21FACTORY’s GENERAL TERMS OF DIGITAL SERVICE FOR EXPERIENCELAB

ARTICLE 1 – SCOPE AND PURPOSE

The present general terms of digital service (hereafter the “ToS”) govern as of right any precontractual and contractual relationship between 21FACTORY, a simplified joint-stock company registered with the Bordeaux Trade and Companies Register under number 921 975 462, whose registered office is located at rue d’Armagnac, 33800 Bordeaux, France, (hereafter “21FACTORY”) and any professional client (hereafter the “CLIENT”), for the provision of services of implementation and use of the 21FACTORY application.

21FACTORY and the CLIENT are hereinafter referred to together as the “Parties” and individually as a “Party”.

21FACTORY systematically provides a commercial proposal and its ToS to any CLIENT who wishes to order the services of implementation and use of the 21FACTORY application.

The formalization of the CLIENT’s consent to 21FACTORY’s commercial proposal arises in particular from the provision, to 21FACTORY, of the said proposal completed with any specific mention expressing its consent or from the signature of a person authorized to enter into legally binding commitments on behalf of the CLIENT or from an order from the CLIENT making a reference to or reproducing the content of the said proposal. The formalization of the CLIENT’s consent to the said commercial proposal implies full acceptance of the ToS and forms the contract with 21FACTORY (hereafter the “Contract”).

The purpose of the Contract is the provision of Services hereafter defined, by 21FACTORY, for the benefit of the CLIENT, in return for payment of the corresponding remuneration by the latter, under the terms and conditions set out in the following provisions.

The Contract consists of the following contractual documents presented in order of decreasing legal value:

• the Proposal as defined hereafter;
• the present ToS;
• any appendices to the present ToS wich may be listed in the Proposal.

In case of contradiction between provisions contained in two different documents, the provisions in the document of higher legal value shall prevail.

The Contract constitutes the entirety of the existing commitments between the Parties regarding its subject. It supersedes all previous oral or written commitments relating to the same subject, as well as any previous provisions that may apply to this subject, particularly the CLIENT’s terms of purchase.

ARTICLE 2 – DEFINITIONS

In the Contract, the words or phrases beginning with a capital letter, written in the singular or plural, shall have the following meanings:

Anomaly	refers to any malfunction of the Application, understood as any difference between the observed operation and the normal operation of the Application, where applicable, resulting from a bug or other cause directly attributable to the Application, reproducible and documented by the CLIENT, which makes it impossible or difficult to use the Application or reflected in an incorrect result from correct data.
Data	refers to the CLIENT’s digital data integrated by the CLIENT in the database instance dedicated to it, for the purposes of its processing by the Application.
Proposal	refers to the document issued by 21FACTORY which specifies the features of the 21FACTORY SaaS Application and the scope of the Services chosen by the CLIENT according to the offers available, as well as the annual subscription fee, the duration of the Contract, the CLIENT’s instructions as regards the data center location and any other special conditions agreed with the CLIENT.
Services	refers to all of the services described in Article 4.
Application	refers to the features of the 21FACTORY Application implemented for the CLIENT, executed with Salesforce and administrated through the CLIENT’s Salesforce account.
Users	refers to all natural persons who are authorised by the CLIENT to use the Application.

ARTICLE 3 – TERM

The Contract shall enter into force upon its signing by the second party for a period of one (1) year, unless otherwise provided in the Proposal and agreed by the Client.

The term of the Contract shall then be automatically extended by successive periods of one (1) year, unless the extension is terminated, by either Party, by registered letter with acknowledgement of receipt, giving at least three (3) months’ notice before the expiry of the current contractual period. 

ARTICLE 4 – SEQUENCING OF SERVICES

4.1 – SET UP OF THE APPLICATION

The 21FACTORY Application can be installed directly by Salesforce Support team or manually by 21FACTORY Support team in the Salesforce Marketing Cloud tenant of the CLIENT.

4.2 – PROVISION OF THE APPLICATION

21FACTORY provides the Application to the CLIENT remotely, via electronic communication networks, as an essential requirement of the Contract.

The Users access the Application online through their means of authentication on the CLIENT’s Salesforce account. 

The CLIENT and its Users use the Application within the limits of the use rights granted by 21FACTORY under Article 7.2.

4.3 – PROVISION OF SUPPORT AND CORRECTIVE MAINTENANCE

21FACTORY provides the CLIENT with a corrective maintenance and support service to assist with the use of the Application and to deal with Anomalies reported by the CLIENT. 

The support service is available Monday to Friday, on working days, from eight (8) a.m. to twelve (12) noon and from two (2) p.m. to six (6) p.m., Paris time (GMT +1), in English and French, via the customer service and support ticket management platform accessible through a link on 21FACTORY’s website.

The CLIENT can make any request for assistance in the use and report any Anomaly via the customer service and support ticket management platform. 

The CLIENT undertakes to ensure that any requests for assistance in the use and reports of any Anomalies are only made by the Users.

21FACTORY undertakes to take into account, via its support service, any request for assistance with the use of the Application and any report of an Anomaly, during the above opening period, by sending the CLIENT an email confirming its support within one (1) business day.

The CLIENT will seek to specify, in any Anomaly report, the description of the Anomaly (particularly the action performed, the expected result and the result obtained), the date, time and conditions of its occurrence and the means of reproducing it. 

21FACTORY undertakes to answer to the CLIENT’s request for assistance with the use of the Application or to resolve any Anomaly as soon as possible.

21FACTORY will be discharged from all obligations under its support and corrective maintenance service in case of an anomaly of the Application not constituting an Anomaly, particularly in the following cases:

• an unreproducible or undocumented anomaly of the Application;
• an anomaly resulting from use of the Application not in compliance with its intended purpose or the provisions of the Contract, in particular those relating to the CLIENT’s use rights;
• an anomaly resulting from use of the Application with a browser, data format, software or operating system not compatible;
• an anomaly resulting from an unauthorised intervention, modification or correction on the Application by the CLIENT, a User or a third party;
• an anomaly not attributable to the Application and resulting in particular from a failure of the electronic communication networks or the Application’s operating environment.

In the event of a CLIENT request not included in the scope of 21FACTORY’s support and corrective maintenance service, 21FACTORY may nevertheless intervene at the request of the CLIENT, based on its current rates or on a commercial proposal subject to the CLIENT’s acceptance.

4.4 – DATA STORAGE AND BACKUP

21FACTORY provides hosting and backup of the CLIENT’s Data that is processed using the Application.

The data is hosted and saved on the servers of a third party hosting provider, which are located either on the territory of the European Union or on the territory of the United States of America, according to the CLIENT’s instructions as specified in the Proposal. The CLIENT is entirely responsible for his choice and releases 21FACTORY for any liability in this regard.

However, 21FACTORY draws the CLIENT’s attention to the fact that the Application is not an Application dedicated to hosting and backing up data and should not be used as such. Therefore, the hosting and backup of Data under the Contract does not exempt the CLIENT from making and keeping a backup of the Data that it integrates into the Application on its computer system.

The confidentiality of the Data is ensured by access control to the database containing it, through usernames and passwords, in such a way that only the employees of 21FACTORY in charge of the supervision and administration of the operating environment of the Application with a username and password can access it. Moreover, only Users can log in to Application via their means of authentication on the CLIENT’s Salesforce account.

The CLIENT is informed and acknowledges that 21FACTORY has no control over the electronic communication networks, including the Internet, through which the Application is accessible, so that it can in no way be held responsible for any damage for which the generating event comes from such networks. The CLIENT is also informed that, in the current state of the art, no security measure can exclude all risk of loss, alteration, misappropriation or interception of data circulating on such networks, nor any risk of intrusion on any infrastructure connected to such networks and risk of breach of the integrity, confidentiality and, more generally, the security of the data hosted thereon. Under these conditions, 21FACTORY does not guarantee the absence of any breach of integrity, confidentiality and, more generally, the security of the CLIENT’s data.

ARTICLE 5 – MAINTENANCE OF THE APPLICATION

In addition to the corrective maintenance of the Anomalies reported by the CLIENT, 21FACTORY is responsible for the preventive, corrective and evolutionary maintenance of the Application. As such, 21FACTORY is free to carry out any maintenance operations to prevent potential anomalies, develop and install patches to correct anomalies it finds and develop and install updates and new releases of the Application.

21FACTORY may install approximatively three new releases per year.

21FACTORY may suspend access to the Application for the purposes of administration or maintenance of the servers, the Application’s operating environment or the Application itself. In the case of scheduled interventions, 21FACTORY will inform the CLIENT beforehand and will carry out its interventions in the maintenance windows. In the case of unscheduled urgent interventions, 21FACTORY will endeavour to inform the CLIENT as soon as possible.

ARTICLE 6 – OBLIGATIONS OF THE PARTIES

6.1 – OBLIGATIONS OF 21FACTORY

21FACTORY undertakes to provide the Services defined in Article 4 with the greatest care, in accordance with the rules of the art in the field of computer science and the provisions of the Contract, based on an obligation of means. 

21FACTORY will be responsible for allocating the human resources and the material means necessary for the proper performance of the Services. 

6.2 – OBLIGATIONS OF THE CLIENT

The CLIENT undertakes to pay the price referred to in Article 8 within the time limit set in that Article, as an essential obligation.

The good progress of the implementation and use of the Application, and more generally, the performance of the Services, requires effective collaboration between the CLIENT and 21FACTORY. Consequently, the CLIENT will communicate to 21FACTORY, spontaneously or at its request and as soon as possible, all information and documents that are useful for the proper performance of the Services. Similarly, the CLIENT will inform 21FACTORY, spontaneously and as soon as possible, of any event that may impede the proper performance of the Services.

The CLIENT undertakes to use the Application in accordance with its intended purpose, in compliance with the terms of the Contract, the applicable laws and regulations and the rights of third parties, particularly rights relating to the processing of their personal data. 

The CLIENT will be solely responsible for the security, confidentiality and use of the means of authentication on its Salesforce account by the Users. 

Any access to the Application using the means of authentication on the CLIENT’s Salesforce account will be deemed to have been made by the CLIENT. In this case, the CLIENT will be solely responsible for all acts performed on and through the Application, as well as for any harmful consequences resulting therefrom, and releases 21FACTORY from any liability in this regard.

The CLIENT is responsible, with respect to 21FACTORY, for compliance with the provisions of the Contract by the Users. As such, the CLIENT will be responsible for any damage caused to 21FACTORY or to a third party caused by a breach by a User of one of the CLIENT’s obligations under the Contract.

ARTICLE 7 – INTELLECTUAL PROPERTY

7.1 – INTELLECTUAL PROPERTY RIGHTS OF 21FACTORY

21FACTORY is and remains the owner of all intellectual property rights on the Application and all elements that compose it, such as the programs, texts, illustrations, logos and trademarks, as well as on all the creations produced during the performance of the Services.

The Contract does not entail any transfer of rights on these elements to the CLIENT, with the exception of the use rights granted to the CLIENT under Article 7.2. 

The CLIENT undertakes to do nothing and to allow nothing to be done that may infringe the aforementioned rights of 21FACTORY. 

7.2 – USE RIGHTS GRANTED TO THE CLIENT

21FACTORY grants the CLIENT, on a non-exclusive and non-transferable basis, the right to use the Application by the Users, via an electronic communication network, for the duration of the Contract and for the whole world.

The CLIENT agrees not to carry out any other act on the Application, under penalty of counterfeiting. As such, the CLIENT is prohibited in particular from:

• using the Application in a manner not in accordance with its intended purpose or the terms of the Contract;

• assigning or transferring the right to use the Application or allowing any third party to use the Application;

• intervening on the Application to correct any anomalies, to the extent that 21FACTORY reserves the right to correct defects of the Application.

7.3 – INTELLECTUAL PROPERTY RIGHTS OF THE CLIENT

The CLIENT is and remains the owner of all intellectual property rights on its logo and its trademark, as well as on the Data that it integrates into the Application.

21FACTORY is authorised to use the name of the CLIENT, its logo and its trademark as commercial references in its communication media, unless written objection of the CLIENT. 

ARTICLE 8 – FINANCIAL CONDITIONS

8.1 – PRICE DETERMINATION

The annual subscription fee for the use of the Application by the CLIENT is provided in the Proposal. If not, the applicable price is as provided in the fee schedule available on 21FACTORY’s website.

The CLIENT undertakes to pay 21FACTORY the amount of the periodic fee for the use of the Application, in exchange for the possibility of benefiting from the Services referred to in Article 4. 

The amounts shown above and in the Proposal are exclusive of taxes. They are increased by the applicable taxes at the time of billing.

21FACTORY may revise the amount of the annual subscription fee for the use of the Application on the anniversary date of the Contract. In this case, 21FACTORY will inform the CLIENT of the revised amount of the annual subscription fee for use of the Application, giving at least two (2) months’ notice before the end of the current annual period. If the CLIENT disagrees on the revised amount, the latter may terminate the Contract automatically and without any legal formalities by sending a registered letter with acknowledgement of receipt to 21FACTORY, giving at least one (1) months’ notice before the end of the current annual period. In the absence of termination, the revised amount of the fee will apply for the upcoming annual period.

8.2 – PAYABILITY

Unless otherwise stated in the Proposal, the fee for the use of the Application has an annual frequency and is payable in advance, at the beginning of each period.

8.3 – TERMS OF PAYMENT

The billing address is the address of the CLIENT’s registered office.

21FACTORY’s invoices are payable upon receipt, unless otherwise specified in the Proposal or on the invoices.

Failing payment upon receipt, the CLIENT will be liable, automatically and without notice, to pay late penalties calculated by applying an interest rate equal to three (3) times the legal interest rate to the unpaid amounts. In addition, all invoices issued by 21FACTORY will become immediately payable. In addition, 21FACTORY may suspend the performance of the Services, including the provision of the Application, until payment by the CLIENT of the amounts due and the late penalties.

The CLIENT will also be liable to pay a lump-sum indemnity of forty (40) euros, as well as all reasonable expenses incurred by 21FACTORY to recover the amount due. These expenses include the legal and court costs, as well as the recovery costs. 

Any dispute regarding a 21FACTORY invoice must be justified and notified in writing within fifteen (15) calendar days from the date of receipt. After this period, the CLIENT will be deemed to agree with the invoice sent to it and no more disputes will be accepted by 21FACTORY.

Any services requested by the CLIENT, not included in the scope of the Services defined in Article 4, will be invoiced separately and, if applicable, will be the subject of a prior proposal from 21FACTORY.

ARTICLE 9 – CONFIDENTIALITY

Each Party undertakes to keep strictly confidential, not to disclose to third parties and not to use for purposes other than the performance of the Contract, the information of the other Party expressly identified as confidential, that it has received, that it will receive or that it will come to know about in connection with the Contract, whether it is materialised on a support or dematerialised, except with the prior written consent of the other Party.

All the elements of the Application which are not public, particularly its source code, as well as the financial conditions of the Contract, are expressly considered as 21FACTORY’s confidential information. The Personal Data of Users is expressly considered as the CLIENT’s confidential information.

The following information is not subject to this confidentiality obligation:

• information that was already lawfully in the possession of the receiving Party prior to disclosure by the issuing Party;
• information that is provided to the receiving Party in a non-culpable and lawful manner by a third party; 
• information that has fallen or may fall into the public domain in a non-culpable and lawful manner;
• information that the receiving Party may be obliged to disclose due to a legal obligation or an enforceable court decision, but only to the extent necessary to comply with this legal obligation or court decision and subject to informing the issuing Party in writing as soon as possible after becoming aware of this disclosure obligation.

Each Party is liable to the other Party for compliance with this obligation of confidentiality and restricted use by its corporate officers, members of staff and third parties who have been authorised to disclose confidential information.

This obligation of confidentiality and restricted use will apply for the duration of the Contract and for five (5) years after its expiration or termination.

ARTICLE 10 – PERSONAL DATA

10.1 – PERSONAL DATA PROCESSED BY 21FACTORY FOR ITS OWN ACCOUNT

21FACTORY records the personal data (first name, last name, company, business contact details, email address, company’s address, phone number) of any natural person being its contact with the CLIENT.

21FACTORY processes this personal data for the purposes of providing the Services, managing the Contract, managing the invoicing, the recovery and, more generally for the needs of the relationship with the CLIENT and prospecting operations towards the latter. This processing is thus based on the legitimate interest of 21FACTORY to ensure proper performance of the Contract and to carry out prospecting operations towards the CLIENT.

The above personal data is solely intended for the corporate officers and employees of 21FACTORY in charge of these tasks.

21FACTORY retains this personal data for a period of three (3) years from the end of the Contract or from the last contact from the concerned person as regards prospecting operations. 21FACTORY then keeps, in intermediate archives, the personal data necessary for the exercise of a right and the proof of this right for the duration of the applicable prescription period or by virtue of the legal obligations to which it is subject.

In accordance with the legislation applicable in France for the protection of personal data, namely the law of 6 January 1978 relating to computers, files and freedoms as modified by the subsequent laws and the Regulation of 27 April 2016 on the protection of individuals with regard to the processing of personal data and the free movement of such data (hereinafter the “Applicable legislation”), the natural person involved in this processing of personal data may, within the limits and conditions of the Applicable legislation:

• be entitled to access, and where necessary, correct or delete information concerning them; 
• obtain the limitation of the processing of their personal data;
• object to the processing of their personal data; 
• inform 21FACTORY of their specific instructions regarding the fate of their personal data in the event of death.

The natural person concerned may exercise any of these rights by contacting 21FACTORY (data-privacy@21factory.com) and providing proof of identity. The costs associated with the exercise of these rights can be invoiced by 21FACTORY, for extracting or copying personal data beyond the first request, as well as in case of an unjustified or excessive request. 

The natural person concerned also has the right to lodge a complaint with the CNIL or any other competent supervisory authority in the event of a dispute concerning the above processing of their personal data.

10.2 – PERSONAL DATA PROCESSED ON BEHALF OF THE CLIENT

Under the Contract, the CLIENT instructs 21FACTORY to process, on its behalf, the Personal Data of the Users using the Application, so that they benefit from the features of the Application, for the duration of the Contract.

The CLIENT may also instruct 21FACTORY to process, on its behalf, the Personal Data of its employees and clients whose Personal Data appears in documents uploaded within the Application, for the purposes of using the Application.

The Users and the CLIENT’s employees and clients are hereafter together referred to as the “Individuals”.

The CLIENT therefore acknowledges that 21FACTORY is a processor.

The nature of the processing operations is the creation, the registration, the rectification, the cancellation, the visualization, the consultation, and the use of Personal Data through the Application.

The Personal Data processed by the Application are the user name, full name and email address of the Users and possibly the full name, function or image of the CLIENT’s employees and clients.

10.2.1. Obligations of the CLIENT

The CLIENT undertakes to comply with the obligations placed on data controllers by the Applicable legislation.

As such, the CLIENT undertakes in particular to deliver the information provided for by the Applicable legislation to the Individuals concerned by the sub-processing, particularly the fact that 21FACTORY is the recipient of the Personal Data, and as necessary, to collect the consent of the Individuals concerned as defined by the Applicable legislation. 

With respect to 21FACTORY, the CLIENT agrees to grant access or to communicate to it, as the case may be, the Personal Data of the Individuals concerned, to document any instructions regarding the sub-processing in writing and to supervise this processing.

10.2.2. Obligations of 21FACTORY

21FACTORY undertakes to only carry out the sub-processing upon receiving documented instructions from the CLIENT. 21FACTORY undertakes to inform the CLIENT as soon as possible if it considers that an instruction from the CLIENT contravenes the Applicable legislation.

21FACTORY agrees to record the sub-processing in the register it keeps for this purpose.

21FACTORY declares that the corporate officers and employees authorised to intervene as part of the sub-processing undertake to respect the confidentiality of Personal Data in accordance with the confidentiality obligations referred to in Article 9.

21FACTORY undertakes to implement technical and organisational measures to ensure the security and confidentiality of the Personal Data of the Individuals concerned given the level of risk of the sub processing. 

If the CLIENT wishes, prior to the implementation of the sub-processing, carry out an impact analysis of the sub-processing itself on the protection of the Personal Data of the Individuals concerned and, in case of high risk, consult the control authority under which the CLIENT falls, 21FACTORY agrees to assist it by communicating to it any information in its possession that the CLIENT may require for these purposes.

21FACTORY undertakes to provide the CLIENT with the documentation it has compiled to demonstrate compliance with its obligations under this Article. Moreover, the CLIENT may carry out audits of the technical and organisational measures implemented by 21FACTORY to ensure that it complies with these obligations. The CLIENT may not conduct more than one (1) audit per calendar year. The CLIENT must notify 21FACTORY of the performance of any audit with a notice period of at least fifteen (15) working days. All audits must be conducted by an auditor independent of the CLIENT chosen by mutual agreement of the Parties. Such activity may result in 21FACTORY invoicing for its staff being immobilised for the purposes of the audit. The chosen auditor may only start its mission after having signed, with 21FACTORY and the CLIENT, a non-disclosure agreement precisely defining the scope of its mission and imposing appropriate confidentiality obligations on it and the CLIENT. If that the auditor’s report reveals that 21FACTORY has breached the above obligations, 21FACTORY undertakes to remedy this as soon as possible. The cost of the audit will be borne by the CLIENT.

21FACTORY undertakes to assist the CLIENT, to the extent possible, in fulfilling its obligation to respond to requests for the exercise of rights that the Individuals concerned by the sub-processing have under the Applicable legislation.

Under this obligation, 21FACTORY undertakes to pass on to the CLIENT, as soon as possible, any request that an Individual concerned by the sub-processing may make directly to it in order to exercise a right under the Applicable legislation so that the CLIENT can respond to this request. 21FACTORY also undertakes to carry out, as soon as possible, on the Personal Data in its possession, any action that the CLIENT may instruct it to carry out to respond to any request from an Individual concerned to exercise a right under the Applicable legislation. In this case, 21FACTORY may invoice the CLIENT for the costs resulting from processing this request to the extent permitted by the Applicable legislation. 

21FACTORY undertakes to assist the CLIENT in performing its obligations to notify violations of Individuals’ Personal Data by notifying it of any violation of Personal Data as soon as possible and, if possible within 48 hours from the moment it becomes aware of it and by communicating to it any information in its possession that the CLIENT may require to comply with its notification obligations. 

21FACTORY is authorised to use another processor (hereinafter the “Further Processor”) to perform a specific part of the sub-processing on behalf of the CLIENT. In this case, 21FACTORY undertakes to inform the CLIENT in advance in writing of the use of a Further Processor or a change of an existing Processor. Under this information, 21FACTORY will indicate the part of the sub-processing entrusted to the Processor, the Processor’s identity and contact details, as well as the dates of the contract. The CLIENT will have a period of fifteen (15) calendar days from the receipt of this information to oppose the use or change of Further Processor in writing. If no written opposition is made within this period, the subsequent use or change of Processor will be deemed to have been accepted by the CLIENT.

21FACTORY undertakes to make every effort to subject any Further Processor to the same obligations as those incumbents on it under the Contract. 21FACTORY will be held liable to the CLIENT for any breaches of these obligations by a Further Processor. 

On the effective date of the Contract, 21FACTORY subcontracts the hosting of the Individuals’ Personal Data integrated into the Application’s database to the companies MongoDB and AWS, either on their servers located on the territory of the European Union, or on those located on the territory of the United States of America, according to the CLIENT’s instructions as specified in the Proposal. The CLIENT is aware that, considering the Applicable legislation as it stands, the Personal Data of Individuals located in the European Union should not be transferred in the United States of America.

ARTICLE 11 – GUARANTEES

11.1 – 21FACTORY’S GUARANTEES

21FACTORY guarantees that it has not introduced any element over which a third party may have intellectual property rights into the Application, without authorisation from this third party allowing the CLIENT to exercise the right granted in Article 7.2.

Accordingly, in the event of a claim or action by a third party against the CLIENT on the grounds that all or part of the Application infringes its intellectual property rights, the CLIENT will inform 21FACTORY in writing, as soon as possible, of the existence of such a claim or action and will communicate any information relating to said claim or action to 21FACTORY.

In this case, 21FACTORY may, at its option and at its expense:

• obtain the right for the CLIENT to continue to use the element in question;
• or modify the element in question so that it is no longer infringing;
• or replace the element in question with a non-infringing element.

21FACTORY will bear all damages that may be charged to the CLIENT pursuant to a final court decision or a settlement, which may blame the infringement of the rights of the third party on 21FACTORY, subject to compliance with the following conditions:

• the CLIENT has informed 21FACTORY as indicated above;
• the CLIENT actively cooperates with 21FACTORY regarding the settlement of the application or action;
• the CLIENT does not take a position contrary to that of 21FACTORY in the direction of the defense or any negotiations for a settlement.

The guarantee of quiet enjoyment of the Application can only be applied provided that:

• the Application has not been modified by anyone other than 21FACTORY;
• the claim or action of the third party is based exclusively on the Application;
• the application or action of the third party does not relate to an element provided by the CLIENT;
• the CLIENT has used the Application in accordance with the provisions of the Contract.

This clause is the CLIENT’s sole remedy against 21FACTORY under the guarantee of quiet enjoyment.

21FACTORY excludes and waives any and all other warranties. 

11.2 – CLIENT’S GUARANTEES

The CLIENT guarantees that the Data do not infringe any third party’s rights.

Consequently, the CLIENT bears, in the above conditions, all damages, costs and any other consequences that may be charged to or suffered by 21FACTORY in the event of a claim or action by a third party against 21FACTORY on the grounds that all or part of the Data infringes its rights.

ARTICLE 12 – LIABILITY

The CLIENT is solely responsible for any incorrect use of the Application, including the integration of Data that is also incorrect, and for any use of the Application that does not comply with the provisions of the Contract or the applicable laws and regulations, as well as any resulting damage to itself or to third parties. The CLIENT guarantees 21FACTORY against all liability, costs and damages relating to any actions or claims that may be brought against 21FACTORY because of such uses of the Application.

21FACTORY will not be held liable for damages suffered by the CLIENT or third parties due to the use of the Application when such damage is:

• due to the CLIENT, especially in case of use of the Application not in accordance with its intended purpose or the terms of the Contract; 
• due to a third party, especially in case of unauthorised use of or intervention on the Application;
• or due to any event outside the reasonable expectation and control of 21FACTORY, including a failure of the third party provider’s hosting infrastructure, electronic communications networks or electricity supply.

21FACTORY’s liability can only be incurred for damage caused directly to the CLIENT by 21FACTORY’s proved failure to meet its essential contractual obligations or by serious or repeated breaches of its non-essential contractual obligations.

21FACTORY’s liability will be limited, including under a warranty, all damages combined, to the amount of the annual subscription fee due by the CLIENT in return for the use of the Application in respect of the calendar year in which the damage occurred.

In any event, 21FACTORY’s liability cannot be incurred beyond the expiry of a period of one (1) year from the event giving rise to the damage or from the termination of the Contract for any reason whatsoever.

ARTICLE 13 – INSURANCE

21FACTORY declares that it is insured for its professional civil liability with a reputedly solvent insurance company. 

The CLIENT acknowledges being the only one able to predict and quantify the damage likely to be suffered by it in case of difficulty arising in the provision of the Services and more generally in the performance of the Contract, the terms and conditions of which have been adopted having regard to the aforementioned apportionments of liability. As a result, the CLIENT will be responsible for insuring itself against all the risks it anticipates and which do not fall under the responsibility of 21FACTORY under the terms of the Contract.

ARTICLE 14 – NON-SOLICITATION OF STAFF

The CLIENT agrees not to make any job offers, poach, hire or associate, directly or indirectly, any holder of shares of the share capital, corporate officer or member of staff of 21FACTORY who participated in the negotiation or performance of the Contract and for one (1) year after its termination for any reason whatsoever.

In case of non-compliance with this obligation, the CLIENT will pay to 21FACTORY, on first request, compensation equal to twelve (12) months of the net remuneration of the person in question and, if this person receives no remuneration, compensation equal to the highest net remuneration within 21FACTORY, without prejudice to additional damages to compensate for damages other than mere poaching of the person in question.

ARTICLE 15 – ASSIGNMENT 

The Parties shall not transfer any or all of their rights and obligations under the Contract to a third party to the Contract, in any manner whatsoever, directly or indirectly, including without limitation, by assignment of contract, assignment of rights and obligations, lease management, goodwill assignment, assignment of business segments, partial contribution of assets, merger or absorption, without the prior written consent of the other Party. If a transfer is made in violation of this provision, the other Party may terminate the Contract automatically and without any legal formalities by sending a registered letter with acknowledgement of receipt. This prohibition does not apply to transfers to any affiliate of a Party, understood as any company controlled by said Party, controlling said Party or under common control with said Party, with the notion of control being understood by reference to the provisions of Articles L. 233-3-I and L. 233-1 of the French Commercial Code.

ARTICLE 16 – TERMINATION FOR BREACH

In case one of the Parties fails to fulfil to an obligation under Articles 4, 5, 6, 7, 8, 9, 10, 14 or 15 of the Contract which persists after a period of thirty (30) days after formal notice to remedy it with regard to this termination clause, sent by registered letter with acknowledgement of receipt for the breaches that can be regularised, the other Party may terminate the Contract automatically and without any legal formalities by sending a registered letter with acknowledgement of receipt. 

The exercise of this right of termination shall not relieve the defaulting Party from fulfilling its obligations until the effective date of termination, without prejudice to the complaining Party’s right to claim compensation for damages due to the early termination of the Contract.

ARTICLE 17 – CONSEQUENCES OF TERMINATION OF THE CONTRACT

In the event of termination of the Contract for any reason whatsoever, the CLIENT will cease all use of the Application and will return any 21FACTORY related Confidential Information – irrespective of the support – in its possession to 21FACTORY. 

21FACTORY will close the CLIENT’s access to the Application on the effective date of termination of the Contract. Moreover, 21FACTORY undertakes, at the option of the CLIENT notified to 21FACTORY in writing within thirty (30) days of the termination of the Contract, to destroy or return to the CLIENT a copy of the last saved backup of its Data stored in the Application’s database, including Personal Data, as well as any tangible medium embodying Confidential Information. If the CLIENT does not notify its choice within this period, 21FACTORY will be released from any conservation and restitution obligation and will destroy the Data and the Confidential Information of the CLIENT.

The provisions of the Contract which, by their nature, are intended to survive the termination of the Contract, in particular the provisions of Articles 7.1, 7.3, 9, 12 and 14, shall remain in force, as appropriate, for the duration specified therein.

ARTICLE 18 – GENERAL PROVISIONS

The Contract may only be modified by a written amendment duly signed by the authorised representatives of the Parties.

The fact that one of the Parties does not avail itself of any of the provisions of the Contract at a given moment cannot be interpreted as a waiver of its right to avail itself of said provision.

In the event that a provision of the Contract is considered null, invalid or inapplicable, by a law, a regulation or a court decision becoming final and binding, it will be deemed unwritten and the other provisions of the Contract shall remain in full force and effect. The Parties shall endeavour, within one (1) month from the event that led to the nullity, invalidity or unenforceability of the clause, to agree on the terms of a fair replacement clause while respecting the current spirit and economy of the Contract.

ARTICLE 19 – AGREEMENT ON EVIDENCE

All data and computer or digital files stored in the Application and its operating environment during the performance of the Contract shall prevail between the Parties for evidence of the facts to which they relate.

ARTICLE 20 – APPLICABLE LAW – DISPUTES

The Contract is subject to French law.

In case of a dispute regarding the formation, validity, interpretation, performance or termination of the Contract, the Parties shall make every effort to resolve the dispute amicably. This attempt at amicable reApplication shall not preclude applications for interim or provisional measures.

Failing an amicable settlement within two (2) months of an amicable reApplication request from one Party sent to the other Party, any disputes concerning the formation, validity, interpretation, performance or termination of the Contract shall be submitted to the competent courts of the jurisdiction of the Paris Court of Appeal, notwithstanding multiple defendants or third party intervention. This allocation of jurisdiction is also applicable in case of emergency proceedings.