T&Cs

2. PURPOSE OF THE AGREEMENT – CONTRACTUAL DOCUMENTS

2.1.

This Agreement sets out the conditions under which the Client and/or its Affiliates benefit from a Subscription to the Platform, which includes the right to access and use the Platform in SaaS mode and the benefit of the Associated Services. The Agreement also sets out the terms for the performance of any Additional Services that the Client may have ordered.

The Subscription allows the Client and its Users to benefit from the services and features offered by the Platform, namely in particular:

• Allow each user to create business reference frameworks;
• Allow Users to compare assessments;
• Allow Users to carry out sourcing activities.

2.2.

This Agreement constitutes the entirety of the documents existing between the Client and SKILDER and supersedes and cancels any prior oral or written commitment relating to the subject matter hereof.

The Agreement is made up of the following documents, in descending order of priority in the event of any contradiction between their provisions:

• Part A: IDENTIFICATION OF THE PARTIES
• Part B: SPECIFIC TERMS
• Part C: GENERAL TERMS
• The Contract annexes
• The documentation relating to the Platform evaluation interface that may be provided by SKILDER

3. SUBSCRIPTION DESCRIPTION – RIGHT OF ACCESS TO THE PLATFORM

3.1. SUBSCRIPTION DESCRIPTION

The subscription to the Platform includes:

• Access to the Platform under the conditions set out in Article 3.2;
• The Associated Services described in Article 4.

The Client and its Users retain access to the Data generated throughout the Subscription Term, such Data remaining the property of the Client.

3.2. RIGHT OF ACCESS TO THE PLATFORM

SKILDER grants the Client, which accepts it, a right of access to the Platform, in SaaS mode, allowing it to use said Platform and its features exclusively for its internal needs. This right of access is personal, non-exclusive and non-transferable.

The Client benefits from this right of access, subject to payment of the Subscription Fee.

SKILDER may at any time verify, from the Subscription Start Date, whether the Client complies with the provisions of the Contract, and the Client may not object to such audit.

4. DESCRIPTION OF THE ASSOCIATED SERVICES

SKILDER provides the following Associated Services under this Agreement:

• Deployment of the Platform described below;
• Hosting;
• Maintenance;
• Support.

All SKILDER interventions under the Associated Services are carried out remotely. If travel by staff is requested by the Client for the performance of the Associated Services, such travel time and expenses shall be reimbursed by the Client upon presentation of supporting documents.

4.1. DEPLOYMENT OF THE PLATFORM

Under the Associated Services, SKILDER undertakes to:

• Create the Client’s access rights;
• Train users on how to use the product;
• Create and provide the Client with the Users’ Login Credentials;
• Verify the proper functioning of the Platform from the Client’s information system.

SKILDER will endeavor to deploy the Platform within 30 business days following signature of the Contract. Such deployment shall be deemed complete once SKILDER has confirmed the proper functioning of the Platform with the Client.

4.2. DATA HOSTING

SKILDER undertakes to provide the server capacity necessary for the operation of the Platform services and for hosting the Data throughout the Subscription Term.

SKILDER performs regular backups of the Data. To this end, it ensures redundant backup so that the Client is able, as far as possible, to access its Data at any time, within the limits of the availability rate provided for herein.

4.3. MAINTENANCE

SKILDER provides Maintenance under the conditions set out below.

SKILDER will inform the Client of any corrective or enhancement maintenance operations at least five (5) business days in advance. Some of these operations may be carried out during the day subject to the Client's agreement. All downtime resulting from maintenance operations agreed between the Parties shall hereinafter be referred to as "Scheduled Downtime".

The Client acknowledges that the Platform may be unavailable during Scheduled Downtime and that such time will not be counted in the Platform availability rate indicated in Part B.

SKILDER will nevertheless endeavor, to the extent possible, to limit the duration and disruptions caused by such operations. In any event, the Platform availability rate may not be lower than the rate expressly indicated in Part B. The availability rate set out herein constitutes a best-efforts obligation incumbent on SKILDER.

SKILDER will regularly provide corrections and updates to the Platform at any time in order to improve its features.

4.4. SUPPORT

If the Client identifies an Issue concerning the operation of the Platform, the Client may contact SKILDER's support service under the conditions set out in Part B of this Agreement.

SKILDER's support service, through the Client's designated contact person, will assess the level of the Issue in question, provided that the problems encountered by the Client are described sufficiently. If such description is insufficient, SKILDER shall be entitled to request additional information from the Client.

SKILDER provides support to the Client during the hours, days, and under the conditions set out in Part B of this Agreement. These hours may be changed unilaterally by SKILDER upon simple notice to the Client. Only Users previously identified by the Client and designated as such to SKILDER may request support.

SKILDER's response times are as follows:

• Blocking Issue: 24 business hours
• Major Issue: 36 business hours
• Minor Issue: 48 business hours

SKILDER's correction or workaround times are as follows and run from receipt of the acknowledgment of receipt sent by SKILDER to each Manager in respect of the processing of their request:

• Blocking Issue: 24 business hours
• Major Issue: 5 business days
• Minor Issue: 60 business days

The response, correction, or workaround times set out herein constitute a best-efforts obligation incumbent on SKILDER, which will use its best efforts to intervene and remedy the Issues as quickly as possible but cannot have its liability engaged on that basis.

5. ADDITIONAL SERVICES

The Additional Services indicated in Part B, as well as any other service and/or intervention not expressly included under the Agreement, are expressly subject to additional invoicing.

These Additional Services may be performed by SKILDER following the Client's agreement, based on a specific quotation. Where applicable, if such services are acquired by the Client upon signing the Agreement, they will be specified as such in Part B.

6. PLATFORM USE TERMS

To access the Platform, the Client must ensure that:

• Its User(s) have defined the Users' access rights;
• Its Users have created the necessary credentials for the End Users and have provided those End Users with their login credentials.

7. SKILDER'S COMMITMENTS

As a professional, SKILDER undertakes to work with the Client and to exercise all care and diligence necessary to provide the Associated Services and Additional Services with due quality, in accordance with industry standards and applicable laws.

SKILDER undertakes to provide the Client with any information necessary for the proper performance of the Agreement, to advise and inform it throughout the performance of the Agreement regarding the use of the Platform.

In the event that one or more major features of the Platform are discontinued, SKILDER undertakes to inform the Client at least three (3) months before the discontinuation of said major feature(s).

Throughout the term of the Agreement and in accordance with industry standards and best practices, SKILDER undertakes to assign to the provision of the Platform and the performance of the Associated Services and Additional Services staff who are: (a) competent and experienced and (b) in sufficient numbers to ensure proper performance of the Agreement.

SKILDER’s staff shall at all times remain under SKILDER’s hierarchical and disciplinary authority, and SKILDER shall, at all times during the performance of the Associated Services and Additional Services, in its capacity as employer, be responsible for the administrative, accounting and social management of its staff, including when SKILDER’s staff are on the Client’s premises.

SKILDER guarantees that the Associated Services and Additional Services will be performed only by employees hired in accordance with Articles L 3243-1, L 3243-2, L 3243-4, L 1221-13, L 1221-15 and L 1221-10 of the French Labour Code and in compliance with Articles L 8221-1 and D 8221-5 of the same Code. SKILDER further declares that all members of its staff assigned to the performance of the Associated and Additional Services are duly registered with the social security authorities.

SKILDER undertakes to provide, before signing the Agreement, and then to renew every six (6) months:

• A certificate of registration in the Trade and Companies Register (K or Kbis);
• A certificate of compliance issued by URSSAF, stating the number of employees and the total remuneration declared by SKILDER at its latest due date. This document must also certify SKILDER’s compliance with its obligations to declare and pay social charges;
• Where applicable, the list of foreign employees subject to work authorization (hire date, nationality, type and authentication number).

8. CLIENT COMMITMENTS

The Client undertakes to maintain throughout the Term of the Agreement a technical configuration compatible with the Platform and to comply with and update this configuration in accordance with the recommendations provided by SKILDER during performance of the Agreement.

The Client undertakes to implement a daily backup solution for its Data, in addition to the backup arranged by SKILDER.

The Client alone is responsible for the security of its staff’s individual workstations enabling access to the Platform. If it becomes aware of any fraudulent intrusion into its information system, intranet network and/or any individual workstation, it shall immediately notify SKILDER in writing. The Client undertakes to allow remote takeover of its Users’ profiles within the Platform as part of the Associated Services provided for in Articles 4.2 and 4.3 of this Agreement.

As a general rule, the Client undertakes to cooperate with SKILDER and to provide it with any information necessary for proper performance of the Agreement. However, the Parties agree that, since the Client cannot know which information is necessary, only information requested in writing by SKILDER shall be communicated, subject to confidentiality being respected. The Client shall not be held liable for failing to communicate information that had not been requested by SKILDER.

The Client alone is responsible for its choice of internet access provider enabling access to the Platform; SKILDER gives no guarantee in this respect and cannot be held liable for interruptions, unavailability, errors or bugs occurring on the Platform solely for that reason.

The Client declares and acknowledges that the purpose of the Login Credentials is to protect the Data, namely its confidentiality and integrity. It shall therefore ensure that passwords are regularly updated in accordance with current standards. The Client alone is responsible for use of the Platform in compliance with applicable French and/or foreign regulations and shall in no event seek to hold SKILDER liable in this respect.

The Client shall use the Platform in accordance with the Agreement and any written instruction that SKILDER may issue, in particular in the event a security vulnerability is identified.

9. TERM – RENEWAL

9.1. ENTRY INTO FORCE OF THE AGREEMENT

The Agreement shall take effect as of the Effective Date for the Term of the Agreement.

9.2. RENEWAL OF THE SUBSCRIPTION

At the end of the Subscription Term as initially subscribed, the Subscription shall automatically renew for successive periods of twelve (12) months, unless the Agreement is terminated by the Client at least three (3) months before each renewal date, by registered letter or by email to the address shown at the top of this document with acknowledgment of receipt.

10. TERMINATION – EFFECTS

10.1. TERMINATION

If either Party seriously breaches any of its essential obligations under the Agreement defined in Articles 3, 8, 10, 12, 13, 14, 15, 16.9, the other Party may, thirty (30) days after formal notice by registered letter with acknowledgment of receipt has remained without effect, have the Agreement automatically terminated, without further formality.

If the effects of a force majeure event, as defined in Article 13.1 below, were to last longer than thirty (30) days, the Agreement may be automatically terminated at the request of either Party after written notice by registered letter with acknowledgment of receipt, without any right to compensation.

10.2. EFFECTS OF TERMINATION

The Client undertakes, on the effective date of termination, to immediately cease all use of the Platform.

Termination of the Agreement for any reason whatsoever shall require the Client to pay all sums due to SKILDER in accordance with the terms of the Agreement.

SKILDER undertakes to provide the Client, within eight (8) days following termination of the Agreement for any reason whatsoever, with a copy of all the Client’s Data in a standard computer format that can be read without difficulty in an equivalent environment. This return shall be recorded in a report signed by the Parties. In any event, SKILDER shall destroy copies of the Client’s Data held in its computer systems within twenty-four (24) months following termination of the Agreement.

Beyond that period, SKILDER undertakes to keep no copy of the Client’s Data or its Users’ Data on its hosting servers or those of any subcontractors.

The Client shall actively cooperate with SKILDER in order to facilitate data recovery. SKILDER shall ensure that the Client can continue to use the Data, without interruption, directly or with the assistance of another service provider.

Any assistance other than that described above that is requested by the Client from SKILDER shall be subject to additional billing.

11. PRICE AND PAYMENT TERMS

11.1. PRICE – PRICE CHANGES

The prices are set out in Part B and are invoiced as indicated.

Any Additional Services ordered by the Client are either subject to a quote from SKILDER duly accepted by the Client and/or a purchase order from the Client reproducing the details of SKILDER’s quote, or are described in Part B and are subject to the price defined therein.

All prices set out in Part B are automatically revised on the anniversary date of the Agreement (that is, every twelve (12) months from the Effective Date) according to the following formula:

P = Po x (S/So)

Where:

• P: revised pre-tax price
• Po: initial pre-tax price as set out in the Agreement
• S: Syntec index published on the revision date
• So: Syntec index for the month in which the Agreement was signed

11.2. PAYMENT TERMS

Any invoice under this Agreement is payable within thirty (30) days from the invoice date.

Failure to pay an invoice that is not justified may result in suspension of the Subscription. Any amount not paid by its due date shall automatically bear late-payment interest equal to the ECB refinancing rate plus ten (10) points, as well as a fixed fee of forty (40) euros due for recovery costs. Such interest runs from the due date until full payment.

12. INTELLECTUAL PROPERTY

12.1. PLATFORM USE TERMS

Except where the law prohibits such a restriction, the Client undertakes to use the Platform only for its business-related needs.

In this context, the Client limits its use to:

• Users;
• The number of accesses in accordance with the Agreement and as indicated in Part B (if applicable);
• Excluding all third parties;
• Excluding any commercial use or exploitation on behalf of third parties and/or any distribution of the Platform to third parties, whether free of charge or for consideration.

The Client undertakes to ensure that only Users have access to the Platform.

The Client is prohibited from assigning, providing, lending, renting, distributing the Platform, granting sublicenses, leases or other rights therein, or more generally communicating all or part of the Platform to any third party without SKILDER’s prior written consent. The Client undertakes not to use the Platform for purposes contrary to the law and/or infringing third-party rights.

In no event may the Client and the Users, directly or with the assistance of a third party, without SKILDER’s prior written consent, except under the conditions strictly provided for by law:

• Modify the Platform and its features;
• Reproduce the Platform and its features;
• Distribute the Platform for commercial purposes;
• Arrange, adapt, translate the Platform and its features;
• Market the Platform and its features;
• Correct the Platform and its features;
• Decompile the Platform.

Any breach of the provisions of this article constitutes a breach of the Agreement.

12.2. SKILDER’S INTELLECTUAL PROPERTY RIGHTS

SKILDER declares that it is the author of the Platform and of all the elements comprising it, including the content and graphic creations, and more generally that it holds all related intellectual property rights (hereinafter the “Protected Elements”).

The trademarks and logos used by SKILDER are an integral part of the Protected Elements. SKILDER therefore owns, and continues to own, the property rights relating to the Protected Elements.

SKILDER grants the Client a limited, personal, non-transferable and non-exclusive license to use the Protected Elements, under the conditions set forth herein. Any other use is expressly excluded.

The content made available to the Client under the Subscription may be used only for that purpose, and under the Client’s sole responsibility. The Client may under no circumstances:

• Modify the Protected Elements;
• Reproduce the Protected Elements;
• Arrange, adapt, or translate all or part of the Protected Elements;
• Commercialize the Protected Elements;
• Correct the Protected Elements;
• Decompile the Protected Elements;
• Create derivative works from the Protected Elements;
• Whether directly or with the assistance of a third party, without SKILDER’s prior written consent, except under the conditions strictly provided by law.

12.3. CLIENT INTELLECTUAL PROPERTY RIGHTS

SKILDER transfers to the Client, who accepts it, all proprietary rights, in particular the right of reproduction, representation, adaptation, translation and modification, in whole or in part, attached to:

• The custom-made skills reference framework created by SKILDER at the Client’s request during the performance of the relevant Additional Service, if applicable;
• The End User evaluation report referred to in Part B.

Hereinafter the “Deliverable(s)”.

This transfer being made on a non-exclusive basis, SKILDER retaining the right to reuse at its discretion said framework and/or any End User evaluation report.

SKILDER guarantees the Client the free use of the Deliverable.

This transfer is granted without any territorial limitation and for the duration of copyright as currently defined and extended in the future by applicable laws and regulations. This transfer is granted on any medium, by any means and/or supports known or unknown as of today, in all languages, in as many copies as necessary and for all purposes.

This transfer is granted in consideration of payment of the price of the relevant Additional Service and/or Subscription Price, which includes the price of the transfer, SKILDER expressly waiving any proportional remuneration due to the absence of commercial exploitation as such of the Deliverable(s).

12.4. INFRINGEMENT

SKILDER guarantees the Client peaceful enjoyment, both through its own acts and through the acts of third parties, of the Protected Elements.

Accordingly, SKILDER shall personally handle any claim for infringement or unfair competition brought by a third party against the Client and based on the Client’s use of the Protected Elements and, more generally, of the Platform, provided that:

• The Client informed SKILDER within eight (8) days of receiving such claim;
• The Client used the Protected Elements in compliance with this Agreement;
• The Client entrusts SKILDER exclusively with the management of this dispute;
• The Client provides SKILDER with reasonable assistance at its own expense in resolving this dispute.

With respect to this infringement action, SKILDER’s liability is limited to the following, at SKILDER’s discretion, provided that such limitation is enforceable under the applicable law:

• Replacement or modification, at no cost to the Client, of the infringing elements among the Protected Elements, allowing continued use of the Platform and its features;
• Obtaining from the third party the right for the Client to continue using the Protected Elements at no cost to the Client;
• Immediate termination of this Agreement, without the Client being entitled to any reimbursement or being required to pay any other amount to SKILDER for the current annual period; in such case, SKILDER shall promptly implement the reversibility provided for in Article 10.2 of the Agreement, at no cost to the Client.

13. LIABILITY – WARRANTY – INSURANCE

13.1. LIABILITY – WARRANTY

SKILDER warrants that the Platform conforms to the specifications described in its quotation and, where applicable, in the documentation provided to the Client. This warranty is valid for a period of three (3) months from the Effective Date.

This warranty shall not apply where the Client has failed to comply with the Platform’s terms of use. In particular, SKILDER makes no warranty whatsoever as to the suitability of the Platform for the Client’s specific needs, the absence of bugs in the Platform, or the absence of failures or malfunctions due to interruptions or poor-quality communication networks enabling the connection between the Platform and the Client’s information system.

SKILDER does not warrant the quality or accuracy of the Data generated by the Platform and is bound only by a best-efforts obligation in this respect, given that the generated Data depends closely on the input Data provided by the Client when using the Platform. Accordingly, the Client uses the Platform, as well as the Data generated by use of the Platform, at its sole risk, with no recourse against SKILDER.

SKILDER’s liability under this Agreement is limited to the total amount paid by the Client under the Agreement in the twelve (12) months preceding the occurrence of the damage. This limitation does not apply in the event of personal injury or infringement of the Client’s intellectual property rights.

SKILDER’s liability shall in no event be sought in the event of:

• Any modification of all or part of the Platform or of the information accessible via the Platform not performed by SKILDER or by one of the approved providers designated by SKILDER;
• Use of all or part of the Platform when SKILDER, following a difficulty or for any other reason whatsoever, had recommended suspending use of the Platform;
• Use of the Platform in an environment not compliant with the requirements of the documentation, or in connection with third-party programs or data not expressly approved by SKILDER;
• Any damage resulting from a fault or negligence of the Client, or that the Client could have avoided by seeking SKILDER’s advice;
• Any damage resulting from a fault or negligence of a third party;
• Use in connection with the Platform of programs not supplied or approved by SKILDER and likely to affect the Platform or the Client’s Data.

Neither Party shall be liable for any delay or failure to perform any obligation under this Agreement resulting from an event of force majeure as defined by French law and case law. In this respect, the COVID-19 epidemic and its consequences are expressly recognized as constituting a force majeure event.

It is expressly agreed between the Parties that failures, malfunctions, interruptions, or poor communication network quality constitute a force majeure event beyond the control of either Party and meet the criterion of unpredictability.

SKILDER shall not be liable for indirect and/or intangible damages suffered by the Client as a result of use of the Platform, as this term is defined by the consistent case law of the French courts, and in particular for any total or partial loss or destruction of the Client’s Data, except in the event of a breach of its legal obligations set out in Article 15.

13.2. INSURANCE

SKILDER undertakes to take out and maintain in force throughout the Term of the Agreement liability insurance with a first-class, demonstrably solvent insurer. SKILDER has taken out professional liability insurance covering, without limitation, all of its activities and the risks of errors and omissions, bodily injury, property damage, and contractual liability.

14. CONFIDENTIALITY

The Parties undertake to keep strictly confidential all Confidential Information exchanged in connection with the Agreement, regardless of the means by which such Confidential Information is transmitted, and in particular to:

• Not communicate or disclose the Confidential Information, directly or indirectly, to any third party whatsoever;
• Communicate Confidential Information originating from the disclosing Party only to those members of its staff who need to know it for the performance of the Agreement, after informing them of their obligations arising from the Agreement;
• Reproduce the Confidential Information and/or store it on any electronic medium only to the extent strictly necessary to achieve this purpose;
• Not file any patent application or any other industrial or intellectual property right including such Confidential Information;
• Adopt and maintain all necessary measures to prevent unauthorized access to the Disclosing Party’s Confidential Information and to ensure that it is treated with the same degree of protection and care as its own confidential information, and in particular to take all preventive and protective measures against theft, disclosure, copying or unauthorized reproduction of the Disclosing Party’s Confidential Information.

By way of exception to the foregoing, the Parties may be required to disclose any Confidential Information pursuant to law, or by governmental, administrative or judicial decision. In such case, the requested Party shall immediately and without delay inform the other Party of the request so as to allow that Party to provide its prior assistance with the disclosure of any confidential information.

The confidentiality obligations under this Agreement shall not apply to information for which the receiving Party can prove:

• That it was in the public domain at the time of disclosure, other than through a breach of this Agreement;
• That it was in its possession before the signing of this Agreement;
• That it was disclosed to it by a third party not bound by a confidentiality obligation toward the other Party;
• That its disclosure was expressly authorized by the other Party.

In the event of subcontracting, and provided that the Client makes a prior request:

• SKILDER shall provide the Client with the name and contact details of the subcontractor(s);
• The subcontractor(s) shall mandatorily and prior to any commencement of performance sign a confidentiality undertaking containing the same obligations as those set out in this article;
• All obligations imposed on SKILDER under the Agreement shall apply without restriction to its subcontractors.

The receiving Party acknowledges that the Confidential Information originating from the Disclosing Party remains the property of the latter, and undertakes to return or destroy, at the first request of the Disclosing Party or at the latest upon expiry of this Agreement, all Confidential Information, including all copies, reproductions, notes, documents and media in its possession that remain the exclusive property of the Disclosing Party.

The provisions of this article “Confidentiality” shall remain in force for the duration of the Agreement and for five (5) years after its expiration or termination for any reason whatsoever.

15. PERSONAL DATA

For the purposes of this clause, the terms “Controller”, “Processor”, “Personal Data”, “Processing” shall have the meaning given to those terms in Regulation (EU) 2016/79 of the European Parliament and of the Council of 27 April 2016 repealing Directive 95/46/EC, applicable as of 25 May 2018 (hereinafter the “Regulation”).

SKILDER acknowledges that all Personal Data disclosed under and in connection with the Agreement is subject to compliance with the regulations applicable in France and in the European Union in the area of Personal Data protection.

15.1. COMPLIANCE WITH THE APPLICABLE LEGISLATION ON PERSONAL DATA PROTECTION

Each Party undertakes, for the processing operations it carries out for its own needs under and in connection with the Agreement, to comply with all obligations arising from the application of any applicable legislation relating to the protection of personal data and privacy that may apply to the Personal Data processed under this Agreement, including the Regulation, the obligations arising from the application of French Law No. 78-17 of 6 January 1978, as amended, and any updates thereto, the texts adopted within the European Union and local laws and any updates thereto, as well as the instructions, policies or codes of conduct notified by the Client with regard to the entire “Applicable Personal Data Regulations”.

The Parties undertake to actively cooperate in order to enable the completion of the declaration formalities incumbent upon them and, where applicable, to obtain the authorizations of the competent supervisory authorities. They shall, where applicable, inform the data subjects concerned by the processing of Personal Data. The Parties shall refrain from any action likely to place the other Party in breach of the applicable legislation on Personal Data protection.

SKILDER, as a professional in its sector, undertakes to advise and cooperate with the Client solely with regard to IT matters related to the Processing means. It shall also cooperate with regard to the management of requests from data subjects regarding the Processing for the exercise of their rights and the carrying out of any impact assessment concerning compliance with the obligations incumbent on the Client under the Applicable Personal Data Regulations, which the Client acknowledges. In the event of an inspection, SKILDER undertakes to provide the Client with any information it may need or that may prove necessary.

15.2. PERSONAL DATA PROCESSING

Within the framework of the Agreement, the Parties agree that the Client and the Client’s Affiliated Companies are the Controllers and that SKILDER is the Processor with regard to the Applicable Personal Data Regulations. SKILDER will be required to process Personal Data in the context of the Processing operations described in Annex 1. The Client may modify the description of such Processing operations at any time and shall inform SKILDER thereof.

15.3. PROCESSING CARRIED OUT BY SKILDER

SKILDER undertakes to:

• Act only on the Client’s instructions and accordingly process and consult Personal Data or the Client’s files only in accordance with the Client’s documented instructions in connection with the performance of the services it provides hereunder and refrain from any other use of Personal Data, including for commercial purposes;
• Not use, allow or facilitate use by third parties, Subprocessors or any person acting under the authority and/or on behalf of SKILDER, for purposes other than those defined in article 2 in Annex 1 of this Agreement;
• Ensure that all persons having access to and/or processing Personal Data under the Agreement are subject to a confidentiality obligation and have received the training necessary for Processing Personal Data;
• Inform the Client of any action and/or measure initiated by the supervisory authority relating to the Processing of Personal Data carried out in the course of its activity, and immediately notify the Client of any modification or change that may affect the Processing of Personal Data under the Agreement;
• Immediately inform the Client if, to SKILDER’s knowledge, an instruction constitutes a breach of the Applicable Personal Data Regulations or is not feasible from a technical standpoint;
• Implement and maintain throughout the term of the Agreement the technical measures and appropriate procedures customary in its field of activity to ensure that all of the Client’s Personal Data processed under the Agreement are properly protected, having regard to their nature and the risks presented by the Processing, against alteration, loss, accidental or unlawful destruction, disclosure or unauthorized access, or any other unlawful form of Processing, in light of the state of the art, best practices and the highest technical standards. SKILDER undertakes, in the event of any change to measures or procedures aimed at ensuring the security and confidentiality of Personal Data, to replace them with measures of equivalent or superior performance. No change may lead to a reduction in the level of security.

As a result, SKILDER shall not:

• Consult and/or process Personal Data other than that necessary to implement the Processing provided for under this Agreement, even if access to such Data is strictly and technically possible;
• Disclose, in any form whatsoever, all or part of the Personal Data processed to third parties, except for its Sub-processors who need it for the performance of all or part of the Agreement.

If SKILDER uses the Personal Data for other purposes, transfers and/or uses it in a manner not compliant with that provided for in the Agreement or communicated by the Client, SKILDER shall also be deemed the Controller and personally liable for any breaches it may commit.

15.4. COMMUNICATION OF THE CLIENT'S PERSONAL DATA TO THIRD PARTIES AND SUB-PROCESSORS

The Personal Data processed in performance of the Agreement may not be disclosed to any third party, including SKILDER's Sub-processors, except in the cases provided for in the Agreement or those provided for by a legal or regulatory provision.

Any subcontracting operation involving Processing must have been previously and specifically authorized in writing by the Client. The list of Sub-processors is set out in Annex 1 and must be kept up to date by SKILDER throughout the Term of the Agreement. This list must indicate the name, address and legal form of the Sub-processor, the scope of its involvement under the Agreement, and the location of the Personal Data Processing sites (hosting, maintenance, administration, support, etc.).

SKILDER will put in place, as soon as they are selected, procedures ensuring that the third parties it authorizes to access the Client's Personal Data, including its Sub-processors, comply with and preserve the confidentiality and security of the Personal Data. To that end, SKILDER undertakes to impose on its service providers or Sub-processors all necessary obligations, at least equivalent to those provided for in this article, and warrants compliance by such provider(s) or Sub-processor(s) with their obligations.

The Client also has the right to obtain from SKILDER a copy of the contract with its Sub-processor and, failing that, a description of the essential terms of the contract, including the implementation of obligations relating to the protection of Personal Data.

Where Sub-processors do not fulfill their obligations regarding the protection of Personal Data, SKILDER remains fully liable to the Client for the Sub-processors' performance of their obligations.

15.5. TRANSFERS

SKILDER undertakes to use exclusively Personal Data Processing means located in the territory of a country that is a member of the European Economic Area and/or in a country recognized by the European Commission as providing an adequate level of protection.

SKILDER undertakes not to disclose or transfer Personal Data, even for transit purposes or by means of remote access, to a Sub-processor operating in a country located outside the European Economic Area or not recognized by the European Commission as providing an adequate level of protection, and to ensure that its Sub-processors and all persons acting under its authority or on its behalf do the same.

Subject to the Client's prior express written consent and strictly to the extent necessary for the performance of the services under the Agreement, SKILDER is authorized to carry out transfers of Personal Data outside the European Economic Area, only if SKILDER, and where applicable SKILDER's Sub-processors, have first entered into a data transfer agreement with the Client in the form and under the terms provided for in the European Commission Decision of 5 February 2010 on standard contractual clauses for the transfer of Personal Data to processors established in third countries (hereinafter the "Standard Clauses"). SKILDER warrants the signature and compliance with the Standard Clauses by its own Sub-processors. If required by local law or the supervisory authority, the transfer of Personal Data must be subject to prior authorization by the competent supervisory authority, and fulfillment of this latter condition shall be deemed a suspensive condition to the performance of the services concerned.

15.6. RECTIFICATION, DELETION, AND RETENTION OF THE CLIENT'S PERSONAL DATA BY THE SERVICE PROVIDER

During the Term of the Agreement and subject to a written request from the Client to that effect, SKILDER undertakes to rectify, delete, return or destroy, according to procedures and methods agreed where applicable in advance between the Parties, the Client's Personal Data processed on the Client's behalf under this Agreement, except where mandatory provisions to the contrary arise from Community law or from the law of a Member State of the European Union applicable to the Processing and have been previously communicated by SKILDER to the Client.

If a Data Subject were to contact SKILDER directly to exercise their rights of access, rectification, deletion and/or objection, SKILDER undertakes to forward that request directly to the Client as soon as it becomes aware of it, subject to applicable law.

In any event, upon termination of the Agreement for any reason whatsoever, SKILDER undertakes to destroy, or where applicable in accordance with the Client's instructions, return to the Client the communicated Personal Data and/or the media containing it, and to provide proof thereof to the Client by means of a destruction certificate.

This article shall survive termination or expiration of the Agreement for any reason whatsoever.

15.7. AUDIT

The Client reserves the right to carry out any checks it deems useful to verify SKILDER's compliance with its obligations under this article, it being specified that the security and confidentiality obligation attached to Personal Data is considered an essential obligation of this Agreement, non-compliance with which may result in immediate termination of the Agreement for breach.

15.8. PERSONAL DATA BREACH

SKILDER undertakes to notify the Client as soon as possible after becoming aware of, and in any event within a maximum period of seventy-two (72) hours from that date, of any confirmed or suspected breach of Personal Data or any security breach resulting, accidentally or unlawfully, in the destruction, loss, alteration, unauthorized disclosure of transmitted, stored or otherwise processed Personal Data, or unauthorized access to such Data.

This notification must be sent to the designated contact person by telephone and email, and then confirmed by registered letter with acknowledgment of receipt. SKILDER undertakes to carry out all necessary investigations into the above-mentioned breaches of the protection rules and/or any threats in order to remedy such breaches and/or threats and prevent them from recurring in the future.

SKILDER undertakes to remedy such breaches and/or threats as quickly as possible and to minimize the impact of such breaches and/or threats on the Data Subjects.

SKILDER undertakes to inform the Client by means of a written report describing the nature and consequences of the Personal Data breach, the corrective actions implemented or proposed to remedy such breaches and/or threats, reduce the impact on the Data Subjects, as well as the measures adopted so that such breaches and/or threats do not recur. Where possible, SKILDER will specify the number of persons likely to be affected by the breach in question.

SKILDER states that it understands that any breach of the Applicable Personal Data Regulations may impose obligations on the Client, in particular notification to the Data Subjects and to the supervisory authorities. SKILDER undertakes to cooperate with the Client and assist it in meeting its obligations. SKILDER shall indemnify the Client against the consequences of any claims from Data Subjects arising from a breach of the Applicable Personal Data Regulations attributable to SKILDER.

16. MISCELLANEOUS CLAUSES

16.1. REFERENCES

SKILDER may refer to the Client's corporate name, trademark and/or logo as a commercial reference, provided that it uses the trademarks and logos as communicated by the Client.

16.2. INDEPENDENCE OF THE PARTIES

The Parties shall at all times act as independent parties in performing the obligations under this Agreement. The Agreement does not create any partnership, joint venture, or joint and several liability between the Parties. Neither Party may undertake any commitment or incur any costs or expenses on behalf of the other.

16.3. NOTICES

Any notice, formal notice, or any other communication required under the Agreement (a “Notice”) must be made in writing and sent to the Client’s Notice address set out in Part A and delivered: (a) by hand; (b) by registered letter; (c) by courier. A Notice shall be deemed received: if delivered by hand, on the date of delivery; if sent by registered letter, five (5) business days after posting; if sent by courier, one (1) business day after delivery to the courier.

16.4. AMENDMENTS

This Agreement may be amended only by a written amendment signed by the persons authorized to represent the Parties.

16.5. TOLERANCE – WAIVER

The fact that a Party does not, at any given time, rely on any provision of this Agreement and/or tolerates a breach by the other Party of any of the obligations set out in this Agreement cannot be interpreted as a waiver by that Party of its right to rely later on any of those provisions.

16.6. SEVERABILITY

The invalidity or unenforceability of any provision of the Agreement shall not affect the binding force or scope of the other provisions of the Agreement. In addition, the Parties undertake, where applicable, to amend the invalid or obsolete provision by narrowing it, or, if that is not possible, to negotiate to replace it with a valid provision as close as possible to the Parties’ original intent.

16.7. HEADINGS

The headings of the clauses of the Agreement are for reference only and do not affect the meaning or scope of the terms and conditions of this Agreement.

16.8. UNFORESEEABLE CIRCUMSTANCES

If a change in circumstances unforeseeable at the time the Agreement was entered into makes performance excessively onerous for one Party that had not agreed to assume the risk, that Party may request renegotiation of the Agreement with its counterparty. It shall continue to perform its obligations during the renegotiation. In the event of refusal or failure of the renegotiation, the Parties may jointly ask the judge to adapt the Agreement. Failing that, a Party may ask the judge to terminate it, on the date and under the conditions set by the judge.

16.9. GOVERNING LAW – JURISDICTION

This Agreement is governed by French law. The Parties shall use their best efforts to settle amicably any dispute that may arise from the interpretation, application and/or performance of this Agreement. If such a solution cannot be reached, the Parties hereby agree that the dispute shall be submitted to the jurisdiction of the courts of Lyon.

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