Terms of service
The Terms of Service (hereinafter referred to as the "ToS") apply to any subscription to the FORMANCE Solution (hereinafter referred to as the "Solution") and associated services (hereinafter referred to as the "Services") entered in force between the Partner and GOLDILOCKS, simplified joint stock company with a single shareholder with a registered capital of 100 euros, registered under the Paris trade and companies register, No. 898 531 371., with its registered office located at 9, rue des Colonnes, 75002 PARIS - France (hereinafter referred to as "FORMANCE").
FORMANCE offers a programmatic Solution enabling fintech applications (hereinafter referred to as "Application") and/or software (hereinafter referred to as "Software") and marketplaces (hereinafter referred to as "Platform") to build, supervise and track their payment workflows, controlled by their Payment Service Providers (hereinafter referred to as "PSP") providing them payment services (hereinafter referred to as "Payment Services") according to their own Master Payment Services Agreement (hereinafter referred to as "Master Payment Services Agreement"). The Solution is provided via API.
The partner identified within the Particular Conditions wished to be provided with the Solution and associated Services (hereinafter referred to as "Partner").
FORMANCE sent the Partner a Proposal (hereinafter referred to as "Proposal"), which completes the Particular Conditions above (hereinafter referred to as "Particular Conditions"),
The PARTNER and FORMANCE are hereinafter referred to as, individually the "Party", and, together the "Parties".
ANY SUBSCRIPTION TO THE FORMANCE SOLUTION AND ASSOCIATED SERVICES IMPLIES THE ACCEPTANCE BY THE PARTNER OF THESE TERMS OF SERVICE.
ARTICLE 1. CONTRACTUAL DOCUMENTS
The Agreement consists of the following contractual documents, listed in order of precedence:
The Particular Conditions;
The Terms of Service in force,
The Appendixes (Pricing and Service Level Agreement).
In the event of a contradiction between one or more provisions of the contractual documents forming part of the Agreement, the provisions of the higher-ranking documents shall prevail.
ARTICLE 2. PARTNER INFORMATION
As part of FORMANCE duty to inform and advise under French law, the Solution was presented in detail to the Partner, in particular by means of a documented commercial presentation.
The Partner acknowledges that he has verified the suitability of the offer and the Services to its needs and constraints and that it has received from FORMANCE the necessary information and advice to enter into this Agreement knowingly.
ARTICLE 3. ACCEPTANCE AND MODIFICATION OF THE AGREEMENT
3.1. Acceptance of the Agreement
The Agreement apply to any Partner subscription to the Solution and Services.
The Partner undertakes to read these Agreement carefully and to accept it before subscribing to and using the Solution.
3.2. Modification of the Agreement
FORMANCE may modify this Agreement at any time. These modifications will be notified to the Partner on a durable medium at least thirty (30) days before the changes come into force.
In the event of substantial modifications hereto, the following hypotheses should be distinguished:
Either the Partner consents to the said substantial modifications, in which case they shall automatically come into force on the date provided for in the notification, or
Either the Partner refuses the substantial modifications, in which case the Partner may terminate all or part of the Agreement in advance, without charge, by sending a registered letter with acknowledgement of receipt within thirty (30) days of the notification. In this case, the Partner undertakes to pay FORMANCE all the sums corresponding to the use of the Solution and the Services up to the date on which the termination takes effect, where applicable calculated on a pro rata basis of the initial commitment and the period elapsed. It is specified that, in this case, the termination will take effect on the day the amended Terms of Service come into force.
ARTICLE 4. DURATION AND TERMINATION
Article 4.1 Duration of the Agreement
The Agreement shall come into force upon signature by the last of the Parties for the period defined within the Particular Conditions.
Article 4.2 Suspension
FORMANCE may suspend the Agreement by operation of law, without compensation to the Partner, and without prior notice, in the following cases:
In the event of non-cooperation and/or disloyalty found by FORMANCE, and if there is an urgent need to stop the conduct concerned;
In case of use of the Solution for illegal or unlawful purposes;
In the event of a breach of the commitments made by the Partner under the Agreement.
The Partner shall be notified of this decision by registered letter acknowledgement of receipt.
The suspension may be lifted within a maximum of fifteen (15) working days from the receipt by FORMANCE of a registered letter with acknowledgement of receipt justifying, with proof, that the cause of the suspension notified to the Partner has been put an end to. This lifting is, in any case, subject to the acceptance of FORMANCE.
Article 4.3 Termination
4.3.1. Termination following suspension
Any suspension may lead to termination if Partner does not respond satisfactorily to the grievances notified to it within fifteen (15) days of the first day of Services suspension.
4.3.2. Termination for default
In the event of a serious or repeated breach by one Party of at least one of its obligations hereunder, this Agreement may be terminated by the other Party.
It is expressly agreed that such termination shall take place as of right, thirty (30) days after a formal notice to perform has been sent and has remained without effect.
The formal notice, which must indicate the grievances complained of and the obligations allegedly not complied with, shall be sent by registered letter with acknowledgement of receipt.
4.3.3. Termination for convenience
Cases where the Agreement is concluded for an indefinite period
Where the Agreement is concluded for an indefinite period, either Party may terminate it for convenience by sending the other Party a registered letter with acknowledgement of receipt specifying the reason for the termination.
Subject to what has been planned within the Particular Conditions, the Agreement shall be terminated sixty (60) days after receipt of the said letter by the Party to whom it is addressed if the period during which the Agreement has been performed is less than or equal to three (3) years.
The Agreement will be terminated automatically six (6) months after receipt of the said letter by the receiving Party when the period during which the Agreement has been performed is greater than three (3) years.
Cases where the Agreement is concluded for a fixed term
Where the Agreement is concluded for a fixed term, each Party shall be bound to perform it until the end of the commitment period specified in the Particular Conditions.
Subject to what has been planned within the Particular Conditions, each Party may nevertheless oppose the tacit renewal of the Agreement by terminating it by sending the other Party a registered letter with acknowledgement of receipt in the delay defined within the Particular Conditions.
In the event of termination in accordance with the above provisions, the termination will take effect on the anniversary date of the Agreement.
4.3.4. Other reasons for termination
The Agreement is entered into intuitu personae, in consideration of the qualities of the Partner and the existing relationship between FORMANCE and the Partner.
Consequently, FORMANCE may terminate the Agreement by operation of law in the event of a takeover of the Partner by a third party or the transfer of the Partner's business to a third party.
Article 4.4 Consequences of the Agreement expiration
The Partner acknowledges that the expiration, cancellation or termination of the Agreement for any reason whatsoever shall result in the immediate termination of the rights granted to the Partner under the Agreement. Accordingly, the Partner agrees and acknowledges that upon expiration of the Agreement for any reason whatsoever, it shall have no further right to access or use the Solution and Services.
Upon termination of the Agreement for any reason, the Partner agrees to:
Return to FORMANCE all types of information and/or data to which it has access in the context of the Agreement, regardless of the format or medium, (in this included Personal Data (defined below), Metadata (defined below), financial data, operators data, customers data, Partners data, and/or strategic, technical, professional, administrative, commercial, legal, accounting data, etc. (hereinafter referred to as the "Data")) and as well as all documents of any kind, drawings, concepts, manufacturing secrets, Know-How, information systems, software, transmitted or brought to the knowledge of a Party under the Agreement, regardless of the form and/or media used (hereinafter referred to as "Confidential Information");
Destroy any copies of the documents and Data transmitted under the Agreement, including Confidential Information, that are still in its possession;
Pay all outstanding sums to FORMANCE, if necessary calculated pro rata to the initial commitment and the period elapsed.
The provisions of the Agreement relating to intellectual property, confidentiality, liability, and Personal Data shall survive termination of the Agreement for an additional five (5) years unless otherwise expressly provided by law or regulation.
ARTICLE 5. TECHNICAL REQUIREMENTS
In order to use the Solution, the Partner undertakes to integrate its Application / Software and/or Platform with the API of FORMANCE in accordance with the instructions transmitted by FORMANCE to this effect.
Otherwise, the Partner acknowledges that it will not be able to access the Solution or the Services.
Partner acknowledges that all of the requirements detailed in this section are at Partner's expense.
ARTICLE 6. DESCRIPTION OF SERVICES
Subject to having subscribed to the Solution and to the option for which Partner subscribed (see Particular Conditions), the Partner may benefit from the Services detailed below.
6.1. Provision of the Solution
The Solution allows Partner to define and save their complex financial schemes.
Thus, the Solution allows Partner, notably thanks to Numscript, a built-in and low-code language, to build, supervise and track all its payment workflows (pay-in/pay-out), controlled by their PSP.
To this end, FORMANCE notably provides the “FORMANCE Ledger”, which makes it possible to establish the origin of a transaction and its final destination regardless of the number of intermediate steps between, by mirroring this transaction into a “Ledger Transaction”.
A Ledger Transaction is the “mirror” of a transaction sent by the Client, recorded by the FORMANCE Ledger. Once it has been recorded within the FORMANCE Ledger, a Ledger Transaction provides four pieces of information: source of the transaction, destination, type of asset and amount.
6.2. Interconnexion with PSP
For the performance of the Service, the Partner shall connect the Solution to its chosen PSP. This connection is made thanks to APIs provided by FORMANCE and/or the PSP(s).
The Payment Services related to the Partner’s payment flows are provided exclusively by the PSP. Hence the Payment Services are ruled by the Master Payment Services Agreement concluded between the Partner and its PSP(s).
This Agreement does not affect, in any way, the various PSPs Master Payment Services Agreement.
FORMANCE can’t guarantee its API can necessarily be interfaced with the PSP chosen by the Partner. In the event where FORMANCE would have to develop a new API in order to connect its Solution to the Partner’s PSP, FORMANCE shall Make its best effort to develop it in a short period of time.
6.3. Cloud Hosting
By default, the SaaS Service is hosted by Amason Web Services. [to complete].
The information and contractual conditions are available at any time on request from the Partner to FORMANCE.
At the Partner's request, FORMANCE may perform optional hosting services, especially in case where the Partner would like a on-premise hosting.
Any additional services to be performed by FORMANCE shall be subject to a separate agreement between the Parties.
6.5. Evolution of Services
FORMANCE reserves the right to freely develop the Services, at its sole discretion, in particular in order to improve the existing Services. Any modification of the Services already subscribed by the Partner is directly opposable to him without notice.
The Partner acknowledges that the signing of the Agreement does not in any way give it the right to demand an upgrade of the Services or to obtain the provision of new Services.
ARTICLE 7. OBLIGATIONS OF THE PARTIES
7.1. Obligations of the Partner
In this Agreement "Metadata" means: the Data, including Personal Data, related to payments made by end-users through the Application, Software and/or Platform and collected by the API within the framework of the Services in order to generate the pay outs (including notably the date and amount of transactions and of transfer orders).
Partner agrees to:
Interconnect its Application / Software and/or Platform to the API according to the instructions transmitted by FORMANCE to this effect;
Implement all security measures necessary to protect Data and Confidential Information in accordance with the state of the art in its profession;
Share, in real time, with FORMANCE any information and/or Data necessary for the proper execution of the Services and in particular any Data and/or information required by FORMANCE to provide the Services. The list of required information and/or Data will be transmitted to the Partner within the instructions;
Especially share, in real time, with FORMANCE any Metadata necessary for the proper execution of the Services and/or required by FORMANCE to provide the Services;
verify the compatibility of the various payment service providers with each other, in order to allow FORMANCE to provide the Services;
Pay the Price for the Services as described in Section 9 hereafter.
The Partner acknowledges that FORMANCE has no control over the accuracy and completeness of the information/Data and/or Metadata collected from the Partner.
Consequently, the Partner undertakes to provide FORMANCE with accurate, complete and up-to-date information/Data and/or Metadata. Failing this, FORMANCE will not be able to provide the Services to the Partner, which the Partner expressly acknowledges and accepts.
In any case, the Partner acknowledges that FORMANCE cannot be held responsible for the generation of a payment operation due to the provision by Partner of incorrect, incomplete or out-of-date information/Data and/or Metadata.
The Partner accepts and expressly acknowledges that it is solely responsible for the use of the Solution.
When using the Solution, the Partner undertakes not to undermine public order and to comply with the laws and regulations in force, to respect the rights of third parties and the provisions of this Agreement.
The Partner is obliged to:
Behave in a fair and lawful manner towards FORMANCE and third parties;
Be honest and truthful in the information provided to FORMANCE and others;
To use the Solution in accordance with its purpose as described in these Agreement;
Not to divert the purpose of the Solution, in particular to commit crimes, misdemeanors or contraventions punishable by the penal code or any other law;
Respect the privacy of others and the confidentiality of exchanges;
Respect the intellectual property rights of FORMANCE concerning the elements of the Solution and, if applicable, the intellectual property rights of third parties;
Not to seek to undermine the meaning of Articles 323-1 and seq. of the French Penal Code regarding systems of automated data processing implemented on the Solution;
not modify the information put online by FORMANCE or by a third party;
not to provide Payment Services in an illegal manner;
not disseminate data that will diminish, disrupt, slow down or interrupt the normal operation of the Solution.
7.2 Obligations of FORMANCE
It is expressly agreed between the Parties that FORMANCE is subject to a general obligation of means and that it is not bound by any obligation of result or of reinforced means of any kind.
It is understood between Parties that, for the understanding of the provisions below, the Solution doesn’t encompass the API provided by FORMANCE in order to connect the Solution to the PSPs interface.
FORMANCE undertakes to do everything in its power to make the Solution accessible 24 hours a day, 7 days a week except :
in the case of force majeure or an event beyond the control of FORMANCE,
In the case of any breakdowns or maintenance interventions necessary for the proper functioning of FORMANCE;
In the case where the Solution could not be used because of an incompatibility between the Solution and the PSP’s interface.
However, FORMANCE cannot be held responsible for disruptions, interruptions and anomalies that are not of its making and that affect, for example, transmissions via the Internet network and more generally via the communication network, regardless of their importance and duration.
FORMANCE can’t be held responsible in the event where the Solution could not be used because of an incompatibility between FORMANCE’s API and the PSP chosen by the Partner.
It is furthermore specified that FORMANCE reserves the right to temporarily interrupt the accessibility to the Solution or to suspend all or part of the Services for maintenance reasons, for the improvement and installation of new functionalities, for the audit of the proper functioning of the Solution or in case of malfunction or threat of malfunction.
- “Anomaly": refers to the Blocking and Non-blocking Anomalies that may affect the Solution and/or the Services;
- “Blocking Anomaly": refers to a malfunction that prevents the use of all or part of the essential functionalities of the Solution or the Services;
- “Non-blocking anomaly": refers to all malfunctions other than those defined in the blocking anomalies, in particular those which prevent the normal use of all or part of the non-essential functionalities of the Solution or which can be bypassed.
FORMANCE undertakes to do its best to make the technical corrections to be made to the Solution concerning the possible anomalies in relation to the applicable security standards.
In this respect, it is specified that the anomalies are listed according to the nature of the dysfunctions noted:
FORMANCE will make its best efforts to correct any Blocking Anomaly or to put in place a workaround solution, within seventy-two (72) hours of its notification by the Customer;
FORMANCE will use its best efforts to correct any Non-Blocking Anomaly within five (5) working days from its notification by the Customer.
FORMANCE makes available to the Customers a Technical Support service during working hours, by email at: support@FORMANCE.com
Any intervention resulting from a misuse by the Partner of the Solution or the Services may give rise to specific invoicing.
7.2.3. - Safety & Security
FORMANCE agrees to use its best efforts to:
Ensure logical and physical security of its information systems;
Minimize the risk of a security incident.
ARTICLE 8. INTELLECTUAL PROPERTY
8.1 Intellectual property of FORMANCE
The Partner expressly acknowledges the intellectual property rights of FORMANCE and, where applicable, its licensors to the Solution, its components and related elements and waives any right to contest these rights in any form whatsoever.
The Solution, its components and related elements, including but not limited to trademarks, logos, slogans, graphic charts, graphics, photographs, animations, videos, software solutions and texts and any other content on the Solution, are the exclusive intellectual property of FORMANCE, subject to any part of the Solution that may be licensed as “Open Source” and may not be reproduced, used or represented without express authorization under penalty of legal action.
The Partner acknowledges that, to these day, part of the Solution is coded under the Open Source MIT License, that is a permissive license enabling FORMANCE to commercialize its Solution as proprietary one.
Hence, any representation or reproduction, total or partial, of the Solution and its contents, by any means whatsoever, without the prior express authorization of FORMANCE, is prohibited and will constitute an infringement punishable by the provisions of the code of intellectual property.
In particular, FORMANCE expressly prohibits, by any means whatsoever, the adaptation, modification, decompilation, disassembly, combination of all or part of the Solution with another solution, copying, reproduction, transcoding or reverse engineering of all or part of the Solution as well as the identification of all or part of the source code, except the one that directly derives from the Open Source MIT License.
8.2 License to use the Solution
FORMANCE grants the Partner a personal, non-exclusive, non-assignable and non-transferable right to use the Solution for the entire duration of the Agreement. This license is granted worldwide.
The Partner may only use the Solution within the strict limits of these Agreement and for their own professional needs, to the exclusion of any other purpose.
The right to use means the right to represent and implement the Solution in accordance with its purpose, in the form of an API, via a connection to an electronic communications network, to the exclusion of any other use of the Solution.
It is specified that the Partner may not under any circumstances make the Solution available to a third party, in particular by granting a sub-licence for the use of the Solution, without the express, written and prior agreement of FORMANCE.
The Partner undertakes not to adapt, modify, decompile, disassemble, identify the source code of the Solution, merge or combine said code with any other software, copy, reproduce, transcode, adapt or modify any of the software, including in particular through the intervention of a third party, except as expressly authorized by Article L.122-6-1 of the French Intellectual Property Code.
Any other exploitation of the Solution, its components and its elements, is expressly excluded from the scope of the present license and cannot be carried out without the prior, written and express authorization of FORMANCE.
Thus, the Partner prohibits itself from, in particular any use of the Solution which has the purpose or effect of infringing the intellectual property rights and/or know-how of FORMANCE on the Solution, including in particular any reverse engineering of the Solution.
The Partner acknowledges that the license of use granted in the present article does not confer on them any property right of any nature whatsoever on the Solution and the elements that compose it, which are and will remain the exclusive property of FORMANCE and, if applicable, of its licensors.
8.3 Property of the Partner
The Partner remains the owner of its Application, Software and/or Platform and the related content, namely its trademarks, logos and distinctive signs.
For the execution of this Agreement, the Partner grants a free and non-exclusive license to FORMANCE to use, reproduce, represent, mention its logos, its brands, its corporate name as well as all visible distinctive signs for reference. This license will be valid for the entire duration of the present Agreement and for the whole world.
The Solution contains elements of FORMANCE's know-how, including its API, as well as methods, techniques and software allowing to provide the Services.
The Partner accepts and acknowledges that with the exception of the right of use granted by the present document, the Agreement does not confer any right of any nature whatsoever on the know-how of FORMANCE of which it expressly prohibits itself any use or reuse in any manner whatsoever without the prior and express written authorization of FORMANCE.
In particular, the Partner recognizes that the know-how of FORMANCE is strictly confidential and refrains from any disclosure of the latter.
ARTICLE 9. FINANCIAL CONDITIONS
Article 9.1 Price of the Services
In return for the right of use granted and the Services provided, the Partner undertakes to pay FORMANCE the price of the Services as set out in the Particular Conditions and under the conditions set out herein.
FORMANCE may modify the applicable prices, subject to the conditions set out in the Article 3 “Acceptance and modification”.
Subject to what is stated in the Particular Conditions, the Price of the Services is proportional to the monthly volume of Ledger Transactions processed by the Solution.
The Price of the Services as invoiced to the Partner shall take into account such changes, if any, and shall be the price to be paid by the Partner for the Services provided for the relevant period, which the Partner expressly accepts and acknowledges.
Article 9.2 Billing of Services
The Price for the Services will be invoiced to the Partner on the date defined within the Particular Conditions.
Subject to what the Particular Conditions, the Partner undertakes to pay the invoices sent to it within thirty (30) days from the date of issue of the invoice.
In the event of default or delay in payment, late payment penalties will be calculated as follows:
Late fees = (amount incl. VAT of the invoice x Applicable legal rate for the semester) X (number of days late in the semester / 365).
The Applicable Legal Rate is the interest rate applied by the European Central Bank to its most recent refinancing operation plus ten (10) percentage points.
Late payment penalties are due on the day following the payment date indicated on the invoice, without any prior notice of default being required.
The Partner who is in default of payment is automatically liable to pay FORMANCE a fixed indemnity for collection costs of forty (40) Euros. If the collection costs are higher than the amount of this fixed compensation, FORMANCE can ask for an additional compensation, on justification.
In addition to the late payment penalties, the Partner's failure to pay may result in the suspension of the Service (see Article 4.2 above) until full payment of the amounts due.
ARTICLE 10. LIABILITY & WARRANTY
It is reminded that the Partner may engage the responsibility of FORMANCE if it has previously notified the alleged breach by registered letter with acknowledgement of receipt and if FORMANCE has not responded within thirty (30) days of receipt of this notice.
In any case, it is recalled that the responsibility of FORMANCE can only be sought in case of proven fault.
In general, FORMANCE cannot guarantee that the Solution and/or the Services will generate an increase in revenue.
FORMANCE declines all responsibility :
In case of incomplete, incorrect or outdated information, Data and/or Metadata provided by the Partner, its PSP, or the end-user of the Application, Software and/or Platform;
In case of error made by one or several PSP working with the Partners;
In the event where one or more PSPs would block the interconnection between their software solution and the Solution/FORMANCE’API;
In the event where FORMANCE would no longer be allowed to provide its Services due to a change in banking regulations or their interpretation by the competent authorities;
In case of impossibility to temporarily access the Solution for technical maintenance operations or updating of the published information. The Partner acknowledges that FORMANCE cannot be held responsible in case of malfunctions or interruptions of the said transmission networks;
In case of virus attacks, illicit intrusion in an automated data processing system;
In case of abnormal use or illicit exploitation of the Solution by the Partner and/or a third party;
With respect to the accuracy, completeness or currency of the information, Data and/or Metadata used in connection with the Services;
In case of the Partner's identity theft;
In case of diversion of the Solution from its purpose by the Partner, in particular to commit illegal acts and/or acts punishable by the regulations in force;
In case of delay or non-performance of its obligations, when the cause of the delay or non-performance is related to a case of force majeure;
In the event of a foreign cause not attributable to FORMANCE;
In the event of inaccuracy, incompleteness or obsolescence of the information, Data and/or Metadata provided by the Partner to benefit from the Solution and the Services, and for all the prejudices suffered as a result of the above-mentioned characteristics; and
In the event of unlawful action by the Partner, or contractual non-performance by the Partner in connection with the provision of the FORMANCE Solution.
In the event of abnormal use or unlawful exploitation of the Services by the Partner, the Partner shall be liable for damages caused to FORMANCE and any other third parties and for the consequences of any claims or actions that may arise.
It is reminded to the Partner that as the Solution includes “Numscript” which is a low code solution enabling the Partner to freely build its own payments flows and their general architecture, FORMANCE shall not be liable in the event where the Partner uses the Solution in an illicit way. Thus, it is the Partner responsibility to determine whether its use of the Solution implies to be granted with a banking licence or any equivalent.
FORMANCE will not be liable for any consequential damages, such as, but not limited to, financial or commercial loss, loss of profit, commercial disturbance, loss of earnings, damage to a third party, or action brought by a third party against the Partner and the consequences thereof, arising out of or in connection with this Agreement.
The Partner is solely responsible for any direct or indirect, material or immaterial damage caused by himself or one of his employees to FORMANCE or to third parties as a result of its use of the Solution or the Services.
In any case, it is expressly agreed between the Parties that if the liability of FORMANCE were to be retained within the framework of the execution of the Agreement for the provision of Services, this liability would be limited, all damages and all claims combined, to the sums paid by the Partner under the Agreement over the last six (6) months.
It is expressly agreed between the Parties that the provisions of this clause shall continue to apply even in the event of termination of the Agreement by a final court decision.
10.2.1 General principles
Each Party covenants and warrants to the other Party:
That it has the power and authority to enter into the Agreement, and that it will secure and maintain, during the course of the relationship, all necessary authorizations, if any, to perform its obligations;
That it owns, or has been granted the rights to use for the purposes of the Agreement, all intellectual property rights necessary to fulfill its obligations, subject to any part of the Solution that may be licensed as "Open Source" and in the latter case, that the "Open Source" license used gives it the right to market and/or license said parts of the Solution;
That it will perform its obligations under the Agreement in accordance with all applicable laws and with reasonable care and skill;
It will not do or omit to do anything that would cause the other Party to violate any applicable law or regulation; and
That it will not denigrate the other Party.
10.2.2 Peaceful possession warranty
In all cases, FORMANCE guarantees that the Solution does not constitute an infringement of an intellectual property right, or any form of unfair competition or parasite. Consequently, FORMANCE guarantees the Partner against any harmful consequences (in particular any conviction and the costs incurred in its defence) resulting from an action for infringement, unfair competition or parasitism by a third party.
In the event where a ban on use the Solution is imposed as a result of an infringement action, the Partner must:
Promptly notify FORMANCE in writing of any alleged infringement;
Not make any admission of infringement without FORMANCE's prior written consent;
Allow FORMANCE to participate in the negotiations and proceedings at its own cost and expense;
FORMANCE shall then, at its option and expense, either:
Obtain the right for the Partner to continue using the Solution;
Replace the infringing part with an equivalent element that is not the subject of an infringement action and that has the same functionality;
Modify the infringing part so as to avoid said infringement.
These choices are at FORMANCE's sole discretion, notwithstanding the Partner's right to seek compensation for damages.
It is agreed between the Parties that, without prejudice to the Partner's other rights under these Agreement, if none of the foregoing alternatives is reasonably practicable, FORMANCE will remove the infringing Solution and compensate the Partner, subject to the liability thresholds set forth hereabove.
Article 11. FORCE MAJEURE
FORMANCE cannot be held responsible if the non-execution or the delay in the execution of one of its obligations described in the Agreement results from a case of force majeure.
ARTICLE 12. PERSONAL DATA
In this Agreement, “Personal Data” shall have the same meaning than in GDPR regulation.
12.1 Data processing carried out by FORMANCE in its capacity as autonomous Data Controller
FORMANCE collects Personal Data about the Partner in order to:
Provide the Partner the Service;
Manage billing for Services;
Manage Partner's rights exercise requests;
To perform statistics in order to improve the Services.
12.2. Data processing carried out by FORMANCE as a processor
The Partner expressly acknowledges that, with regard to the data processing carried out by means of the Solution and the Services, FORMANCE acts as a processor of the Partner.
Data processing by FORMANCE as a data processor is governed by the obligations set forth in Appendix 1 – Personal data processor’s obligations.
ARTICLE 13. CONFIDENTIALITY
Each Party agrees to use the Confidential Information, directly or indirectly, in whole or in part, only for the strict performance of this Agreement.
Any substantiated disclosure may result in liability, regardless of the cause of the disclosure.
The confidentiality obligations set forth in this clause shall not apply to all or any portion of the Confidential Information to the extent that:
They were legally held by the receiving Party prior to their disclosure;
It has been lawfully disclosed to the receiving Party by a third party without restriction of disclosure;
They are subject to legal disclosure by any competent court, authority or administration.
This confidentiality provision shall survive the termination of the Agreement for any reason until (i) the Confidential Information passes into the public domain other than through a breach by the receiving Party or (ii) for an additional five (5) years unless otherwise expressly provided by law or regulation, depending on which hypothesis occurred first.
ARTICLE 14. GENERAL PROVISIONS
The Agreement is written in English. In the event where it is translated into a foreign language, only the English version shall be deemed authentic in the event of a conflict of interpretation between the different versions.
No indication or document may create obligations not included in the Agreement unless they have been the subject of a new agreement between the Parties.
This Agreement does not in any case confer on the Partner the status of a FORMANCE employee, representative or agent. The Parties further declare that under no circumstances should this Agreement be considered as constituting any legal person or legal entity whatsoever, and that any form of "affectio societatis" is formally excluded from their relationship.
The fact that one of the Parties does not take advantage of a breach by the other Party of any of the obligations referred to in the Agreement shall not be interpreted for the future as a waiver of the obligation in question.
In the event where any provision of this Agreement is held to be invalid or unenforceable under any applicable law or regulation and/or any court decision having the force of res judicata, such provision shall be deemed to be unwritten but shall not affect the validity of the other provisions, which shall remain fully applicable.
Any notification between the Parties shall be made to their address appearing in the Preamble of the Agreement. In the event of a change of address, the Party concerned shall inform the other Party as soon as possible.
By express agreement, the signing of the Agreement entails acceptance as proof of the electronic communications exchanged between the Parties. The printout of these electronic communications shall be considered as an original writing that is authentic between the Parties.
In the event of any difficulty of interpretation between any of the headings appearing at the head of the clauses of the Agreement and any of the clauses, the headings shall be declared non-existent.
ARTICLE 15. JURISDICTION AND APPLICABLE LAW
This Agreement, its execution and interpretation as well as the relations between the Parties are exclusively subject to French law.