1. Scope and Purpose
Mergify is specialized in the provision of IT solutions accessible remotely via the Internet (in SaaS mode), and more precisely, the IT solution known as “Mergify” (hereafter the “Software”) and the associated services.
The present general terms and conditions of services of the Software in SaaS mode (hereinafter the “GTC”) apply to any offer of sale, sale, or order of the Services concluded between Mergify and any professional user located in France and/or abroad (hereinafter the “Client”) via the website https://mergify.com/ (hereinafter the “Site”).
The present GTC cancel and replace all previous GTC. Mergify reserves the right to modify at any time the GTC, which are applicable as soon as they are put online. The contracts concluded and orders placed with Mergify are subject to the present GTC, which may be supplemented by special conditions in compliance with the regulations in force. Placing an order implies the full and unconditional acceptance of the Client to these GTC.
No general conditions of purchase or special conditions can, except formal and written acceptance of Mergify, prevail over the present GTC.
Documents such as commercial documents, catalogs, advertisements, price lists not expressly mentioned in the special conditions, which constitute purely indicative and non-contractual information, are not part of the contract.
2. Definitions
Contract means these GTC, the quotation, the order form, and, where applicable, any other special conditions agreed between the Parties.
Documentation means the description of the functionalities and the instructions for the use of the Software. It is provided in electronic form in English at the following address: https://docs.mergify.com.
Data means all Client information and data, including any Personal Data, entered or uploaded, automatically or by the User, into the Software, or processed, modified, or generated by or through the Software. The Data is confidential information and remains the property of the Client.
Personal Data means data which, within the meaning of the Data Protection Legislation, allows the designation or identification, directly or indirectly, of a natural person.
GitHub is a hosting and management service for software development (https://github.com/).
Security Incident means any breach of the security of the Software and/or the confidentiality, completeness, and/or integrity of the Data, any violation of Personal Data, as well as more generally any unauthorized and/or illegal access, acquisition, use, disclosure, modification, hosting/processing, destruction or loss of Data.
Software refers to all software programs and solutions made available to the Client in SaaS mode within the framework of the Services and in particular the “Mergify” solution and all subsequent developments of the Software. The Mergify solution is defined as a solution for automating GitHub pull requests.
Operating Platform means all the hardware, software, operating system, database, and environment provided by Mergify on which the Software will be used.
Services means all the services that Mergify undertakes to provide to the Client in execution of the Contract, namely: (i) the provision of the Software in SaaS mode via the Operating Platform as well as the related services as described on the Site, (ii) the hosting of the Software, (iii) the administration and support of the hosting servers, (iv) the support and corrective and evolutionary maintenance of the Software and (v) the correction of Security Incidents. Any other specific services provided by Mergify to meet the needs of the Client will be the subject of a separate contract between Mergify and the Client.
User means any person authorized by the Client to connect to the Software and benefit from the Services in accordance with the provisions of the Contract. A User must be at least 13 years of age.
3. Duration
Depending on the offer chosen by the Client and unless otherwise provided for in the Contract, the Contract is concluded for a period of one (1) year from the date on which the Software is made available to the Client. The Contract is tacitly renewed for successive periods of twelve (12) months on each anniversary date unless terminated by one of the parties by registered letter or email with acknowledgment of receipt at least thirty (30) days before the expiry of the current period.
4. Conditions of access to the Software
4.1. Access to the Software is via the Internet network and requires prior connection to the said network at the Internet address communicated to the Client. The Client will be solely responsible for its connection to the Internet network and for all associated costs. Mergify is released from any liability in case of impossibility to access the Services due to any event beyond its control.
4.2. The use of the Software and Mergify’s Services requires on the one hand that the Client has an account on the GitHub platform (https://github.com/) and on the other hand that the Client authorizes Mergify to connect, in its name and for its account, on the GitHub platform. All conditions and costs associated with the opening or maintenance of the Client’s GitHub account are the exclusive charges of the Client. The Client is responsible for its use and the User’s use of the GitHub platform.
The Client will provide Mergify with its GitHub account information when connecting to GitHub via the Site.
4.3. Mergify grants to the Client, on a non-exclusive, temporary, non-transferable and without right of sub-license, right of access and use of the Software and its Documentation, by the Users, for the duration of the Contract. Access to the Operating Platform and Software is via the Client’s GitHub account.
4.4. Access to the Services is authorized for the number of simultaneous Users defined in the order form. Any additional Users of the Services will be invoiced to the Client. The Client is responsible for the proper use of the Software and the respect of the confidentiality of the identifiers and passwords by the Users.
4.5. The Client is authorized to allow a third-party to access the Software under the same conditions as the Client, for the purpose of carrying out services on its own behalf (e.g., as part of an outsourcing project) or any other circumstance agreed between the Parties. In such a case, the Client guarantees that the third-party chosen by him respects all the rights of Mergify on the Software.
4.6. It is the Client’s responsibility to conclude the necessary licenses for the use of third-party software within the framework of the Services, notably GitHub (https://github.com/). Mergify is in no way a party to the said contracts and the provision of the Services does not constitute a distribution service of the said software. Mergify cannot be held responsible for any default of the Client regarding its obligations towards third-parties holding intellectual property rights on the software concerned. It will be up to the Client to relieve and guarantee Mergify, as far as necessary, of any condemnation to the principal, interests, expenses, and accessories which could be put at its charge because of the irregular use of a third-party software due to a fault of the
5. Terms and conditions of provision of the Services
5.1. The Services are provided within the framework of an Operating Platform using the resources of Mergify, subject to the respect by the Client of the obligations incumbent upon it. Mergify reserves the right in all cases to close or suspend the account of the User concerned, without its liability being engaged under the Contract.
5.2. Mergify can, at any time, modify the Software and/or the Services, or change the way the Services are provided, if it can be reasonably assumed that this does not cause inconvenience to the Client, or if this modification improves the Services.
5.3. The Client acknowledges having been informed by Mergify of all the technical requirements necessary for the optimal functioning of the Services. The Client is moreover informed of the fact that these requirements can evolve, notably for technical reasons. If a change occurs during the course of the Contract, the Client will be informed in advance.
5.4. The Services are accessible by the Client at any time, 24 hours a day, 7 days a week, with the exception of scheduled maintenance periods or in the event of interruption for security reasons.
6. Terms of use of the Software
6.1. It is the Client’s responsibility to ensure that the Software is suitable for its own needs, in particular on the basis of the information provided in the Documentation presented to it and that it has the necessary competence to access the Services and to use the Software.
6.2. The Software must be used in accordance with the provisions of the Contract, as well as the instructions and guidelines for use, safety, and proper operation contained in the Documentation displayed to the Client. The Software must be used in accordance with its intended purpose, solely for the Client’s own needs, within the limit of the number of Users agreed. As part of the provision of the Services, Mergify generates software contributions to the Client’s repositories.
It is specified that within the framework of the Contract, the software contributions generated by Mergify through the Software on the Client’s repositories are the full and complete property of the Client.
6.3. The Client undertakes to request from Mergify an additional quote if it needs to create additional Users beyond the maximum number indicated in the Contract. If Mergify notices that the maximum number of Users stated in the Contract is exceeded, the Client will immediately owe Mergify an additional fee at the current rate.
Any use of the Software not expressly authorized by Mergify under the terms of the Contract is illicit, in accordance with article L.122-6 of the French Intellectual Property Code.
6.4. The Client may not transfer in any way whatsoever the right of access to the Services without the prior written agreement of Mergify.
6.5. The Client must inform Mergify without delay if they notice a Security Incident linked in particular to the voluntary communication or misappropriation of identifiers and passwords, so that Mergify can take without delay all appropriate measures in order to remedy the security breach.
7. Obligations of Mergify
7.1. Mergify undertakes to implement all the means at its disposal to ensure the permanence, continuity, and quality of the Services. This is an obligation of means. The Client undertakes to collaborate with Mergify and to provide or guarantee access to any information or elements that Mergify might reasonably need in order to fulfill its obligations.
7.2. In case of an incident on the network, Mergify undertakes to implement all the means at its disposal to restore access to the Services as soon as possible.
7.3. For technical reasons, Mergify reserves the right, subject to a thirty (30) calendar day notice, to temporarily interrupt all or part of the Services. The scheduled interruptions shall not exceed ninety (90) minutes per month, targeting 99.8% availability.
As a general rule, routine operating and maintenance operations (backup, software updates) do not require interruption of the Services.
7.4. Excluding scheduled maintenance windows, Mergify will use commercially reasonable efforts to maintain 99.8% availability of the hosted portion of the Service for each calendar month during the term of this Agreement. The Service will be deemed “available” so long as Users are able to login to the Service interface and access data. Excluding planned maintenance periods, in the event the Service availability drops below 99.8% for two consecutive months, Customer may terminate the Service in the calendar month following such two-month period upon written notice to Mergify. To assess uptime, Customer may, if under a paying plan, request the Service availability for a prior month by filing a support ticket through the Site.
7.5. Mergify ensures, within the framework of the physical and logical security rules in force on the day of the signature of the quotation, the protection of the whole of the Operating Platform, the results, the processing, and transmissions carried out, as well as the backups carried out on the Operating Platform. These security rules are available on request from Mergify.
8. Fees
8.1. The initial fee for the right to access the Services to be paid by the Client will be determined in the quotation depending on the number of Users designated by the Client and the options chosen by mutual agreement under the Contract.
8.2. The price list is specified on the website at the following address: https://mergify.com/pricing
8.3. The amount of the fee may also vary according to the evolution of economic circumstances. All variations in fees decided by Mergify will be notified to the Client by mail or email two (2) months before their application.
9. Terms of Payment
9.1. The prices will be expressed in dollars (USD), and the payments, unless otherwise agreed between the Parties, will have to be made in this currency by bank transfer or by the secure payment service Stripe, at no cost for Mergify, on the bank account of the latter.
To optimize the security of transactions on the Internet, Mergify uses an SSL (Secure Socket Layer) online payment system so that all means are implemented to ensure the confidentiality and security of the data transmitted within the framework of online payment. The Stripe online payment system automatically checks the validity of access rights when paying by credit card and encrypts all exchanges to guarantee confidentiality. To benefit from the SSL secure payment method, the Client must use browsers compatible with the SSL system.
9.2. The fee, as well as all other sums due under the present agreement, are indicated excluding VAT, customs duties, withholding taxes, and all applicable taxes, which are to be paid by the Client.
Mergify is not obliged to inform the Client of the taxes, duties, or other services in force in the country to which the Services are sent or in which they will be used by the Client. The Client must inform himself with the competent Authorities. Unless specifically agreed between the parties, invoices shall be issued monthly, in advance, payable within 30 days.
The Client will have to pay the total amount of each invoice, including all taxes mentioned on the invoice, without being able to make any compensation with sums due or claimed to be due by Mergify.
Any delay in payment will give rise to the payment by the Client of late payment penalties set at 3 times the legal interest rate and will be automatically debited from the Client’s account without the need for a reminder or a prior formal notice. In accordance with article D. 441-5 of the French Commercial Code, Mergify may require the payment by the Client of a fixed indemnity of forty (40) euros for collection costs in addition to the aforementioned late payment penalties. Additional compensation will be claimed by Mergify as soon as the collection costs effectively incurred are higher than the amount of the aforementioned fixed compensation.
If after the payment deadline, the Client has not paid all the sums due in principal, interest, and costs, Mergify will be able to interrupt access to the Services and will also be authorized to terminate the present Contract, as of right, without notice or judicial formality, without prejudice to the right to recover the sums due and all possible damages.
The Services will resume as soon as the cause of suspension has been removed, without extension of the current period.
10. Assistance, Maintenance & Technical Support
10.1. Assistance is available at the following email address: support@mergify.com.
10.2. For the duration of the Contract, the Client benefits from the supply and installation of corrective and technological updates to the Operating Platform. Any particular maintenance services must be covered by a specific contract.
10.3 Mergify will provide support to authorized users via the service and by email. Although resolution times are not guaranteed, Mergify undertakes to use its best efforts to respond to each support request within 24 hours on weekdays and 48 hours on weekends.
11. Access to the Data
Access to the Data is reserved to the Client only.
However, for the sole needs related to the Services, Mergify may also access it. This access to the Data by Mergify can only be temporary. Mergify will take care not to damage the Data and not to allow any more access to them as soon as the reasons which justified its intervention will have ceased.
12. Guarantee
Once the Software has been made available to the Client, the latter has thirty (30) days to express any reservations as to its conformity and proper functioning. Once this period has elapsed, the Software is deemed accepted by the Client. Mergify makes no other express or implied warranties with respect to the Services, including, without limitation, any implied warranties of merchantability or fitness of the Software for a particular purpose. Mergify does not guarantee the results of the Services and is bound only by an obligation of means. It does not guarantee that the functionalities of the Services will meet the Client’s requirements. The parties acknowledge that software may contain errors and that not all errors are economically rectifiable or that it is not always necessary to correct them. Mergify, therefore, does not guarantee that all failures or errors in the Software will be corrected.
13. Intellectual Property
The Software and the associated Documentation are and remain the property of Mergify. The right of use granted by Mergify to the Client on the Software does not involve any transfer of intellectual property to the Client. Consequently, the Client is forbidden from any act, which may have the purpose or effect of directly or indirectly infringing on Mergify’s rights on the Software or on its brand, which is notably protected by the Intellectual Property Code.
Mergify may use the name of the Client and its logo for the promotion of the Software, provided that it has previously informed the Client in writing.
14. Confidentiality
The parties undertake mutually to be bound by a general obligation of confidentiality concerning any confidential information, whether verbal or written, and irrespective of the format in which it was exchanged as part of the preparation and performance of the contract except for information which is generally known to the public or that has become so other than through the fault of or by the actions of the Client. The parties undertake not to use all or part of the confidential information for purposes or for any activity other than for the performance of the contract and not to make any copies or imitations of all or part of the confidential information. The parties undertake to take all the necessary measures to ensure compliance with this obligation of confidentiality, for the entire term of the contract and for five (5) years as of its expiry and guarantee that all of their employees and sub-contractors or other contractors will meet this obligation. The parties may, however, be required to disclose confidential information if the law or a legal institution (judge, authority) requires them to do so. In this case, the party concerned must inform the other party beforehand.
15. Compliance with Laws
Mergify will comply with the legal and regulatory obligations applicable to it as a service provided under the law applicable to the Contract. Mergify shall not assume the legal and administrative obligations of the Client, including those related to the Services provided under the Contract. It is therefore up to the Client to ensure compliance with the laws and regulations concerning it, without being able to seek the liability of Mergify.
The Client, for its part, also undertakes to comply with the laws in force to which it is subject, either because of its nationality or because of its geographical location.
16. Liability
16.1. Liability of the Client
The Client and the User undertake to comply with the applicable regulations on intellectual property, personal data protection, respect for privacy, and, more generally, to comply with all the regulations in force, applicable to their activity.
16.2. Liability of Mergify
Under the present terms, Mergify is bound by an obligation of means and will not be held responsible for any delay in the execution of the Services.
Mergify can in no case be held responsible for indirect damages suffered by the Client which could occur because of or during the execution of this Contract and its consequences. Indirect damages include, but are not limited to, operating losses, loss of profit, missed opportunities, commercial harm, the consequences of complaints or claims by third-parties against the Client, notwithstanding the fact that Mergify has been warned of the possibility of their occurrence.
In any case, the liability of Mergify, in case of damage to the Client, for whatever reason and whatever the legal basis invoked or retained, all damages combined and cumulated, will be expressly limited and will in no case exceed the amount of the fee received by Mergify, for the Services, for the twelve (12) month period in progress at the time of the occurrence of the damage.
The responsibility of Mergify cannot be excluded or capped in case of bodily injury or damage caused by fraud or gross negligence as defined by jurisprudence. Similarly, it cannot be capped or excluded in case of breach by Mergify of the eviction guarantee.
16.3. The Liability of Mergify can in no case be sought in case of:
use of the Services in a way not provided for in the Documentation or use not expressly authorized by this Contract;
modification of all or parts of the Software or of the information accessible via the Services not carried out by Mergify or by one of the approved service providers designated by the latter;
use of all or part of the Services when Mergify, following a difficulty or for any other reason whatsoever, had recommended to suspend the use of the Services;
use of the Services in an environment or according to a configuration that does not respect the technical requirements of Mergify, or in connection with third-party programs or data not expressly endorsed by Mergify;
the occurrence of any damage resulting from a fault or negligence of the Client, or which the Client could have avoided by seeking advice from Mergify;
use in connection with services of programs not provided or endorsed by Mergify and likely to affect the Services or the Client Data.
17. Termination
17.1. Partial termination at the Client’s initiative
In the event that the Client wishes to terminate parts of the Services, the new fee will be taken into account at the time of the next renewal at the new applicable rate. To do this, the partial termination must be notified by registered letter or by email with acknowledgment of receipt at least fifteen (15) days before the expiry of the current period.
17.2. Termination for fault
In the event of a breach by one of the Parties of an essential obligation provided for in the Contract, which is not remedied within thirty (30) calendar days from the date of the first presentation of a registered letter with acknowledgment of receipt notifying the breach in question and the risk of termination, the other Party may terminate the Contract by registered letter with acknowledgment of receipt, without prejudice to any damages to which it may be entitled under the Contract.
Termination for fault shall take effect on the date of the first presentation of its notification and shall result in the immediate suspension of all the Client’s access to the Services. The termination or the end, for whatever reason, of the present contract does not give rise to the reimbursement of the sums collected by Mergify.
In case of expiration or termination of all or part of the Contract for any reason whatsoever, Mergify undertakes to ensure the operations that will allow the Client to take over, or to have a third-party take over, the Services in the best conditions in order to migrate to any other system chosen by the Client.
17.3. At the end of the Contract, for any reason whatsoever, the right to use the Software granted by Mergify will be automatically terminated as well as the related Services.
18. Force Majeure
Neither party to the contract may be held liable for its delay or failure to perform any of its obligations under the Contract if this delay or failure is the direct or indirect effect of a case of force majeure within the meaning of Article 1218 of the French Civil Code and including, in particular, any: blockage, disruption or congestion of the telecommunications networks, poor quality of electrical power, governmental or legal restrictions, as well as legal or regulatory changes in the forms of marketing. Each party shall inform the other party, without delay, of the occurrence of a case of force majeure of which it is aware and which, in its opinion, is likely to affect the performance of the Contract. The parties will have to consult each other as soon as possible to examine in good faith the consequences of the force majeure and to consider by mutual agreement the measures to be taken If these events last more than two months, Mergify or the Client will be able to terminate the Contract.
In the hypothesis that an event of force majeure and/or its consequences last for more than sixty (60) consecutive calendar days, each party will be able to terminate the sale by registered letter with acknowledgment of receipt, without responsibility on either side.
19. Tolerance
In the event that Mergify does not claim the application of any provision of the GTC or tolerates its non-performance temporarily or permanently, it cannot be interpreted as a waiver by Mergify to exercise the rights it holds hereunder. The fact that Mergify tolerates a non-execution or an imperfect execution of the Contract or more generally tolerates any act, abstention, or omission of the Client that does not comply with the provisions of this Contract will not confer any right to the Client.
20. Invalidity
If one or more of the provisions of the GTC are declared null and void by a court decision or if they prove impossible to implement, the validity of the other provisions of the GTC shall not be affected, and the parties undertake to negotiate a replacement provision in good faith.
21. Personal Data
Mergify will process Personal Data in accordance with its privacy policy: https://mergify.com/privacy
22. Applicable law and Jurisdiction
The applicable law is French law. In the event of a dispute, the Parties shall attempt to settle their disagreements amicably before applying to the competent Court. In the absence of an amicable agreement, any dispute relating to the contract will be brought before the jurisdiction of the Court of Appeal of Toulouse, even in the event of multiple defendants or third-party claims, including for summary proceedings and for payment order proceedings and their consequences.
Updated: 4 March 2024