (if applicable) within thirty (30) days, including in the event of an act or omission by the Customer or a User that gave Memority the right to suspend the provision of Services. A material breach is defined as a breach preventing the continued performance of the GTS and/or any Order or which seriously harms 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 this termination apply only for the future from the date of notification and will not be retroactive. In the event of termination, the Customer must pay all amounts due for services provided until the effective date of termination. The Parties acknowledge that any Service that has been paid for by the Customer or that the Customer has committed to pay for is recognized as having been useful to the Customer.

By express derogation from the provisions of Articles 1224 and 1226 of the French Civil Code, the Parties also agree that, with the exception of these stipulations, the SaaS Agreement and/or any Order cannot be terminated by simple notification addressed by the creditor to the debtor.

On the effective date of expiration or termination of an Order, the Customer will terminate access and use of the Services by the Customer and its Users.

 

Confidentiality

Each Party agrees to use the Confidential Information of the other Party within the limits of what is strictly necessary and for the sole purpose of performance of the Services and Orders. Each Party agrees to take reasonable measures to protect the Confidential Information of the other Party, provided that these 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 can reasonably be expected.

Each Party may disclose the Confidential Information of the other Party to its employees, contractors, licensors, or agents who: (a) need to know it to perform the Orders or Services, and (b) are legally bound to protect the Confidential Information under terms at least as protective as those provided for in these GTS. In addition, Memority may disclose the Customer's identity to its subsidiaries, employees, suppliers, service providers, and licensors for the sole purpose of performance of the Services and Orders.

This article does not apply to information for which either Party can demonstrate that: (a) it was already published at the time of disclosure or shortly thereafter, or 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 confidentiality obligation; (c) it was received after being disclosed by a third party who had the right to disclose such information (without a corresponding confidentiality obligation); or (d) it was independently developed by the receiving Party without recourse to the Confidential Information of the disclosing Party.

The receiving Party will not be considered to have breached its obligations under this article if it discloses Confidential Information of the disclosing Party within the strict limits required by law to satisfy a legal obligation imposed by an administration or a regulatory authority, subject to proceeding without delay upon receipt of such a request, and provided the law allows it, to: (i) notification of the disclosing Party before any such disclosure to allow the latter to oppose this disclosure or to take any measures it deems appropriate to protect the Confidential Information and; (ii) the adoption of all necessary measures to restrict any disclosure to the strict minimum necessary to satisfy the legal obligation imposed by a competent administration or regulatory authority (including by redacting sensitive commercial information if the law allows).

Any reproduction of Confidential Information of the other Party shall remain the property of the disclosing Party, and the latter may at any time, including upon termination or expiration of the Services or Orders, request the receiving Party to return, destroy, or delete (and confirm such destruction or deletion) according to the instructions given (and in such a way that they cannot be recovered) all Confidential Information of the disclosing Party in the hands or under the control of the receiving Party. Notwithstanding the foregoing, each Party may archive all copies of Confidential Information it is required to keep to comply with the legal provisions and other accounting requirements to which it is subject.

The Customer further agrees not to disclose the conditions defined in these GTS and/or in the Order(s) to a third party unless the Parties agree otherwise.

 

Force Majeure

Aside from the Customer's obligation to pay Memority the agreed sums under any Order, neither Party shall be held liable for any delay or failure to perform an obligation under these GTS and/or the SaaS Agreement when such delay or failure was caused by a circumstance or event beyond its reasonable control, including, but not limited to, electrical or power failures, telecommunications equipment or service failures, earthquakes, storms or any other natural disaster, 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 disruptions.

 

Assignment

The Customer acknowledges and accepts that it may not assign the SaaS Agreement or any Order nor grant a sub-license and/or delegate any of the rights it has or the obligations it is bound by, including automatically, without prior written authorization from Memority, and any attempt to do so in violation of this clause shall be considered null and void. These GTS are binding on the Parties, their respective successors, and their authorized assigns and applicable for their benefit.

 

End of Services and Reversibility

At the end of the Services, the following provisions will apply:

Memority agrees to transmit to the Customer, as soon as possible, the Configuration Data as well as its Content, in accordance with the format agreed between the Parties.

In particular, Memority agrees to cooperate and provide any reasonable assistance to the Customer and/or its employees to facilitate the orderly liquidation of the use of the Services and/or to ensure the transition to the services of another provider. During this transition period, the Customer agrees to pay the fees due for applications connected to the Platform during this time. Given the nature of the Services, the Parties agree to discuss and agree together on the technical and commercial terms (including the amount of fees due) of the reversibility, in a separate contract to ensure a planned and orderly transition.

If the termination results from a breach by the Customer of the stipulations of these GTS and/or the SaaS Agreement, Memority will invoice the Customer in advance for all assistance services provided in the context 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 total completion of the reversibility phase if applicable, Memority will destroy, have destroyed, or otherwise delete the Customer's Content in its possession or held by its Cloud provider (including data backups).

Customer Content will be stored for a maximum period of 90 days following the expiration or termination of the Customer's subscription, and Memority will delete it, including Personal Data, unless applicable legal provisions or contractual provisions agreed between the Parties authorize or oblige Memority to keep all or part of this Content.

 

Subcontracting

The Customer acknowledges and accepts that Memority is free to use the 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 guarantor to the Customer for the proper performance of their services.

The Customer expressly authorizes Memority to change subcontractors/providers at any time. This change is subject to prior information of the Customer by Memority at least one (1) month before the operation of said change. Memority agrees to select a provider offering services at least equivalent in terms of performance, such that no change is perceptible to the Customer. This change does not grant a specific right of termination for the Customer, unless otherwise agreed between the Parties.

 

Compliance with legal provisions

Memority will comply with all legal provisions applicable to it and its activity in the context of providing Services to the Customer, and the Customer will comply with all legal provisions applicable to it and its activity in the context of providing its Content and using the Services. Each Party will comply, in particular, with the legal provisions applicable to personal data protection according to the capacity in which it acts in the context of processing the Customer's Personal Data in connection with the performance of these GTS.

 

Partial invalidity

If one or more provisions of these GTS are held to be invalid or declared as such pursuant to a law, regulation, or following a final decision by a competent court, 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 will most respect the objective and economic effect sought by the clause initially agreed upon. The same principles will apply in case of incomplete provisions.

 

Communication

The Parties acknowledge and agree that Memority may, subject to compliance with the confidentiality obligations set out in these GTS, refer to the commercial relationship established with the Customer for communication and marketing purposes. This 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 agrees to exercise this authorization responsibly and to comply with the general communication guidelines provided by the Customer, where applicable. The Customer acknowledges that this mutual communication can contribute to the business development of both Parties by strengthening their respective visibility. The Parties agree that communication activities must under no circumstances 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 the context of its communication activities. This communication clause remains in effect for the duration of the commercial relationship between the Parties and persists after its expiration or termination, unless otherwise expressly indicated in a written agreement between the Parties.

 

Independence of the Parties

Neither Party may claim the provisions of these GTS to claim the status of agent, representative, or employee of the other Party, in order to assert a relationship of subordination between the two Parties. Each Party retains its full autonomy, its own responsibilities, and its own clientele. Memority will perform the Services in complete independence, whether on its own premises or on the Customer's premises. Memority's personnel remain under the latter's authority and comply with the directives given to them by Memority. All personnel of each Party intended to intervene in the context of the Services remain under its responsibility. Neither Party may give orders to the personnel of the other Party.

 

Non-waiver

No delay, negligence, or forbearance on the part of one of the Parties in exercising its rights aimed at obtaining performance by the other Party of these GTS shall be deemed to constitute a waiver of the exercise of these rights, shall in no way prejudice the rights of that Party under these GTS, and even partial exercise of one of these rights shall in no case prevent any subsequent exercise of these rights or any other right.

 

Applicable law and jurisdiction

In the event of difficulty in performing the Order and before implementing the conditions for its termination, each Party agrees to initially seek an amicable solution to the dispute between them. To do this, the Parties will designate two persons duly authorized for this purpose. These persons will meet at the initiative of the most diligent Party within thirty (30) days from receipt of the registered letter with acknowledgment of receipt requesting a conciliation meeting. The agenda for this meeting is set by the Party taking the initiative for 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 A DISPUTE RELATING TO THE FORMATION, INTERPRETATION, PERFORMANCE, OR TERMINATION OF THE ORDER AND FAILING AN AMICABLE CONCILIATION BETWEEN THE PARTIES WITHIN A MAXIMUM PERIOD OF THIRTY (30) DAYS FROM THE NOTIFICATION OF THE GRIEVANCES BY THE MOST DILIGENT PARTY, JURISDICTION IS ASSIGNED TO THE COMPETENT COURTS OF STRASBOURG, NOTWITHSTANDING PLURALITY OF DEFENDANTS OR WARRANTY CLAIMS, EVEN FOR EMERGENCY PROCEDURES OR PROTECTIVE PROCEDURES BY WAY OF SUMMARY PROCEEDINGS OR PETITION.

General Conditions for the Provision of Services (GCPS)