General Terms and Conditions of Service

1. Preamble

These general terms and conditions (the “General Terms”) apply to all Services performed by Melis at a Client's request.

The General Terms set out the essential conditions under which Melis performs the Service agreed with the Client and described in Special Conditions that supplement and form an indivisible whole with the General Terms. In the event of contradiction between them, the Special Conditions shall prevail.

These General Terms exclude any contrary purchasing or order conditions of the Client, whatever their terms, means or dates of communication, even if they appear on a purchase order accepted by Melis, unless such acceptance of the Client's conditions results from express and unequivocal terms written by an authorised representative of Melis.

2. Definitions

For the purposes of each Contract, the following terms shall have the definitions set out below, unless another definition of these terms appears in the Special Conditions.

2.1 “Specifications” (Cahier des Charges) means the contractual document containing the expression of the Client's needs and the results to be achieved.

2.2 “Schedule” (Calendrier) means the document set out in the Special Conditions defining the deadline date(s) for performing or delivering the Service(s), as well as, where applicable, the periods within which the Service(s) must be finally accepted.

2.3 “Content” means any work, in any form, included in a Site that is the subject of a Service, other than (i) the know-how, inventions, methodologies, specific processes and ideas of Melis used in developing and operating the Site, and (ii) the Melis Software and Developments. Content may include text, music, sounds, photographs, graphics, animations, HTML pages and audiovisual sequences.

2.4 “Client” means the party with which Melis enters into the Contract, as identified in the Special Conditions.

2.5 “Contract” means these General Terms, including their preamble, the Special Conditions defined with the Client, any annexes to the Special Conditions, and any amendment to the Special Conditions signed, where applicable, by the Parties.

2.6 “Equipment” means the hardware whose specifications and characteristics appear, where applicable, in Special Conditions, and which may change during performance of the Contract as the Parties may agree.

2.7 “Confidential Information” means all information of any nature whatsoever — in particular commercial, financial, technical or other — relating to one of the Parties, its subcontractors, suppliers or clients, obtained under the Contract and designated as confidential or confidential by nature, as well as information resulting therefrom. Information of which the receiving Party was already aware before receiving it from the other Party, and which it already freely held (in particular because it had fallen into the public domain without fault of the receiving Party, or because it was created by that receiving Party), is not considered Confidential Information.

2.8 “MELIS Software and Developments” means the computer programs over which Melis holds all intellectual property rights, whose characteristics appear, where applicable, in the Special Conditions, produced by Melis as part of or prior to the Service, and a right to use which may be granted to the Client under the Contract.

2.9 “Third-Party Software” means the programs used by the Client or Melis in performing the Service, the intellectual property rights of which are held by one or more third parties to the Contract, and whose characteristics appear, where applicable, in the Special Conditions.

2.10 “Site Page” means the display of Content on a screen of the Site.

2.11 “Parties” means Melis and its Client, and “Party” means either of them.

2.12 “Service(s)” means the service(s) to be performed by Melis under the Contract, as described in the Special Conditions.

2.13 “Acceptance” (Réception) means the testing operations carried out jointly by the Client and Melis, on completion of which the Client acknowledges that the Services performed comply with the contractual provisions.

2.14 “Server” means all the hardware, software and links on which the Client's Site(s) is/are implemented and which make them accessible on the Internet.

2.15 “Site” and “Digital Application” means the Client's website or digital application that is the subject of the Service agreed in the Special Conditions and which is/will be accessible online at the URL designated in the Special Conditions.

2.16 “Affiliated Companies” means the companies in which one of the Parties holds, or comes to hold, the majority of voting rights, or which comes to control, directly or indirectly, the majority of that Party's voting rights.

2.17 “PaaS Service” means the provision by MELIS to the CLIENT of remote access, via the Internet, to a digital application (the “Melis Platform”) developed, maintained and hosted by MELIS or its subcontractors, allowing use of the features described in the Special Conditions, for the duration of the Contract. The PaaS Service also includes the corrective and evolutionary maintenance services defined below.

3. Framework and terms of performance of the Services

As part of its professional activity, the Client has requested Melis to perform the Service(s) described in the Special Conditions, so that the Client benefits from Melis's technical and graphic expertise.

4. Cooperation of the Parties

4.1 The Client is aware that an IT services engagement, in particular when it concerns its website or a digital application, requires active and regular cooperation between the Parties.

In this respect, the Client undertakes in particular to define its needs, constraints and the general direction of the Project, to respond to the proposals or studies produced by Melis, and, generally, to provide Melis with all useful or necessary information for performing the Service, after verifying that it is accurate, lawful and not prejudicial. The Client also undertakes to provide Melis with the Content in compliance with the Schedule.

4.2 Each Party designates a competent contact who will represent it to the other Party for the performance of the Service. This person, the “Project Manager”, will be identified in the Special Conditions. The Client will use its best efforts to ensure that its Project Manager does not change during performance of the Contract. Melis's Project Manager will be the Client's privileged contact and will alone be able to validate any information required by the Client.

4.3 If a difficulty arises during performance of the Contract, the Parties' duty of cooperation requires them to alert the other Party's Project Manager as quickly as possible and to consult one another to implement a solution suited to the difficulty.

4.4 In the event of a change to the Service requested by the Client after signature of the Specifications and the Special Conditions, a negotiation must be initiated with a view to signing an amendment to the Contract. This amendment must in particular specify the possible impacts, in particular technical and financial, of the change on the Services covered by the Contract, as well as, where applicable, its impact on the Schedule.

5. Schedule

5.1 Where the Parties consider it useful, a Schedule is established in the Special Conditions; it determines the periods granted to the Parties for each stage defined in that Schedule.

5.2 If the Service involves the delivery of different identifiable batches, the Schedule will provide in particular the deadline for delivery of each batch and the periods within which Acceptance of those batches must occur. Acceptance is pronounced as of right if the Client does not make express observation(s) as to the conformity of the delivered batches within the period provided, or if the Client authorises the Site to go live or the integration into the operational application of the batches that have been delivered. No conformity warranty is granted by Melis to the Client for the Services after acceptance under the conditions of this article.

5.3 The Parties undertake to use their best efforts to comply with the Schedule. It is understood that any delay caused by inaccurate or incomplete information provided to Melis, by Equipment not conforming to the agreed specifications, by shortcomings in the Client's organisation, by delay in approving documents or providing Content, by a lack of cooperation, and more generally by a contractual breach, automatically entails a proportional extension of the periods in the Schedule and of the other contractual periods, as well as the Client bearing all the resulting costs and expenses for Melis.

6. Subcontracting

6.1 Melis reserves the right to subcontract all or part of the Services covered by the Contract to third parties, without the Client's prior agreement, which the Client acknowledges and accepts. In this case, Melis remains the Client's sole contact for performance of the Service and retains sole responsibility for its proper performance. However, where the subcontracting concerns the processing of personal data carried out on behalf of the Client, the use of a sub-processor is carried out in compliance with Article 28 of the GDPR: Melis informs the Client in advance of any intended change concerning the addition or replacement of sub-processors, the Client being able to raise objections under the conditions and within the time limits set out in the “Personal Data Processing” annex.

7. Intellectual property

Melis acknowledges that the Client must be able, even after termination of the Contract, to operate and maintain the Site or digital application without authorisations other than those granted herein. The Client in turn acknowledges that Melis devotes a substantial part of its resources to developing know-how that results either in the creation of software or in original computer developments. These MELIS Software and Developments must be reusable by Melis on behalf of other clients, within the limits set out herein. This article, together with Article 8 below, aims — while respecting third-party rights — to establish this balance, the Client becoming owner of most of the elements of the Site or digital application and the beneficiary of a licence over the MELIS Software and Developments.

7.1 Each Party retains exclusive ownership of the patents, know-how, methodologies, trademarks, copyrights and knowledge belonging to it as at the date of signature of the Contract.

7.2 It is further agreed as follows:

(i) The elements of the Content remain the full and entire property of the Client or of the third parties who have granted a right of use or a licence to the Client for the purpose of inserting that Content on a website. Should Melis create Content on behalf of the Client, all intellectual property rights in that Content would be assigned to the Client after full payment for the Services.

(ii) Melis remains sole owner of its methodologies, processes and know-how implemented in developing and operating the Site or digital application; they form part of its trade secrets and remain its exclusive property, whether or not protectable under intellectual property law.

(iii) As regards the Content, the Client grants Melis a non-exclusive, non-transferable right to use it under the Contract. This right of use is granted exclusively for the needs so defined and Melis may not in particular exploit it in any way, for valuable consideration or not, on behalf of third parties. As regards any elements falling under paragraph (iii) above, Melis grants the Client, as needed, a non-exclusive, non-transferable right, for an indefinite period, to use them in operating and running the Site or application. This right of use is granted exclusively for the needs so defined and the Client may not in particular exploit it in any way, for valuable consideration or not, on behalf of third parties.

7.3 For the elements falling under Article 7.2 above over which a Party holds only usage rights, that Party warrants that it has the right to grant the other Party the usage rights conferred under the Contract. If a person or company were to claim that the use of those elements, by the Party to which a usage right has been granted (the “Beneficiary”) by the other Party (the “Grantor”), infringes its rights, the Grantor would endeavour to remedy the situation so that the Beneficiary can continue to use the element(s) in question and would, in any event, indemnify the Beneficiary against any loss resulting from such a claim, including reasonable legal fees and court costs incurred to defend its interests, without prejudice to any damages the Beneficiary may claim as a result of that breach.

7.4 If a person or company were to claim that the use of the Content infringes its rights, the Client would endeavour to remedy the situation so that Melis can continue to use the Content in performing its Service and would, in any event, indemnify Melis against any loss resulting from such a claim.

7.5 If the Service includes the configuration, adaptation and/or modification of Third-Party Software by Melis, the Client warrants that it holds the rights necessary to have Melis perform these services.

8. Usage rights for MELIS Licences and Developments

8.1 Melis grants the Client a non-exclusive, non-transferable right, for the entire remaining period before the intellectual property rights fall into the public domain, to use the MELIS Software and Developments (the “Melis Platform” licences) within the limits defined in this Contract. This right of use is granted exclusively for the Client's own needs, which may not in particular exploit it in any way, for valuable consideration or not, on behalf of third parties. Any provision of the source code of the MELIS Software and Developments shall in no case entail assignment of that source code or of the corresponding MELIS Software and Developments, and shall in any event take place within the framework defined herein.

8.2 The Client may copy one example of the MELIS Software and Developments solely for backup purposes, provided that such copies mention Melis's intellectual property rights.

8.3 Melis expressly reserves the right to correct errors that may affect the MELIS Software and Developments.

8 bis. Terms of use of the “PaaS Service”

8 bis.1 MELIS grants the CLIENT, who accepts it, a non-exclusive, non-transferable access right, limited to the duration of the Contract, to the licences and features of the Melis Platform software described in the Special Conditions. This access is provided as an online service, hosted on the servers of MELIS or its subcontractors. The CLIENT accesses the PaaS Service via its own credentials and passwords, which it undertakes to keep confidential and not to disclose to unauthorised third parties. Any use of the PaaS Service via the CLIENT's credentials is deemed to be carried out by the CLIENT.

8 bis.2 MELIS undertakes to provide corrective maintenance of the PaaS Service in order to correct the anomalies and defects that may affect its proper operation. MELIS also undertakes to carry out evolutionary maintenance of the PaaS Service, including updates, feature improvements and technical adaptations, deployed regularly or occasionally without requiring the CLIENT's intervention. Updates and evolutions of the PaaS Service are included in the subscription price, except for modules developed bespoke for the CLIENT's needs.

8 bis.3 MELIS undertakes to use its best efforts to ensure the availability of the PaaS Service. The PaaS Service is accessible 24 hours a day, 7 days a week, subject to scheduled maintenance periods and force majeure. The details of the guaranteed service level (availability rate, incident response time) will be specified, where applicable, in the Special Conditions. In the event of failure to meet the guaranteed service level, any compensation terms will be defined in the Special Conditions.

8 bis.4 The CLIENT is solely responsible for the entry, accuracy, lawfulness, relevance and use of all the data and content it integrates or processes via the PaaS Service. The CLIENT warrants to MELIS that it holds all the rights and authorisations necessary over this data and content and that their use via the PaaS Service does not infringe third-party rights or breach applicable law.

8 bis.5 As controller of the personal data it integrates or processes via the PaaS Service, the CLIENT undertakes to comply with all its obligations under the General Data Protection Regulation (GDPR) and any other applicable personal-data legislation. MELIS, as processor of the CLIENT's personal data, undertakes to process this data only on the CLIENT's documented instructions and in accordance with the GDPR. The specific terms of personal-data processing by MELIS are detailed in the “Personal Data Processing” annex attached to these General and Special Conditions.

8 bis.6 The CLIENT's data integrated into the PaaS Service is hosted on secure servers. MELIS undertakes to take the appropriate technical and organisational measures to ensure the security, integrity and confidentiality of the CLIENT's data against any destruction, loss, alteration, disclosure or unauthorised access.

8 bis.7 In the event of termination of the Contract, for any reason, MELIS undertakes — at the CLIENT's request made within 30 days of the effective termination date — to return all of the CLIENT's data in a standard, usable format. Any costs related to this data reversibility may be invoiced to the CLIENT under the terms defined in the Special Conditions. After this period, MELIS may proceed with the secure destruction of the data.

9. Financial conditions

9.1 The price is determined in the Special Conditions. It is expressed in Euros and does not include costs and disbursements. It will be increased by VAT and any other applicable tax, whether imposed by French or foreign regulations.

9.2 Invoices are payable on receipt, and at the latest within thirty (30) days following the invoice date, unless a different period is agreed in the Special Conditions within the limits set out in Article L.441-10 of the French Commercial Code. Any payment not made when due automatically incurs, without need for a reminder, late-payment penalties calculated at the interest rate applied by the European Central Bank to its most recent refinancing operation, increased by 10 percentage points, that rate not being lower than three times the legal interest rate in force. In addition, in accordance with Articles L.441-10 and D.441-5 of the Commercial Code, any late payment automatically entails payment of a fixed recovery-cost indemnity of €40 per invoice, without prejudice to additional compensation upon justification where the recovery costs incurred exceed this amount.

9.3 Should the duration of the Service exceed six months, the price stipulated in the Special Conditions may be revised according to the following formula:

P = Po x S / So

where:

P = revised price; Po = initial price; S = the most recent SYNTEC index at the revision date; So = the last known SYNTEC index at the date of signature of the Contract.

Should the SYNTEC index disappear, and failing agreement between the parties on a new index, express jurisdiction is granted to the President of the Paris Commercial Court to define a new index, chosen so as to respect the spirit the Parties intended when drafting the revision clause and to be as close as possible to the disappeared index.

10. Representations and warranties

10.1 The Client warrants that it holds, in France and abroad, all the authorisations necessary for the intended uses of the elements of the Third-Party Software and the Content, as well as those required for the use and exploitation of any databases created in performing the Contract. In particular, the Client warrants (i) that it holds the authorisations to broadcast that Content on the Internet, (ii) that no element of that Content infringes a third party's intellectual property right, and (iii) that it fully complies with the European Union's General Data Protection Regulation (GDPR — Regulation (EU) 2016/679) on the processing of personal data. Where the Site contains hyperlinks to sites published by third parties, the Client is responsible for obtaining all necessary authorisations in this respect from those third parties.

10.2 The Client also acknowledges that, by definition, the Internet is a public, international telecommunications network. Any page of information or image presented on the Site may be “downloaded” onto any computer in the world, then enlarged, printed and/or modified. The Client expressly declares that it is aware of the consequences and risks of such use and may not hold Melis liable for any misuse by a third party of all or part of the Content broadcast on the Site.

11. Client liability

11.1 The Content broadcast on the Site and all the consequences of broadcasting all or part of it on the Internet are the Client's sole responsibility.

11.2 The Client will be liable to Melis for the consequences arising from the communication of any false or inaccurate information whose reproduction would be unlawful and/or likely to engage Melis's liability on any ground whatsoever. The Client generally warrants the truthfulness and lawfulness of all elements of the Content provided to Melis.

11.3 The Client undertakes to indemnify Melis for any loss or damage, including those incurred to defend its interests, as a result of a breach of the terms of the Contract.

11.4 The Client is responsible for the existing relationships with third parties in order to obtain the rights necessary for the intended use of the Third-Party Software.

12. Melis liability

12.1 Melis will be liable to the Client only for the direct and personal loss actually suffered by the Client, for a proven fault of Melis, and to the extent that such fault is the cause of that loss. In particular, Melis may not be held liable for what remains outside its control, such as failures of, and connection interruptions caused by, the Site's host, or anomalies arising from the Equipment where it belongs to, or is under the control of, the Client.

12.2 The Parties undertake to do everything possible to limit the losses they might suffer in performing the Contract.

12.3 Compensation for indirect damage — including, without limitation, loss of operations, productivity, profits, brand image, contract(s), investment(s), time, data, file(s) or computer program(s) — is excluded from Melis's possible liability, even if Melis has been advised of the possibility of such damage.

12.4 In any event, Melis's liability shall not exceed, save in the case of gross negligence, the amount of revenue actually received by it for the Service up to the date of the event giving rise to its liability.

13. Force majeure

13.1 As a first step, should a force majeure event occur during the Contract and prevent either Party from fulfilling its obligations under the Contract, performance of the Contract would be suspended.

13.2 Should the force majeure event continue for more than two (2) months, either Party may terminate this Contract by registered letter with acknowledgement of receipt, without the other Party being able to claim damages as a result.

13.3 Cases of force majeure are those usually recognised by the case law of the French courts.

13.4 Cases of force majeure release the parties from liability under the Contract.

14. Duration of the Contract

The Contract enters into force from the date, and for a duration, set out in the Special Conditions.

15. Non-solicitation of personnel

15.1 Each Party waives, save prior written agreement, the right to make, directly or indirectly, offers of employment to an employee of the other Party who has worked for it or on a matter concerning it, or to take that employee into its service, in any capacity whatsoever.

15.2 This waiver is valid for the duration of the Contract and the twelve (12) months following the end of the Contract, for any reason.

15.3 Should one of the Parties fail to comply with this commitment, it undertakes to compensate the other Party by paying an indemnity equal to the gross remuneration the employee will have received during the twelve months preceding their departure.

16. Confidentiality

16.1 The Parties mutually undertake to observe the strictest confidentiality regarding the Confidential Information they may learn while performing the Service covered by the Contract, as well as the terms of the Contract.

16.2 The Parties guarantee compliance with this confidentiality obligation by the members of their staff, their employees, and those of their Affiliated Companies, advisers and any subcontractors who need to know its Confidential Information under the Contract. The Parties undertake to limit the disclosure of Confidential Information exclusively to the persons who need it in performing their work under the Contract.

16.3 If a Party were compelled, by any judicial or administrative authority, to reveal all or part of the content of the Contract, it would have to notify the other Party immediately in writing.

The Parties' obligations under this article shall survive and remain in force for five (5) years following the end of the Contract, for any reason.

17. Termination of the Contract

17.1 Without prejudice to any damages, the Contract will be terminated as of right, without any other judicial or extrajudicial formality, in the event of a serious breach by either Party of any of the obligations provided herein, 7 (seven) days after the Party relying on this article sends the defaulting party a formal notice by registered letter with acknowledgement of receipt that remains unanswered, provided that the defaulting Party has not, in the meantime, complied with the terms of the Contract relating to the allegedly unperformed obligation.

17.2 If such termination occurred before the Site went live, the Client would return to Melis the MELIS Software and Developments for which a usage licence may have been granted under the Service, undertaking to keep no copy or archive of them.

17.3 In the event of termination of the Contract, Melis undertakes to destroy or return to the Client the elements of the Content in its possession or under its control.

18. Non-assignment

The Parties may not transfer to any third party all or part of the rights and obligations of the Contract without the prior written authorisation of the other Party.

19. References

The Client authorises Melis to mention its name, as well as the general nature of the Service(s) provided, to prospects and/or potential investors.

It is specified that the CLIENT authorises the presence of Melis's signature on its site in the Legal Notice/Credits section.

20. Miscellaneous

20.1 Melis retains the right to work on projects of the same nature and/or involving similar skills on behalf of third parties, in compliance with its confidentiality obligation defined in Article 16 hereof.

20.2 The Parties elect domicile at their respective registered offices.

20.3 If services must be performed on the premises of the other Party, each Party will retain its status as employer towards its staff, who will receive instructions only from it, but must comply with the health and safety rules in force on the other Party's site.

20.4 The Contract constitutes the full and entire agreement of the parties regarding its subject matter and replaces all verbal or written agreements concluded before its effective date.

20.5 The fact that a Party does not rely on a breach by the other Party of any of its obligations under the Contract may not be interpreted in the future as a waiver of the obligation in question.

20.6 Should any provision of this Contract be unenforceable or invalid for any reason, such unenforceability or invalidity shall not affect the enforceability or validity of the other provisions of the Contract, and that unenforceable or invalid provision shall be severed from the rest of the Contract. The Parties agree to negotiate in good faith to replace any unenforceable or invalid provision with a valid provision intended, as far as possible, to achieve the same purpose and effect.

20.7 The Contract is governed by French law.

20.8 Any dispute arising in connection with the Contract shall fall within the exclusive jurisdiction of the Paris Commercial Court, notwithstanding plurality of defendants or third-party claims, even for urgent or protective proceedings, in summary proceedings or by application.

20.9 This Contract is drawn up in French; one or more translations of this document may be produced, but in the event of dispute or difference between the various languages of the Contract, only the French version shall prevail.