General terms and conditions of Raffiné™

Created in 2008, Perfect Memory is a software publisher that provides semantic technology products and services to organise, access, use and operate collective knowledge into organisations. Perfect Memory markets a Solution, which enables the collection, interpretation and transformation of all content and documents into resources that can be directly used by operational staff and their ecosystem.

Article 1. DEFINITIONS

The following capitalized terms shall have the following meanings in this general terms and conditions:

• • “Agreement” or “Contract” means the General Terms and Conditions of Raffiné™.
  • “Assets” means the information, publications and, in general, all data collected, generated, manipulated or modified by the Client using the Solution.
  • “Anomaly(ies)”: means the malfunctions, bugs, errors, processing abandonment, erroneous results or any other repetitive and reproducible defect(s) observed by the Provider and/or the Client, exclusively attributable to a non-compliance of the Customer Success or the Solution with respect to the Specifications, regardless of improper or non-compliant use by Client or Authorized users. Anomalies can be of four levels:
  • “Client” : the party that signs the T&Cs.
  • “Critical Anomaly(ies)”: refers to Anomalies which lead to the unavailability of the Solution or core usages features.
  • “Urgent Anomaly(ies)”: refers to Anomalies with major functional impact on the operation of the Solution.
  • “Important Anomaly(ies)”: refers to Anomalies with minor impact on the operations of the Solution.
  • “Routine Anomaly(ies)” or “Planned Anomaly(ies)”: means any other Anomaly(ies) allowing the continued operation or full use of the Solution.
  • “Authorized User(s)”  means any person authorized to connect to the Solution in accordance with the provisions of the license granted to them.
  • “By-pass solution”:     means the implementation of a temporary solution (modifying the Solution, or the “business processes”) which eliminates for Client the consequences of an Anomaly.
  • ” Confidential Information “:   information of any nature that may be exchanged between the Parties during the execution of the Agreement and not disclosed to any third party whatsoever is considered confidential information.
  • “Customer Success”: refers to all services performed by the Provider pursuant to the Agreement, encompassing, but not limited to, integration, development, deployment services, and any additional or supplementary services that the Provider renders at the behest of the Client.
  • “Documentation”: means the documents in French and/or English, of any kind and nature (technical, conditions of use, installation …) and on any medium whatsoever describing the functionalities of the Solution in their successive versions and generally all the technical information relating to the Solution either necessary or useful to the latter’s use or operation.
  • “Environment”: means the technical hardware and software environment in which the Solution is intended to be deployed (servers, networks, etc.).
  • “Maintenance”: refers to the comprehensive range of actions undertaken by the Provider with regard to the Solution, encompassing technical, administrative, preventive, adaptive, corrective, and evolutionary measures, as necessary.
  • “Personal Data”: means data which, within the meaning of the Personal Data Protection Legislation, makes it possible to designate or identify, directly or indirectly, a natural person.
  • “Personal Data Protection Legislation”: means all laws and regulations relating to the protection of Personal Data and applicable to either Party under this Agreement and in particular, the European General Data Protection Regulation 2016/679 (hereinafter “GDPR”), as well as national legislation adopted pursuant to the GDPR, including the Data Protection Act of 6 January 1978 as amended. “Referrer”:       means the contact person designated by the Client in accordance with the article “Client’s obligations” herein.
  • “SaaS”: an acronym for Software as a Service, refers to the provision and licensing model by the Provider where the Solution is accessed via the internet, rather than being installed on physical devices such as computers, servers, or other hardware at the Client’s premises.
  • “Solution”: refers to the software package, patches and infrastructure provided or not in SaaS mode by the Provider under the Agreement and enabling the structuring, storage, protection, management and browsing of a mass of audiovisual content combining media, hierarchical descriptions of content and associated knowledge.
  • “Specifications”: refers to any document prepared by the Provider that describe the Solution and/or Customer Success as agreed upon by the Parties, including but not limited to technical architecture documents.
  • “Support” (Technical): refers to the Provider’s department responsible for taking into account and processing the Referrer’s requests.
  • “Technical Prerequisites”:      means the specific attributes and conditions of the Environment that are essential for the proper functioning of the Solution. This includes, but is not limited to, the descriptions and configurations of equipment, networks, and database management systems, as conveyed by the Provider from time to time.
  • “Working Days”:  means the standard business days spanning Monday through Friday, exclusive of public holidays and non-working days observed in France.
  • “Working Hours” refers to the hours between 9:00 am and 6:00 pm, Paris time (France), on Working Days as defined and observed in France.

Article 2. PURPOSE OF THE AGREEMENT

The purpose of this T&C is to define the terms and conditions applicable to the provision of the Solution under the scope of this Agreement.

Article 3. CONTRACTUAL DOCUMENTS

The Agreement is composed of the following parts, which prevail in the following decreasing order of priority:

• The Agreement;
• The Exhibits to this Agreement.

In the event of a contradiction between one or more provisions contained in any of the above documents, the higher-ranking document shall prevail. In the event of a contradiction between two documents of the same rank, the provisions contained in the most recent document will prevail. Any amendment to the Agreement shall give rise to an amendment signed by a representative of each of the Parties duly authorized to bind the Party it represents.

Article 4.          Clients Obligations

4.1.       General provisions

The Client acknowledges that the Provider’s ability to properly perform its contractual obligations is conditioned by the Client’s compliance with its own obligations and by the accuracy and completeness of the information and elements provided by the Client to the Provider.

The Client undertakes to:

• Supply information and data that is of high quality, well-documented, and comprehensive in a timely manner;
• Engage in ongoing collaboration by adhering to a general obligation to disclose information, both passively (upon the Provider’s request) and actively (whenever information is deemed beneficial to the successful execution of the Provider’s obligations);
• Grant the Provider’s personnel access to all necessary resources, including but not limited to staff, premises, installations, computing resources, operating systems, and any additional software required for the Provider to fulfill its contractual obligations. It is understood that all such resources must be provided to the Provider in compliance with the law and third-party rights;
• Guarantee the availability, cooperation, and proficiency of its personnel engaged in the execution of the Agreement;
• Remit payment to the Provider for the Customer Success and Solution at the agreed-upon prices within the stipulated timeframes as set forth in the Agreement.

The Client acknowledges that it has obtained all the information it needs from the Provider and that the Solution, and the Customer Success comply with its needs and adequately meet its requirements. The Client acknowledges that risk of error or bug in the Solution cannot be excluded. The Client is and remains solely responsible for the way in which the Solution is used by Authorized Users, as well as any third party to whom the Client grants access to the Solution, whether or not such access is permitted. The Client shall comply with the Technical Prerequisites.

 

Any delay or failure in the performance of the Client’s obligations may result in an extension of the planned deadlines. Under such circumstances, the Provider reserves the right to bill the Client, who is obliged to settle the corresponding invoices, for any additional expenses incurred due to these delays or failures.

The Provider is exempt from all liability in the following cases:

• the information to be provided by the Client is not given in a timely manner;
• the scope of the Solution and the Customer Success, established on the basis of the information and documents exchanged with the Client, is not respected for reasons not attributable to the Provider;
• the Client does not comply with the payment terms;
• an event occurs that is beyond the Provider’s control;
• a delay is attributed to the Client or a third party;
• and, generally, in instances where the Client does not fulfill its contractual obligations.

Furthermore, the Client agrees to indemnify the Provider against any repercussions arising from liability claims made by a third party against the Provider due to the use of premises, systems, or any equipment provided by the Client, for the execution of the Agreement. Similarly, in instances where the Customer Success or Solution are utilized indirectly by a third party, the Client agrees to bear the financial repercussions of any legal action initiated against the Provider by said third party in relation to the Customer Success, Solution, or the Agreement.

4.2.       Supplies

In order to perform the Customer Success, the Client undertakes to provide to the Provider’s staff all the useful supplies as requested by the Provider including (but not be limited to): API documentation, disks, network access with appropriate login and passwords to the proper performance of the Customer Success.

4.3.       Back-ups

The establishment of a backup system tailored to the data and files that require backup, the utilization of this system, and the routine verification of successful restorations are the sole responsibility of the Client. The Client must ensure that necessary backups of data and files are performed prior to any actions taken by the Provider concerning the Solution. The Provider shall bear no liability towards the Client for any expenses associated with reloading, replacing, or recreating any Assets, information, data (including Personal Data), or software that is lost or damaged, nor for the loss of information or data that is transmitted or stored through the use of the Solution.

4.4.       Referrer – prerequisites

The Client must, as part of the Maintenance services, designate a Referrer, or several if specified in the Exhibit hereto and within the limits of the number specified in the Exhibit.

The Referrer(s) must have sufficient technical knowledge to be able to usefully exchange with the Support. The Referrer must be certified by the Perfect Académie according to the conditions specified in the Financial Appendix. Only this Referrer(s) will be able to access (and ask for) the Maintenance services and Support.

The Referrer(s) may be replaced by a new one by simply sending a letter to the Provider, or by any other means mutually agreed by the Parties. The Client undertakes to transfer to the new Referrer all the knowledge and information necessary to fulfil its duties effectively.

4.5.       Cooperation of the Client

To enable the Provider to perform the Customer Success, the Client must:

• Supply the Provider with all elements, information, and documents that the Client deems necessary for a comprehensive understanding of its computing environment;
• Promptly notify the Provider of any difficulty, obstacle, circumstance, or event that comes to the Client’s attention and may impact the proper execution of the Agreement;
• Establish communication between the Provider and all relevant members of its staff, as well as any suppliers (including hosting providers) that are pertinent to the Customer Success and Solution;
• Appoint a knowledgeable and capable manager from within its staff who possesses the authority to make decisions regarding options proposed by the Provider;
• Acknowledge that the Provider may not have an in-depth understanding of the Client’s specific business or information system. The Client shall clarify or bring attention to any ambiguities or imprecisions as soon as they are recognized;
• Possess all the Technical Prerequisites essential for the Provider and for the operation of the Solution, and refrain from making any alterations independently (e.g., under-provisioning);

 

• Receive, approve, validate, and/or accept the Customer Success and Solution in accordance with the terms stipulated in the Agreement;
• Ensure that approval of the Specifications is given in writing. Any challenge to the choice of Specifications may result in a complementary commercial proposal.

The Client shall bear all expenses relating to the above commitments. Furthermore, should a product (software, service, etc.) prove to be necessary, the Client undertakes to bear the cost thereof. It being understood that the Provider shall make every effort to limit this expense. Thus, if the Provider is aware of two equivalent technical solutions, it shall suggest the least expensive for the Client.

Article 5.          Solution and

5.1.       Know-how

Any methods, methodologies, software, documents, and, more broadly, any components of the Provider’s know-how that were developed prior to the signing of the Agreement and are utilized by the Provider in the execution of the Agreement (including, but not limited to, elements resulting from the creation of any interfaces), and which have been used or adapted for the Client’s specific needs, shall in no event be considered the property of the Client. The Provider shall retain all rights to these components as well as its own know-how and experience in relation to the execution of the Agreement.

5.2.       Intellectual Property

The Solution, and the Documentation provided to the Client by the Provider shall remain fully and exclusively into the ownership of the Provider.

The authorization of use granted by the Provider in this Agreement does not entail any transfer of intellectual property for the benefit of the Client.

5.3.       Right to use the Solution

Provided that the Client respects its commitment under the Agreement, the Provider concedes the Client, on a non-exclusive basis, non-assignable and non-transferable, a right of use under object code of the set formed by the Solution and; the resulting rights of use being conceded to the Client for the European territory and for the entire duration of this Agreement.

The Solution may only be used under the terms and conditions specified in the Agreement.

This license agreement is entered into in consideration of the fees set forth in the “financial terms” section.

The Client undertakes to cease all use upon expiry of this Agreement. In the event of termination of this Agreement for any reason whatsoever, no user will be authorized to access the Solution. In any case, the Client will not have the right to access the source code of the Solution, or any software related to the Solution whether during or after the Term of the Agreement.

5.4.       Prohibition

All rights not explicitly granted to the Client are reserved and, as such, prohibited. Consequently, the Client and more broadly to any Authorized User is strictly forbidden from engaging in the following actions (this list is illustrative and not exhaustive):

• access, translate, adapt, modify or edit the source code of the Solution;
• Copying the Solution in any form or onto any type of medium outside the use intended above;
• Give access to the Solution to anyone except Authorized Users,
• Translating, adapting, modifying, or altering the Solution;
• Engaging in reverse engineering, disassembly, or decompilation of the Solution;
• Circumventing or disabling any technological protective measures or digital rights management within the Solution;
• Modifying, tampering with, or removing any “key”-based protection systems integrated within the Solution.

The Provider remains the owner of all its trademarks, domain names, service marks, trade names, logos, designations, copyrights and other proprietary rights, as applicable, in or associated with the Solution and Client shall not at any time during or after the term of this Agreement assert or claim any interest in or do anything that may adversely affect the validity of any trademark, service mark, trade name, logo, designation or copyright belonging to or licensed to Provider (including, without limitation, any act or assistance to act which may infringe or lead to the infringement of any of the proprietary rights of Provider).

Furthermore, the Client acknowledges and consents that the Provider may employ remote or alternative methods to monitor compliance with the terms, conditions, and usage restrictions pertaining to the Solution.

5.5.       Hold harmless guarantee

The Provider shall defend, indemnify, and hold the Client harmless against any action brought by any third party asserting intellectual property rights over the Solution, subject to the following conditions:

1. The Client must promptly notify the Provider in writing, via registered mail with acknowledgement of receipt (“LRAR”) or any equivalent means, of any such action (or any claim), and furnish the Provider with all pertinent information and documentation necessary to safeguard its interests.
2. The Provider shall maintain full authority and discretion over both the criminal and/or civil defense, as well as all settlement negotiations. The Provider reserves the right to single-handedly direct the defense and negotiation strategies.
3. The Client must refrain from making any admission, concession, or statement that could detrimentally affect the Provider’s defense.

The Provider shall only be liable for (i) any damages to which the Client may be condemned by a court decision having the force of res judicata and rules as a last resort, and based on the demonstration of an infringement exclusively attributable to the Provider or (ii) any damages to which the Client may be liable as a result of settlement agreement, provided that the Provider is a signatory thereto or has given its written agreement on the amount of the compensation awarded and on the terms of this settlement agreement.

If an action as described above is initiated or appears to be about to be initiated, the Provider may, at its own discretion, alter or replace all or part of the Solution. If none of these solutions is possible, the Provider may terminate the Agreement without any legal formality being necessary and without having to go to court, provided that it reimburses the Client the amount of the annual fee paid in proportion to the period remaining until the end of the year in which the termination takes place.

The provisions of this article are not applicable to third party products, software, and deliverables or open source software that may be integrated into the Solution, which are provided as is by the Provider, without any warranty of any kind whatsoever.

The foregoing provisions set the limits of the Provider’s liability to the Client in respect of infringement of intellectual property rights. The Provider therefore grants no guarantee other than that described in this article with regard to copyright infringement.

Article 6.          Maintenance and Support

The Provider hereby expressly reserves the exclusive right to rectify and maintain the Solution,. This specifically encompasses Maintenance services. Access to Solution and Specific Developments may be temporarily interrupted in order to ensure the maintenance. In this case, the Client will be informed by email at least [48hrs] in advance.

In the event of a security breach noted by the Provider, likely to seriously compromise the security of the Solution and/or data, the Provider may, without notice, temporarily interrupt the in order to remedy the security breach as soon as possible. The PROVIDER will not be responsible liable for any damage suffered by the Client and/or Authorized Users resulting from any interruption due to maintenance.

 

The Client therefore undertakes not to intervene or to have a third party intervene on the Solution in any way, including maintenance or modifications.

Any violation by the Client of this obligation will, without prejudice to any other terms and conditions of the Agreement, result in the release of the Provider from all warranty obligations, whether arising under statute or the Agreement. Moreover, the Provider reserves the right to seek damages for any breach of this provision by the Client.

The terms and conditions governing Support and Maintenance services are meticulously detailed in Exhibit “Service Level Agreement (SLA),” attached to this Agreement. The Parties acknowledge and agree that the obligations pertaining to SLA and maintenance services, due to their nature, are obligations of means. The Provider shall make reasonable efforts to meet the agreed-upon service levels and provide maintenance services in accordance with industry standards.

 Article 7.          Assets

7.1.       Processing and ownership of Assets

The Client assumes any editorial responsibility for using the Solution. Thus, the Client is solely responsible for the quality, legality, and relevance of the Assets that it processes with the Solution. The Client also guarantees that it is the owner of the Assets or that it has all the necessary authorizations to use them. Consequently, the Provider may not be held liable if the Assets or their processing were contrary to laws and regulations, public order, or did not meet the needs of the Client.

The Client shall defend, indemnify, and hold harmless the Provider and its directors, officers, employees, successors, and assigns from and against all liabilities, damages, losses, and costs, including reasonable attorneys’ fees arising out of third-party claims, actions or proceedings to the extent based on an allegation that the Assets processed with the Solution infringe or misappropriate such third party’s intellectual property rights, or are contrary to laws, regulations, or public order. Notwithstanding any contrary provision in the Agreement, the Client’s liability under this clause shall not be limited or capped.

7.2.       Assets Hosting

he use of the Solution implies the hosting of Assets processed by the Solution. The Client is responsible for hosting the Assets uploaded to the Solution. The Client is solely responsible for doing so..

Article 8.          Authorized Users rights management

The Client shall ensure that no unauthorized person has access to the Solution. In the event that the Client becomes aware that an undue person is accessing the Solution, the Client shall inform the Provider without delay and confirm this by registered mail.

The Client is responsible for compliance by its Authorized Users with this Agreement and guarantees the Provider against any breach by its Authorized Users of this Agreement.

Article 9.          TERM AND TERMINATION

9.1.       Term

The present T&C’s are concluded for a period of [3] years from the day of its signature by the Client. Thereafter it will be automatically renewed for one (1) year renewal terms unless terminated by either Party with 90-day notice prior to the end of the initial or any renewal term.

9.2.       Early termination

Notwithstanding the provisions of the foregoing, this Agreement may be terminated in accordance with the following provision:

1. for extended Force Majeure conditions as set out in the Force Majeure provisions of this Agreement;
2. the Client or the Provider may terminate this Agreement at any time by giving notice in writing to the other Party, which notice shall be effective upon receipt, should the other Party be in material breach of this Agreement and fail to cure such breach within thirty (30) days of written notice thereof.

• Immediately by the Provider, if
  1. there are instituted bankruptcy or insolvency proceedings against the Client which are not vacated within ninety (90) days after the date of filing;
  2. the Client institutes voluntary bankruptcy or insolvency proceedings or otherwise admit insolvency.

9.3.       Consequences of Termination

Upon termination of the Contract, the Client will cease all use of the Solution.

 

The Client also undertakes not to develop a competing solution for a period of 5 years following the termination of the Contract.

Article 10.       Reversibility and Consequences of termination

The reversibility of the Agreement is guaranteed:

• by making the Documentation available to the Client;
• by the use of standardized procedures and methodology, such as the Open Archival Information System (OAIS).

Following any termination:

• Each Party shall remain subject to the obligation of confidentiality in accordance with the provisions of the “Confidentiality” article.
• The termination immediately entails the termination of the license (right of use) granted to the Client to use the Solution. This means that the Client (and all its Authorized Users) must cease all use of the Solution, and where applicable, uninstall and delete any copies of the software or documentation related to the Solution.

Article 11.       Financial terms

11.1.    Principles

The prices and terms of payment for the Customer Success and the license for the Solution are set out in the Exhibit “Technical and Financial terms”.

The prices mentioned are net of tax and will be subject to all applicable taxes in effect at the time of invoicing. The Client is solely responsible for and shall promptly pay all fees, duties, and taxes of any kind, including but not limited to any levies, withholdings, or similar charges that may be assessed or incurred.

Any fees associated with the installation and/or use of the Customer Success and/or the Solution, including but not limited to telecommunication fees and the costs of setting up remote assistance, shall be borne exclusively by the Client.

The prices have been set in consideration of the scope of the Solution and the Customer Success ordered by the Client and is contingent upon the accuracy and completeness of information and documentation provided by the Client to the Provider.

If any information or documentation supplied by the Client is found to be inaccurate, incomplete, or otherwise misleading, the Client acknowledges and agrees that the Provider reserves the right to make adjustments to the scope of the Customer Success, the delivery timelines, and/or the pricing for the Solution or the Customer Success. The Provider may, at its sole discretion, also seek additional compensation or remedies for any losses, expenses or liabilities incurred as a result of the Client’s provision of erroneous information or documents. The Client agrees to cooperate fully with the Provider in resolving such issues and in facilitating any necessary adjustments or remedies.

11.2.    Customer Success Prices

The prices applicable to the Client ordering of Customer Success are indicated in Exhibit “Technical and Financial terms”.

11.3.    Prices of the Solution licenses

The amount of the fee owed by the Client to the Provider, in return for this license to use the Solution which it allows to benefit from, is expressed in the Appendix, as well as the terms and payment deadlines provided for.

The Client accepts that the price mentioned in the Financial Appendix may vary according to the actual use of the Solution or the volume of number of Assets. The Client expressly acknowledges that:

• Any selection of a level on the pricing grid at the signature of the Agreement, or after, will result in the corresponding price being invoiced, regardless of whether the volume of Assets processed by the Solution is not actually reached by the Client at the end of the planned period;
• The Client commits to pay the Provider the minimum price (hereinafter “Floor Price”) indicated in the Exhibit “Technical and Financial terms” each year, irrespective of the number of Assets actually processed by the Solution, even if it is zero. This amount is non-refundable;
• Any exceedance in the volume of Assets processed by the Solution compared to what was stipulated between the Parties shall result in the Provider invoicing the Client at the higher level on the pricing grid retroactive to the first day of the exceedance. The Provider will issue an adjustment invoice to account for the actual use of the Solution, under the pricing conditions specified in Exhibit “Technical and Financial terms”
• The Provider is entitled to invoice the Client, at the current rate, for any additional expenses incurred by the Provider as a result of the Client’s failure to fulfill any of its obligations;

Prices will be revised annually by employing the SYNTEC index (“indice Syntec révisé”) in accordance with the formula stipulated below:

P1 = (P0 x (S1/S0))

Where:

• P1 denotes the Revised Pricing,
• P0 represents the Initial Pricing,
• S0 signifies the SYNTEC Index as mentioned in the Agreement
• S1 corresponds to the most recent index published as of the revision date.

For the purposes of this revision, the Parties have agreed to use the SYNTEC index for the month of May 2025 as a baseline, which is valued at 318.3.

In the event that the SYNTEC index ceases to be published, the Parties pledge to engage in good faith negotiations to adopt a substitute index for the pricing of this Agreement. The substitute index must be no less than the annual inflation rate in France at the time of substitution.

This mechanism ensures that the pricing reflects market trends and is adjusted equitably, preserving the value and fairness of the Agreement for both Parties.

Article 12.         Invoicing

The invoicing for the right to use the Solution takes place on a monthly basis. The amount invoiced reflects the Asset processing level that was mutually agreed upon between the Parties at the commencement of the current term. In cases where this level is surpassed, the Provider is entitled to issue an adjustment invoice to account for the excess consumption.

The Client is obligated to settle all invoices issued by the Provider, in full and without any deductions, discounts, or offsets, within a period of thirty (30) days from the invoice’s date of issuance

In the event that payment is not received within thirty (30) days from the invoice date, the Provider reserves the right to suspend the Client’s access to the Solution and to cease the provision of its Customer Success. Such suspension does not constitute a breach of the Agreement by the Provider, nor is it to be considered as a termination of the Agreement by the Provider. Nonetheless, the Provider may seek compensation for any damages and consequential losses incurred due to the delayed payment.

In accordance with Article L. 441-6 of the French Commercial Code, late payments will incur interest at a rate equivalent to the European Central Bank (ECB) interest rate applicable to its most recent refinancing operation, plus an additional 10 percentage points. This interest will be calculated and accrued from the day the payment became overdue and does not necessitate a formal reminder.

Furthermore, late payments will automatically incur a fixed recovery cost of forty (40) euros. In circumstances where the recovery costs exceed this fixed sum due to the late payment, the Provider reserves the right to claim additional compensation, provided that it can furnish relevant supporting documentation.

Article 13.       Liability

This Article shall apply notwithstanding any legal argument upon which the legal action or the claim might be based, whether in contract, in tort (including negligence) or otherwise, and whatever nature and form it could take. This Article shall survive the expiry and termination of the Agreement for any reason whatsoever.

Under no circumstances may Provider be held liable more than one (1) year after the date on which the facts giving rise to the legal action were discovered or should have been discovered.

Provider can only be held liable in the event of fault on the part of the Provider proven by the Client and under the following express conditions:

• the Client has strictly installed and used the Technical Prerequisites and has not modified them during the Agreement except upon prior written instruction from the Provider;
• The Client has provided the Provider with all the elements, information and documents necessary for the performance of the Customer Success;
• The Client has put the Provider’s employees in contact with any of the Client’s employees concerned by the Customer Success;
• The Client has modified, or caused to be modified, the Solution or the Environment;
• The Client has checked the progress of the Customer Success periodically (in particular during the Steering Committees).

The provider shall not be liable to the Client or any other person for special, incidental, exemplary, punitive, multiple, consequential or indirect damages, whether such damages are alleged in tort, contract, or otherwise, even if the provider has been advised of the possibility of such damages. The provider shall have no liability to the client in respect of the costs of reloading, replacing, or recreating any lost or damaged information, data or software; or the loss of information or data transmitted or stored using the solution. Under no circumstances may the provider be held liable for any indirect damage within the meaning of the jurisprudence of the french courts and tribunals.

The provider total aggregate liability under this agreement or otherwise relating to the solution or customer success shall not exceed an amount equal to one hundred percent (100%) of the cumulative amount, excluding tax, of the sums actually received by the provider, from the client, as remuneration for the solution and customer success provided under the agreement during the twelve (12) months preceding those during which the damage was recorded, without ever exceeding the sum of three hundred thousand (300,000) euros.

Each Party shall use reasonable efforts to mitigate damages for which another Party is liable.

Article 14.       Insurance

Each Party shall obtain and maintain insurance coverage with a reputable insurer against any and all of their potential liabilities in connection with this Agreement (including general and professional third-party liability insurance, and insurance for its own personnel). A Party shall, if requested by the other Party, supply the other Party with a copy of the relevant policies.

Article 15.       Audit

The Provider reserves the right to conduct audits, at its sole discretion, for the purpose of assessing the performance of this Agreement, specifically examining the installation and usage of the Solution at the Client’s premises. Such audits may be conducted by internal or external auditors appointed by the Provider.

The Client acknowledges and agrees to fully cooperate with the auditors appointed by the Provider, providing them with unrestricted access to all relevant information and resources necessary to conduct the audit.

In the event that the audit conclusions reveal breaches of the Client’s contractual obligations, the Provider may, without prejudice to the possible termination of the Agreement, invoice the Client for the sums due for the use made of the Solution that has not been regularly ordered and paid by the Client. The Client expressly acknowledges and agrees to promptly settle the invoice for regularization, within 30 days of receiving the invoice. The invoice shall also include reasonable costs incurred by the Provider in conducting the audit.

Failure to comply with the audit process or to promptly settle the invoiced amounts shall be considered a material breach of the Agreement, entitling the Provider to terminate the Agreement and pursue legal remedies available to it.

Article 16.       Personal data

For the purposes of this article, the terms hereafter used with a capital letter will have the definition given to them by the Regulation (EU) 2016/679 of the European Parliament and the Council of 27 April 2016 (hereinafter the “GDPR”).

16.1.    Description of the processing

In the performance of this Agreement, the Parties acknowledge that the Provider shall have access to certain Personal data for the purposes of managing the Maintenance and Support of the Solution, in particular remotely.

The Parties are also joint Controllers, but strictly regarding the Processing of Personal Data of their staff (employees, associates, temporary workers, trainees, etc.) of which they would become aware during the conclusion or the performance of this Agreement and that they process for the sole purpose of the conclusion or performance of the Agreement,.

16.2.    Client’s commitments to the protection of Personal Data

The Client undertakes to:

• Provide the Provider with the information necessary for the Processing operations;
• Document in writing any instructions concerning the processing of Personal Data by the Provider;
• Comply with the obligations set out in the GDPR throughout the duration of the Processing of Personal data.

16.3.    Provider’s commitments to the protection of Personal data

As a Processor, the Provider undertakes to:

• process the Personal Data solely for the purpose(s) which is/are the subject of the sub-contracting;
• to process the Personal Data only upon the written instructions of the Client. If the Provider considers that an instruction constitutes a breach of the GDPR or of any other provision of Union law or of the law of the Member States relating to data protection, it shall immediately inform the Client.
• ensure the confidentiality of the Personal Data processed under the Agreement;
• ensure that persons authorized to process the Personal Data are trained on Personal Data security issues and have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.

16.4.    Sub-processing

The Provider may engage a Sub-processor to conduct specific processing activities.

In accordance with the needs expressed by the Client, the Solution is interoperable with certain  third-party solutions. Thus, the Client may rely on some third parties for certain services in order to interconnect them with the Solution. Therefore, it is up to the Client to enter into contracts with these various third parties. For the avoidance of doubt, it is hereby reminded that these third parties are not Sub processors of the Provider within the meaning of the GDPR, but the Client’s own Data Processors (as for example, Text Razor, Veritone, Bertin IT, Amazon web services…)

The Provider does not make any commitment with respect to the Client’s own Data Processors.

16.5.    Data subjects’ rights

It is of Client responsibility to inform the data subjects concerned by the Processing operations at the time Personal Data are being collected. Where the Data subject make requests to the Provider to exercise their rights, the Provider must send these requests to the Client by e-mail as soon as they are received.

16.6.    Notification of a Breach of Personal Data

The Provider shall notify the Client of any breach of Personal Data as soon as possible after becoming aware of it and by any means. This notification shall be accompanied by any useful documentation to enable the Client, if necessary, to notify the competent supervisory authority of the breach.

 

16.7.    Documentation

The Provider places at the disposal of the Client, at its request, the necessary documentation to demonstrate compliance with its obligations regarding the Personal Data under the Agreement.

If the information given proves to be insufficient for the Provider to demonstrate that the obligations under the GDPR and/or this article are met, then the Client and Provider shall meet to agree on the operational, security and financial terms of an inspection at the Provider’s premises.  Any potential audit shall be conducted by an independent auditor appointed by the Client who is not a direct or indirect competitor of the Provider, subject to the Provider’s right of reasonable objection based on objective reasons.

Such audits shall be limited to a maximum of two (2) days (unless agreed otherwise between the Parties) and shall take place during of the Provider’s normal business hours and shall be scheduled at least thirty (30) business days in advance by written notice specifying the duration and purpose of the audit.

Such audits are limited to a maximum of one (1) per twenty-four (24) months.

The Client’s audit and review rights under this section shall not extend to any part of the documents, records or other information that is not related to the processing of Personal Data in connection with the performance of the Agreement. Each Party shall bear its own costs of such audit.

Article 17.       Confidentiality

17.1.    Definition

Confidential Information (hereinafter the “Confidential Information”) means the following information communicated by a Party (hereinafter the ” Disclosing party “) to the other Party (hereinafter the “Receiving Party“):

1. any non-public technical or business information of a Party, including any information relating to a Party’s, including the techniques, algorithms, software, current and future products and services, financial information of the Provider;
2. any other information of a Party that is disclosed in writing and is conspicuously designated as “Confidential” at the time of disclosure or that is disclosed orally and is identified as “Confidential” at the time of disclosure;
3. or the specific terms and conditions of the Agreement.

17.2.    Obligation

The Receiving Party undertakes during the performance of the Agreement to keep all the Disclosing Party’s Confidential Information secret and in particular:

• Not to use, reproduce, or modify the Confidential Information for any use other than for the performance of the Agreement;
• To communicate the Confidential Information and documents only to members of its personnel who have a need to know them for the performance of the Agreement;
• To take the steps it takes with respect to its own Confidential Information to prevent its publication or disclosure to third parties;
• Not to keep any copy, after the end or termination of the Agreement, of the Confidential Information and documents transmitted by the Communicant for the performance of the Agreement.

The Receiving Party undertakes to observe this article and shall ensure that its employees and any subcontractors to whom it has communicated the content of the confidentiality obligation will respect this article.

The obligations of confidentiality do not apply to the Receiving Party when:

• the Receiving Party can prove that the Confidential Information was known to it prior to the date of signature of the Agreement, except for any non-public technical or business information of a Party exchanged during the negotiation of the Agreement and that should still be considered as Confidential information and protected under the terms of this article;
• the Receiving Party can prove that the Confidential Information results from an activity conducted for its own needs or for the benefit of an independent third party in good faith;
• the Confidential Information was in the public domain at the date of its communication;
• the Confidential Information is accessible to the public by publication or any other means of communication, except if this fact results from a fault, breach or negligence of the Receiving Party;
• the Receiving Party can prove that the Confidential Information has been communicated to it or can be communicated to it by a third party without a breach of an obligation of confidentiality.

It is agreed that this obligation of confidentiality shall not apply in the event of a communication required by an administrative authority or by virtue of a law, decree, regulation or court decision. This obligation of confidentiality also does not apply to the Parties’ lawyers, accountants and auditors, who are subject to professional secrecy with regard to their clients under the French Criminal Code.

Notwithstanding the foregoing, the Provider may disclose the following financial information to any of the Provider’s potential investors or of its group’s potential investors, provided that such potential investors are bound by confidentiality obligations comparable to those contained in this Agreement :

1. the existence and content of this Agreement,
2. the budget for the Agreement as well as current and projected revenues related to the Agreement.

For the avoidance of doubt, the disclosure of information shall be strictly limited to the above-mentioned points. The Provider remains directly liable for any breach of this Agreement by any of its potential investors or its group’s potential investors.

Article 18.       Suspension of the Solution and Customer Success

The Provider reserves the right to automatically suspend access to and use of the Solution, as well as the performance of the Customer Success, under any of the following circumstances:

• A breach by the Client of the article titled “Prohibition” in this Agreement,
• An order or request issued by governmental, administrative, or judicial authorities requiring such suspension,
• A failure by the Client to remit payment for any amounts due under the Agreement. It should be noted that such a suspension does not release the Client from its obligation to settle any outstanding amounts under the Agreement.

The Client acknowledges and agrees that the aforementioned suspension shall not entitle the Client to any form of compensation, indemnity, or redress from the Provider. Furthermore, the Provider shall not be held accountable for any consequences or damages that the Client may incur due to such suspension.

 

 

Article 19.       General provisions

19.1.    Force majeure (act of god)

The Party that invokes an event of force majeure must, as soon as such an event occurs, notify the other Party by registered letter with acknowledgement of receipt. It will then be exempt from performing its obligations under the Agreement for the duration of this event. However, if this event lasts more than thirty (30) days, the Parties may agree to terminate the Agreement. In this case, the Client shall pay the full amount of the Customer Success performed by the Provider on the date of termination. “Force Majeure” refers to all event or circumstance defined by French law and jurisprudence.

19.2.    Independence of the Parties

The relationships established between the Parties by the Agreement are those of independent contractors, and the Parties do not intend to establish any other relationship between them.

19.3.    Non-solicitation clause

During the performance of Agreement and for one year thereafter, the Parties shall not directly or indirectly, on their own behalf or on behalf of any other person, accept business from, or employ any person of the other Party involved in the provision of the Customer Success. In the event of failure to comply with the above commitments, the Party at fault undertakes to compensate the other by paying compensation equal to twelve (12) months’ gross remuneration of the person solicited.

19.4.    Subcontracting

The Provider may, if it deems it necessary, use a subcontractor for any part of the Agreement. The Provider remains solely responsible to the Client for compliance by its subcontractors with the terms and conditions set out in the Agreement.

19.5.    References

The Provider may use the Client’s name, trademarks, logo and contact details, as well as a general description of the Solution and Customer Success subject to the Agreement, in its presentations, customer lists, case studies and other promotional or marketing materials, including, for example, in its press releases, brochures, reports and statements, letters and electronic media (website, etc.).

19.6.    Entire agreement

The Parties acknowledge that the Agreement constitutes the entire agreement between them with respect to the subject matter hereof and supersedes any prior offer, arrangement or agreement, written or oral. No indication or document may give rise to obligations under this Agreement unless it is the subject of an amendment signed by both Parties. No general or specific terms and conditions appearing in the documents sent and delivered by the Parties may be included in the Agreement. The fact that a Party does not enforce or is late enforcing a provision of the Agreement shall not be deemed to be a waiver of this clause in the future.

19.7.    Proof agreement

Pursuant to the provisions of the French Civil Code, it is expressly agreed between the Parties that, unless there is a manifest error on the part of Provider, the digital data recorded on the servers belonging to the Provider, or placed under the control of the Provider and stored under reasonable security conditions, shall be deemed to provide proof of any instruction, order, payment, use of a Service or any other exchange (electronic messages, connections to the Solution, etc.) between the Parties if they are produced within the context of litigation or other proceedings. Such computer records shall be admissible under the same conditions and with the same probative value as any document drawn up, received or kept in writing and shall be authentic between the Parties until proven otherwise.

The Client acknowledges and accepts in particular that the procedure for acceptance of the Customer Success and the Solution is carried out in accordance with the articles of the French Civil Code and demonstrates the Client’s acceptance and receipt.

19.8.    Export and Import

The Client, who engages in the exportation, re-exportation, importation, or transfer of any portion or the entirety of the Solution must first obtain the express authorization from the Provider to do so. Additionally, the Client assumes the comprehensive responsibility for ensuring strict compliance with all applicable laws and regulations. The Client is also obliged to secure any and all necessary permits, licenses, or authorizations as required by the relevant authorities. It is incumbent upon the Client to undertake due diligence to ascertain the regulatory landscape and legal obligations that pertain to the international movement of goods and services. The Client must also be vigilant in monitoring any changes in the regulatory environment that may affect such activities. In the event of any claim, penalty, loss, damage, expense, or other liability arising from or related to the Client’s non-compliance with the aforementioned legal and regulatory requirements or failure to obtain the requisite authorizations, the Client agrees to indemnify and hold harmless the Provider. This indemnification shall cover all losses, damages, penalties, fines, legal fees, and any other costs or liabilities that the Provider may incur as a result of the Client’s actions or omissions concerning the exportation, re-exportation, importation, or transfer of the Solution.

19.9.    Invalid provision

If one or more provisions of the Agreement are found to be void or are held invalid or declared invalid pursuant to a law, regulation or final decision of a competent court, the other provisions shall remain in full force and effect unless the invalidated provision or provisions are of such a substantial nature that their disappearance would undermine the contractual balance.

The Parties shall make best efforts to replace the invalid provision with a valid and enforceable provision that is close to the common intention of the Parties.

19.10.Headings

In case of difficulty of interpretation of the headings, the headings will be declared non-existent.

19.11.Assignment of the Agreement

19.11.1. Provider

By express agreement, the Client unequivocally grants the Provider the right to assign, in whole or in part, its rights and obligations under the Agreement to any entity, including but not limited to, an affiliate within the same corporate group, an acquiring company, or an investor associated with the Provider. Such assignment may be executed at the Provider’s sole discretion without requiring any further consent from the Client. The Client expressly acknowledges that upon the transfer of the Agreement, the Provider is conclusively and fully released from any future liabilities or obligations pursuant to the Agreement, in accordance with Article 1216-1 of the French Civil Code.

19.11.2. Client

The rights and/or obligations set out in the Agreement may under no circumstances be assigned, sold or transferred, or delegated, in whole or in part, by the Client without the prior written consent of the Provider.

Article 20. Applicable Law and Jurisdiction

This Agreement is governed by the laws of France.

In the event of a dispute, the Parties shall make a good faith effort to reach a resolution through out-of-court negotiations. If an amicable resolution cannot be reached, any dispute concerning the formation, validity, interpretation, performance, termination or consequences of this Agreement shall be submitted to the exclusive jurisdiction of the Court of Appeal of Paris (Cour d’appel de Paris), France.

Article 21. ELECTION OF DOMICILE – NOTIFICATION:

For the performance of the Agreement and its consequences, the Parties elect domicile at the addresses of their respective head offices.

Signed in _________________,

On ______________

By the Client

Name, Quality & signature:

 

 

Exhibit 1 to the Agreement

“Technical and Financial terms”

Exhibit 2 to the Agreement

 “SLA”

Contact details of the Support service:

Perfect Memory Extranet:

https://perfectmemory.atlassian.net/servicedesk/customer/portal/14

Connection information is sent directly to the Perfect Memory contact person for EP.

 

1. Levels of Service

The Provider shall classify the Anomalies in accordance with the definitions in the Agreement.

Rating Anomalies	Max Response time (Working Hour and Working Days)	Max resolution time (Working Hour and Working Days)	Definition of work request
Critical	1 hour	8 hours	Unavailability of the platform or core usages features. In particular, the following are considered to be Critical Anomalies: –          Inability to access the interface for searching and consulting content. –  The search interface does not display any results, whatever the search requested.
Urgent	4 hours	48 hours	Defects with major functional impact on the operations. In particular, the following are considered as Major defects: – Ingest workflow in error preventing the content to come in the platform but not impacting the usage of the platform
Important	8 hours	7 days	Defects with minor impact on the operations. In particular, the following are considered to be Minor defects: – The search and consultation interface presents an Anomaly in the display of information. – The information automatically attached to a media shows an error. – A media referenced in the consultation interface is unreadable and cannot be downloaded.
Routine	2 days	14 days	Cosmetic defects with no discernible impact on the operations, request for information.
Planned	14 days	As agreed	Work subject to requirement analysis, non-routine maintenance activities, planned interventions, new functionalities

 

1. Exclusion:

The Provider shall not be held responsible for service levels under the following circumstances:

• Failure of the Client and/or Authorized User to cooperate with the Provider in resolving Anomalies, including but not limited to, not responding to questions or requests for information;
• Utilization of the Solution in a manner inconsistent with their intended purpose or the provided Documentation;
• Modifications made to the Solution by the Client or a third party without proper authorization;
• Service disruptions attributable to the Internet, or any external component (including software) that is not a part of the Solution;
• Any intentional acts of degradation, malice, or sabotage;
• Deterioration arising from an event of Force Majeure or the improper use of the Solution.

In such cases, the Provider’s obligations concerning service levels as stipulated in the Agreement are unequivocally and entirely exempted, and the Provider shall bear no liability whatsoever for any damages, losses, or consequences arising from or in connection with these circumstances. This exemption applies notwithstanding any provision to the contrary and underlines the Provider’s complete non-liability in such scenarios.