General Terms and Conditions of Sale – version 2016.11.a
The company OUTSCALE [hereafter OUTSCALE] offers a series of very innovative and flexible offers – called “Cloud Computing” – intended for companies [hereafter the CLIENT].
The “Cloud Computing” is a new paradigm in IT, which enables the CLIENT to benefit from memory resources and calculation servers opereated by OUTSCALE and its sub-contractors, located throughout the world, redundant and linked by networks such as the Internet, with said resources being self-expanding and able to be virtualized, as the case may be.
The OUTSCALE offers are directed at companies which, on the one hand, (i) operate IT related systems (applications, software, sites, databases, scripts, etc.) which they shall make accessible to users (company employees or third parties; clients for example) via Internet, and, (ii) on the other hand, intend for said systems to be delivered on virtual machines and/or object storage facilities, which are offered by OUTSCALE in the infrastructures related to “Cloud Computing”.
OUTSCALE proposes offers pursuant to which the virtual machines are supported by an infrastructure that is entirely dedicated to the CLIENT (in such case OUTSCALE may also offer to manage the virtualization of the infrastructure dedicated to the CLIENT), and other offers pursuant to which the virtual machines are supported by a redundant virtualized infrastructure by OUTSCALE.
In any event, regardless of the offer retained by the CLIENT, OUTSCALE shall be responsible for the infrastructure that supports the virtual machine(s) that it makes available to the CLIENT, but OUTSCALE shall not by any means be responsible – neither from a legal nor a technical standpoint – for the system(s) operated by the CLIENT on its virtual machine(s).
1 – Definitions
For the interpretation of these General Terms and Conditions of Sale, the terms and expressions below shall be interepreted according to the definitions of this Article – with said definitions being of a contractual nature – when said terms begin with a letter in the upper case.
CLIENT Account: An account which must be created by the CLIENT in order to benefit from the Services. The CLIENT must provide OUTSCALE with its identification information (owner, company, postal address and telephone numbers) that is accurate and up-to-date as well as its accurate and up-to-date bank details necessary for the monthly invoicing of the use made by the CLIENT. A CLIENT, individual, may only have one Account. With regard to legal entities, they may contact the business services in order to negotiate an exception to this principle. The Account identification shall be in a single email which may not be modified without first being destroyed and setting up a new Account.
Agreement: The agreement entered into between OUTSCALE and its CLIENT, to govern the Services. It is comprised of these GTCs and completed by the Specific Conditions, which must make explicit references to these “OUTSCALE GTCs version 2016.11.a”, with the exception of any other document. The Agreement shall be concluded as stated in the Article “Formation of the Agreement/ Integrality of the Agreement / Hierarchy”.
API: Shall mean a program applications interface.
API control: Program interface made available to the CLIENT by OUTSCALE enabling the CLIENT to control and configure the Services (creation automatization, withdrawals, startups and shutdowns of VM; temporary extensions of the scope of the Services in the event of a detection of a lack of resources by the Infrastructure; etc.)
Areas of availability: Shall mean a place located in a Region where OUTSCALE has deployed the equipment enabling it to deliver the CLIENT with all the Service Provisions provided in the Agreement. The OUTSCALE Infrastructure is designed so that the default of an availability Area shall not affect all the other Areas of the Region. By launching its System on all the availability Areas of a Region proposed by OUTSCALE, the CLIENT shall protect itself against any possible defaults of having only one availability Area.
CLIENT: Any entity that has entered into an Agreement – in accordance with the Article “Formation of the agreement / Integrality of the Agreement / Hierarchy” – with OUTSCALE. The offers by OUTSCALE are not intended for consumers but are targeted at professionals, as the case may be advised by IT professionals as the CLIENTS are not themselves professionals in IT and networks.
Cloud Computing: Technique for making available to CLIENTS – via Virtual Machine – memory resources, server calculations and storage (which are owned by OUTSCALE and/or its sub-contractors) linked up by networks. Said servers and the underlying Infrastructure are operated and maintained by OUTSCALE and/or its sub-contractors, in a transparent manner for the CLIENT.
CLIENT Data: All the CLIENT Data hosted by OUTSCALE within the framework of these GTC, whatever the nature thereof (for example, the CLIENT’s IT programmes, data related to these programmes, CLIENT databases, Personal data, etc.) and, wherever these data are situated, in particular: in the CLIENT System, in Object storage environments, on Snapshots, etc.
Electronic registered letter: Electronic mail sent by a third party within the meaning of article 100 of the “Code des postes et des communications électroniques”. When these GTC specify notification by Electronic registered letter, OUTSCALE will be entitled to replace this with a registered letter in paper format or any other form of notification with at least equivalent guarantees.
Extension of the Scope of the Services (or Extension): When the offer subscribed so enables, this shall involve the CLIENT purchasing supplementary resources from OUTSCALE, over a given period, for example, to meet new needs.
General Terms and Conditions of Sale (or GTC): This document (“Preliminaries” and “Definitions” Articles included).
Dedicated Infrastructure for the CLIENT or “Private Cloud”: Infrastructure which supports the Virtual Machines of a single CLIENT (such an infrastructure is proposed in the context of “private offers” or “hybrids”); this is operated by OUTSCALE.
OUTSCALE Infrastructure: All of OUTSCALE’s equipment or that of its sub-contractors (such as datacenters, servers, routers, etc.) necessary for the provision of Servces, as well as all of OUTSCALE’s other activities; the Dedicated Infrastructure for the CLIENT, and the Shared Infrastructure, form a part of OUTSCALE’s infrastructure.
Shared Infrastructure or “Public Cloud”: Infrastructure which supports the Virtual Machines for several CLIENTS; this is operated by OUTSCALE.
Managed Services of the Virtualization for a Dedicated Infrastructure (or Managed Services of the Virtualization): Management by OUTSCALE of the Virtualization tools for the CLIENT’s Dedicated Infrastructure. The CLIENT may choose between several levesl of Services (Public Cloud support, MCO Supervision, Managed Services). The detail of the Services shall be indicated in a document to be drafted between the CLIENT and OUTSCALE called “Service Agreement”.
CLIENT Manager(s): The person(s) duly appointed by the CLIENT to work on the CLIENT’s Virtual Machine(s); for example, to install, set the parameters, administer and maintain the software and applications on the CLIENT’s Virtual Machine(s). The latter shall also be in charge of the management and/or control of the Extension of Scope of the Service Provisions, as well as the CLIENT’s Account management.
OMI: IT code which enables access to a ready-for-use Virtual Machine. We may also use the term Image Machine or Template Machine.
Order Form: Designates the formalised document signed by the CLIENT relating to a Proposal for Services, a quote or an on-line product, describing the Specific Terms and Conditions applicable, if any. OUTSCALE bears no obligation of any sort for the performance of Professional Services or the provision of services requiring a quote without an Order Form signed by the CLIENT and accepted thereafter by OUTSCALE.
OUTSCALE: OUTSCALE SAS, Nanterre Registry of Trade and Companies B 527.594.493, with a capital of 825,600 euros, with its registered office located at 1 rue Royale, 319 Les Bureaux de la Colline, 92210 Saint-Cloud. For any questions relating to the personal Data (except for those related to the CLIENT’s Systems, which are under its sole responsibility) you may contact email@example.com.
Personal data: Shall have the meaning which is given by the Law of January 6, 1978 relating to data processing, files and liberties.
POP: Point of Presence of the Cloud Operator. This shall concern a place, in general in a Datacenter, where OUTSCALE operates one or several of its Services. The list of POPs in France is available on the OUTSCALE Wiki (wiki.outscale.net).
Foreign POPs: This concerns POPs that are not located in France. They are operated by independent companies to which OUTSCALE subcontracts all or part of its Service provisions.
To Process/Processing: Shall have the meaning given to it by the Law of January 6, 1978 relating to data processing, files and liberties.
Professional Services: Any Service Provision provided by OUTSCALE upon the CLIENT’s specific request, in particular with the aim of enabling the CLIENT to acquire specific skills to enable him to migrate his information system to the Cloud Computing. These services are not subject to SLAs and the liability commitments for OUTSCALE are limited.
Project: Designates any CLIENT project in which OUTSCALE is involved as the provider of Professional Services. When the CLIENT Project involves service providers other than OUTSCALE, and unless otherwise stipulated in the Proposal for Services, OUTSCALE never takes charge of project management which is the responsibility of the CLIENT alone.
Proposal for Services: Designates any commercial proposal (such as quotes or on-line orders) produced by OUTSCALE and describing the Professional Servcies required by the CLIENT within the framework of a Project fixed by the CLIENT.
Provisions or Services: The availability of resources by OUTSCALE to the CLIENT (Virtual Machines, Storage), within OUTSCALE’s Shared Infrastructure or the Dedicated Infrastructure for the CLIENT, according to the offer chosen by the CLIENT; as well, as the case may be, as related Services such as the Managed Services for the Virtualization of a Dedicated Infrastructure or a storage Service facility or Professional Services.
Region: Shall mean a geographical area covering one or several Availability Area(s).
Service access key: This concerns a set of digital identifiers (login, password, API key, etc.) enabling the CLIENT to make its authentication on its Infrastructure, for example on the API, in order to control its resources and subscribe to the Service. The access Keys are used for a specific account and must not be shared by the CLIENT.
Service Quality (or SLA): OUTSCALE’s Service Quality commitments such as defined in Article 8 of the GTCs.
SLA: Shall mean the commitments for OUTSCALE’s Service Quality in the context of the Services and are defined in Appendix A to this Agreement.
Snapshot: Shall mean the “Photographs” of a continuous Storage made at the initiative and under the CLIENT’s sole responsibility. The CLIENT (i) must not take Snapshots during the maintenance periods, and (ii) must follow OUTSCALE’s technical recommendations, summarized on its Wiki (wiki.outscale.net), in relation to Snapshots, and in particular, ensure the consistency of its hard drive prior to taking a Snapshot.
Specific Conditions or Service Agreement: Contractual document (in the form of an order form or an application agreement or conditions displayed on the site at the time of registration) completing these GTCs and specifying the offer (price, number of Virtual Machines, Infrastructure, specific Service Quality that overrides that of Article 8 of the GTCs, Services, duration of the Services, specific conditions…) subscribed by the CLIENT, on-line, via the management API or by any other means. They shall form an integral part of these GTCs.
Continuous Storage: Service provision subscribed by the CLIENT in its management interface. The continuous Storage may be corrupted for various reasons (improper manipulation, ill-will, etc.) and it shall be the CLIENT’s responsibility to take Snapshots as often as necessary to be able to return to a proper state.
Non-continuous Storage: Storage space, used by the Virtual Machine, the data of which shall be eliminated with the re-start of the Machine. By default, the CLIENT’s Virtual Machine shall only have storage for its boot disk which must not be used for storing data. It is highly recommended for the CLIENT to subscribe with OUTSCALE for a solution of Continuous Storage, and it shall be essential if he wishes to retain the data in the event of a shutdown of the Virtual Machine.
Storage Service Facility (Object storage): A storage environment that enables data to be sent and received from an IT platform via the Internet, with a copy of the data on three separate physical equipment in order to guarantee the Sustainability of the data in the event of a simultaneous breakdown of one or two of the physical equipment used. Complementary options (archivage, double site, etc.) may complete this offer.
Support: shall mean the technical support provided by OUTSCALE.
Sustainability: Probability of non-deletion of data inadvertently (the deletion could be caused by a physical phenomonen such as “bit flips”, the dysfunction of a specific technology, the aging of the storage mediums, etc.), for example: a sustainability of 99.9999999 % per year shall mean that 0.0000001 % of the data shall risk being altered during the year.
CLIENT System: The applications, developments, data, databases, software, etc. placed on a Virtual Machine by a CLIENT, in order to render them accessible to users via Internet. OUTSCALE shall not be responsible for the CLIENT System neither from a legal nor a technical standpoint.
CLIENT’s Provisional System: CLIENT test system created in the context of the Professional Service.
CLIENT’s Technical Contact: Designates the CLIENT’s technical contact vis-à-vis OUTSCALE within the framework of the performance of the Professional Services. The name and contact details for the CLIENT’s Technical Contact are indicated on the Order form for the Professional Services. The CLIENT undertakes to notify OUTSCALE immediately of any change relating to the CLIENT’s Technical Contact.
Virtual Machine(s): Virtual Servers which setup the CLIENT systems and are located within a Dedicated or Shared Infrastructure. They shall include: (i) memory resources (RAM and hard drive and/or other means of storage), (ii) calculation resources, (iii) continuous storage with or without guarantee of performance, (iv) an operating system (Windows®, distribution LINUX or otherwise), (v) third-party applications that may be subject to licences, (vi) the standard security system, (vii) bandwith allocations, (viii) and shall benefit, as the case may be, from automatic saving of periodic data. All the characteristics from (i) to (viii) above, shall be defined by the CLIENT, under the options proposed by OUTSCALE, and registered in the Specific Conditions. As OUTSCALE is unaware of the type of Systems that the CLIENT envisages to setup on the Virtual Machines, it shall be unable to offer advice in its choices. The CLIENT, if it is not an IT professional, must be assisted by a professional to make his choices. The same shall apply for the choice of a Dedicated or Shared Infrastructure.
Virtualization: Technique enabling logic resources to be created based on physical resources, for example Virtual Machines based on physical servers.
2 – Purpose of these GTCs
These General Terms and Conditions of Sale – which may be completed by Specific Provisions – have the purpose of defining the scope and terms of the Service Provisions delivered by OUTSCALE for the CLIENT, as well as the financial conditions of the latter.
3 – Formation of the Agreement / Integrality of the Agreement / Hierarchy
3.1 Formation of the agreement
The agreement is irrevocably formed as from the acceptance by the CLIENT (i) of these GTCs, on the one hand and, (ii) on the other hand, Specific Conditions (regardless of whether the latter takes the form of an on-line Order or an application agreement negotiated between the CLIENT and OUTSCALE).
By express agreement, the acceptance by the CLIENT of an Order form (or an application agreement) assumes that these GTCs have been accepted, which the CLIENT acknowledges to have read and understood, assisted by the advice offered by a professional as necessary.
When the CLIENT is not an IT professional, he must be assisted by a professional who has the competence to carry out the technical choices related to the Specific Conditions (in particular: choice of a Dedicated or Shared Infrastructure, the characteristics of the Virtual Machines and their operating system, necessary resources, bandwith, data safeguard policy, etc.)
By express agreement, as explained in the article “Validity of electronic means for notifications issued within the scope of the Agreement”, the CLIENT must refuse these GTCs and not enter into an Agreement with OUTSCALE if it does not accept email and Electronic registered letter as methods of notification in the context of the Agreement.
Formation of the Agreement on-line (Order generated on the basis of a form)
Certain offers by OUTSCALE may be accepted by the CLIENT on-line directly on the OUTSCALE site (www.outscale.com). In such case, the Agreement (GTCs and Specific Conditions defined via a form on the OUTSCALE site) shall be irrevocably deemed to be formed after validation of the CLIENT account and the sending by the CLIENT of its bank details to OUTSCALE as explained in Article 14.2.
When the CLIENT registers on-line, he shall undertake to provide genuine and accurate information in the registration form, failing that OUTSCALE’s obligations herein shall be suspended until the information provided by the CLIENT has been corrected and verified.
If OUTSCALE detects anomalies in the information provided suggesting that the information provided is incorrect or erroneous (if any reasonable person who was placed in the same situation as OUTSCALE considered such information as erroneous), it shall initiate the VERIFICATION PROCEDURE described below:
• OUTSCALE shall send an email to the CLIENT to inform it of the anomalies detected,
• The CLIENT shall have a period of TWO HOURS to acknowledge receipt of this email and provide corrections or provide the supporting documents that would be requested of it by OUTSCALE with a view to verifying the information provided,
• Upon failure by the CLIENT to respect the aforementioned delay, OUTSCALE may take any measures that it considers necessary to ensure the security of its Infrastructure, and in this regard it may, in particular, carry out or have carried out any investigations to identify the CLIENT, verify the use made of the resources made available to the CLIENT and more generally all that may be necessary to ensure that the use made by the CLIENT of OUTSCALE’s resources and Infrastructure is not contrary to the law.
During the entire duration of the VERIFICATION PROCEDURE, OUTSCALE may if it considers necessary, suspend the CLIENT’s account or limit its activity. In the event of a non-response from the CLIENT and the non provision of information or conclusive supporting documents, OUTSCALE may terminate the Agreement formed, without notice.
When the Agreement is formed on-line, the CLIENT may not derogate from the GTCs, as, if he does not accept in full or in part, the CLIENT must, above all not finalize the transaction, and must contact OUTSCALE’s business servicess in order to negotiate an application agreement which may derogate from these GTCs, subject, clearly to the acceptance by OUTSCALE of the derogations to the GTCs intended by the CLIENT.
The CLIENT may, after its first order, use an API control to automate and industrialize the Extension (and, correlatively, any reduction) of the scope of the Service Provisions (for example, the API may order additional Virtual Machines for a defined period), as explained in the Article “Extension of the scope of the Service Provisions”.
Application agreement negotiated with OUTSCALE’s business services
Certain offers require, in any case, the negotiation of an application agreement and these offers may not be accepted on-line, as they require the CLIENT to contact OUTSCALE’s business servicess.
3.2 Integrality of the Agreement
All the discussions, advertisements, emails, offers, propositions, etc. with the same purpose as the Agreement (i.e., on the one hand, these GTCs and, on the other hand, the Specific Conditions in the form of an order form defined and accepted on-line or a negotiated application agreement), shall be cancelled by the latter, which shall constitute the full agreement between the CLIENT and OUTSCALE.
3.3 Hierarchy of the contractual documents
In the event of a contradiction between the Specific Conditions (whether contained in an Order Form or in another contractual document) and these GTCs, these GTCs will always prevail, except in the case whereby the GTC Specifc Conditions take the form of an accepted Order Form or a negotiated application agreement, and that the clause(s) of the latter which are contradictory with these GTCs begin with the mention “By derogation with OUTSCALE’s General Terms and Conditions of Sale Version 2016.11.a”; and also in the cases whereby these GTCs expressly provide for a possibility of derogation in the Specific Conditions.
Furthermore, if one of the clauses of the Agreement were to be deemed contrary to the law, another clause that is compliant to the law must be substituted, the intent of which is as close as possible with the clause that is declared invalid.
4 – Evolution of the General Terms and Conditions of Sale
In particular, in order to improve the quality of the Service Provisions, OUTSCALE shall reserve the option to develop these GTCs.
OUTSCALE may either use the CLIENT interface for the management of its account to have the new GTCs validated, or forewarn the CLIENT by an email sent to the CLIENT Manager or at least one of them, if there are several (the CLIENT may appoint a Manager who shall be solely empowered to handle this issue; in such case, OUTSCALE must send its email to the latter).
The CLIENT shall therefore have a period of 1 (one) month to refuse modification by sending, to OUTSCALE, a registered letter with return receipt requested, notifying its refusal of the modification of the GTCs. In such case, the different Service Provisions already applicable shall continue through to their term under the aegis of the former GTCs, but:
- the latter may be renewed even if the Agreement would provide for a tacit renewal clause,
- the CLIENT may no longer commit to new Service Provisions by signing new order forms (nor extend the Service Provisions in the context of the Article “Extension of the Scope of the Services); except, of course, if the CLIENT decided to withdraw his refusal of modification of the GTCs by registered letter with acknowledgment of receipt.
Upon failure by the CLIENT to notify his refusal of the modification of the GTCs, according to the procedure defined above, the CLIENT shall be deemed to have irrevocably accepted, and the latter shall constitute an amendment to the Agreement.
Nevertheless, when the evolution of the GTCs is the consequence of a legislative or regulatory modification or a modification resulting from case law or any other legal obligation (nationale or international) which is binding upon OUTSCALE, the CLIENT shall not have the right to refuse said modification of the GTCs which shall be binding upon him, in the same manner as the legal modification was enforced upon OUTSCALE.
5 – OUTSCALE’s obligations
OUTSCALE shall carry out its Service Provisions in accordance with the rules of professional practice.
• Operate, maintain, manage, etc. OUTSCALE’s Shared Infrastructure which supports the CLIENT’s Virtual Machines and/or the Storage Service Facilities;
• If the CLIENT ordered a Dedicated Infrastructure, OUTSCALE must operate and maintain it and, as the case may be, assure the Managed Services for its Virtualization, if this is provided in the Specific Conditions;
• Make available for the CLIENT the Virtual Machines that it ordered with the operating system provided in the Specific Conditions, along with the security tools chosen by the CLIENT;
• Assure that the Virtual Machines have enough memory, calculation and storage resources provided in the Specific Conditions;
• Provide the CLIENT with an administration interface of its Virtual Machines so that he may install and administer his System (his CLIENT shall be responsible, as the case may be, assisted by an IT professional, to ensure that its System may be administered via said interface, which shall imply that the CLIENT shall have asked OUTSCALE all the appropriate questions in this regard prior to accepting the Agreement, and to provide the CLIENT Manager with a secret code to enable the access to this administration interface;
• Upon the CLIENT’s written request, restore one or several Virtual Machines to their original state (a placebo of the CLIENT’s system, and in particular its Data) or in their initial safeguard status (or a previous safeguard status) if the CLIENT has requested this Service;
• Provide the administration interface of the CLIENT’s Account;
• Ensure a Support and assistance Service for the use of the “OUTSCALE” interfaces made available to the CLIENT (i) in accordance with the hours and terms defined in the Service Agreement if the CLIENT has subscribed to an optional fee-based offer for Support and assistance, or (ii) by providing a free access to the knowledge bases available on OUTSCALE’s Wiki (wiki.outscale.net);
• Provide a control API enabling the CLIENT to automate the management and administration of the Services;
• Ensure, as the case may be, the other Services provided in the Specific Conditions;
• Provide the statements and reports provided in the Specific Conditions.
When it is provided in the Specific Conditions, OUTSCALE may be subjected to specific commitments of Service Quality derogatory to those of Article 8 (availability, bandwith, etc.) which may give rise to financial penalties and bonuses.
In any event, the penalties, when applicable, may not exceed 30 % (thirty percent) of the amount of the invoice of the month during which the incidents giving rise to the penalties occurred. Furthermore, said penalties shall constitute a flat-rate final settlement of damages indemnity for the incidents giving rise to the penalties, with these penalties being considered as a final discharge of liabilties.
Furthermore, in the event whereby the CLIENT were to be delayed in making payment, without OUTSCALE having the Services suspended, the penalty system would therefore automatically be suspended, and insofar as the CLIENT has not made full payments.
Furthermore, the penalties which could have been requested of the CLIENT, during the period of suspension of the penalties, shall be lost without prejudice to the application of late-payment interests as provided in the Article “Financial Conditions”.
The fact that OUTSCALE would have continued the CLIENT’s Services on a debit Account shall not confer any right on the CLIENT, and (i) OUTSCALE may cease the Services at any time (ii) furthermore, the CLIENT may not under any circumstances argue that he benefited from the maintenance of Services over a period, inspite of a debit Account, to require the renewal of this tolerance thereafter.
6 – The CLIENT’s Obligations
6.1. Duty of care obligation
The CLIENT must operate the Virtual Machines (and, if applicable, the Dedicated Infrastructure) made available by OUTSCALE “as a reasonable man”, and, in particular, he shall undertake to:
- Ensure the respect of the laws applicable to the Service Provisions, in particular, the Law on the Confidence in the Digital Economy and different laws on internal security;
- Provide identification information and bank details during the creation of his CLIENT account and to keep them updated;
- Ensure the respect of the payment periods provided by the Agreement;
- By express agreement, the CLIENT shall be solely liable from a legal and technical standpoint for his System (including the data, regardless of their origin); he shall also be responsible for his domain names, SSL certificates, and for the log management of his System in accordance with the law, etc.
- Protect his Service access keys;
- Not to propose a System that is contrary to the different norms, laws, decrees, etc., both national and international (incitement of racial hatred, pedophilia, not to be contrary to public order, diffamation, media and audiovisual communication freedoms, public economic policy, spam, computer crime, etc.);
- Not to host health data of a personal nature without the corresponding authorisation;
- Not to commit or facilitate – directly or indirectly – infringing acts or acts of unfair competition with the aid of his System;
- Ensure the respect of the legislation related to the privacy protection on his System;
- Ensure the respect of the Law of January 6, 1978 relating to data processing, files and liberties;
- Generally, and if, in particular, it offers a Web site that is open to the public, to respect all the legal obligations in this regard;
- In the case of Virtual Machines in the Shared Infrastructure at OUTSCALE, not to do anything that may technically endanger said Infrastructure, as well as other CLIENT’s Virtual Machines. By express agreement, if OUTSCALE identified operations that were technically malevolent on one or several of the CLIENT’s Virtual Machines (such as “flood”, “scan”, “spam”, “denial of service”, etc.), OUTSCALE could then immediately block the incriminated Virtual Machines, or even all the CLIENT’s Virtual Machines; without prejudice for OUTSCALE to start the procedure for the termination of the Agreement and claim damages;
The CLIENT could not exempt himself from the above-mentioned oligations by arguing that the offence had not been committed by him, but by one of his System’s users; therefore, the CLIENT must take all the necessary measures to prevent such offences from being committed, and to limit the consequences if they were to occur despite the precautions taken.
The CLIENT shall indemnity OUTSCALE in full for any sanction in its regard following a violation by the CLIENT of one of the above-mentioned obligations.
6.2. Obligation of co-operation
The CLIENT shall undertake to cooperate in good faith, with OUTSCALE, in view of the proper performance of the Services, and in particular to pro-actively communicate the information that it has in its possession which could be useful (in particular, any dysfunctions encountered).
Finally, to appoint a Manager with the technical skills and the legal capacity necessary to:
• Authorize / manage the Extensions of scope of the Services,
• Work on the Virtual Machines, and, as the case may be, the Dedicated Infrastructure,
• Manage the CLIENT account and in particular, to ensure that the information for payment is still valid, in order to prevent any delay in payment.
The CLIENT shall ensure the sustainability of this Manager.
Furthermore, if the CLIENT is intending to launch a marketing or communication operation etc., likely to cause a significant increase in his resources use (bandwith, memory or calculation), he shall be responsible – in the context of his duty to cooperate – to inform OUTSCALE prior to launching said operation, and within a reasonable period, in order to avoid this sudden increase in activity being analysed as a safety defect resulting in a possible temporary suspension of its System.
6.3 Obligation of receipt
As a result of the continuous nature of the Services provided and the existence of continuous monitoring made available to the CLIENT, a receipt system shall be setup (“receipt” within the meaning of the French Civil Code) for the Services, called “as you go”.
All the Services provided by OUTSCALE are therefore provisionally received by the CLIENT and accepted by the CLIENT upon use.
The final account of receipt shall automatically be pronounced 48 (forty-eight) hours after the provisional receipt upon default, by the CLIENT to notify OUTSCALE, by an authenticated mail within 48 (forty-eight) hours of the provisional receipt, of the existence of a substantiated reserve affecting the Service.
Said notification must document the reserve formulated: date, time of the start and finish of the unavailability period justified by the tools available on “Cockpit” and “Statuts”.
No reserve may be formulated beyond the period mentioned above. The lack of documentation compliant with a formulated reserve shall be considered as a waiver of the latter.
7 – Outscale Services
In order to enable the CLIENT to use the Services, OUTSCALE shall provide it with a set of Keys to access the Service. In the event whereby a security problem would be detected by one of the parties concerning the keys, the latter shall be returned and a new set shall be provided to the CLIENT by OUTSCALE.
7.1 Services outside of France
The CLIENT may use Services provided by OUTSCALE in different Regions. By default, only the region France is accessible. The activation of the other Regions may be subject to the signature of Order forms, supplementary agreements, etc. in particular to meet the legal requirements specific to each country.
The SLAs of each region may vary, as indicated in the specific Conditions.
By default, OUTSCALE shall provide a set of access Keys for the different Service per Region, unless the CLIENT makes the explicit request to synchronise its accounts on all the regions. In such case, OUTSCALE shall forewarn the CLIENT that the local legislation may enable the State to obtain its Keys and therefore to access its Data in all the Regions, including France. It is for that reason that OUTSCALE advises its CLIENT not to synchronise his accounts and to have a set of access Keys for the Service per Region.
7.2 Beta Services
If the CLENT decides to participate in a test of one of the OUTSCALE Services proposed in beta mode (referred to hereafter as the “Beta Service”), whereas its use of the Beta Service shall be subject to these GTCs, and in particular the stipulations below, for all the issues not settled in the specific conditions of use of the “Beta Service”:
- The user, CLIENT, individual or legal entity, may only participate once in a specific Beta Service, for a limited period of twelve months as from the subscription to the Beta Service, without possible renewal, under penalty of having its CLIENT Account and/or its participation in the Beta Service suspended;
- The user acknowledges to have been informed by OUTSCALE and accepts the fact that the account related to the Beta Service may not subsequently be transformed into an account related to a commercial production offer;
- The user acknowledges more and more that its Data and configuration may be lost in the context of the use of a Beta Service and that, furthermore, its Data may be erased at the end of the Beta Service test period; thus the onus shall be on the CLIENT to import its Data to reinsert it into a commercial production offer when this opportunity arises;
- The user acknowledges that the Beta Service is in beta version and that it is unable to function properly;
- The user is informed that the use of a Beta Service requires a maturity and specific technical skills; in particular the graphic interfaces are often missing with regard to a Beta Service, such that it shall often be necessary to use the APIs of the Beta Service without the latter necessarily being documented;
- The user acknowledges that the use of the Beta Service could expose it to specific risks of Service interruption (for example, via maintenance or increase in batch mode codes) and operational defects;
- The user accepts that the ressources granted or attributable in the context of the Beta Service are limited, or even very limited;
- The user must not use the Beta Service in a production environment, nor with any medical device, dangerous environment or weaponry system;
- OUTSCALE may put an end to the Beta Service at any time, at its convenience;
- The commercial version which could be published following a Beta Service risks being substantially different to the version of the Beta Service and the programs using or functioning with the version of the Beta Service are likely not to work with the initial commercial version or the following commercial versions;
- The user may not receive the credits of the Services provided, as the case may be, by the guarantee of the level of Services subscribed in the event of an interruption of Services or any other problem encountered during the use of the Beta Service, and more generally no SLA shall apply on the Beta Services;
- The user of the Beta Service may only benefit from a limited Support Service in the context of the use of the Beta Service;
- The user of the Beta Service shall undertake to quickly respond to any request for feed-back on his use of the Beta Service formulated by OUTSCALE, by attaching all the information necessary to enable OUTSCALE to rebuild the errors and problems encountered by the user;
- The user of the Beta Service accepts that his feed-back may be freely and gratuitously re-used by OUTSCALE for any finality, including the development and improvement of the Beta Service;
- The user of the Beta Service shall undertake to provide comments upon OUTSCALE’s request which could be used for advertising and marketing purposes;
- The user of the Beta Service shall undertake to transfer to OUTSCALE any intellectual property right inherent to feed-back and opinons given within the broadest meaning permitted by the law, with the consideration of this transfer being the right to use the Beta Service;
- The user of the Beta Service acknowledges that any information relating to the use of the Beta Service, including feed-back and opinions, are “confidential information” for OUTSCALE, as defined herein, and may not be either disclosed to a third party or used for a purpose other than to provide feed-back to OUTSCALE;
- The Beta Service is provided “AS IT STANDS’’ and without any guarantee of any kind;
- OUTSCALE shall exclude the application of any guarantee, including the implicit guarantees of peaceful enjoyment, merchantable quality and adequation for a particular purpose, within the limits authorized by the applicable law;
- OUTSCALE’s liability in the context of its Beta Service shall be limited to the payment of damages, the amount of which shall not exceed 350 (three hundred and fifty) euros per CLIENT of the Beta Service;
- Given all the above-mentioned constraints, OUTSCALE shall not invoice the use of the Beta Service to its CLIENT.
7.3 Professional Services
The CLIENT may subscribe for Professional Services with OUTSCALE, in particular, with the aim of acquiring specific skills to enable him to migrate his information system to Cloud Computing.
A Proposal for Professional Services will be sent by OUTSCALE to the CLIENT which must accept by signing an Order Form referring to these Services.
Unless otherwise specified, the Professional Services are governed globally by the provisions of the Proposal for Professional Services, the Order Form and these General Terms and Conditions, and in particular the following conditions:
7.3.1 CLIENT Obligations
The CLIENT alone is responsible for the definition of the Project for which Professional Services are ordered, for expressing its needs and drawing up the related specifications. When the Project involves one or more service providers in addition to OUTSCALE, the CLIENT alone is responsible for project management and, in particular, for coordinating its service providers.
The CLIENT undertakes to communicate any information or documents in its possession to OUTSCALE, or, as applicable, facilitate consultation thereof, such as are necessary to OUTSCALE for the performance of the Professional Services.
Throughout the duration of the Professional Services, the CLIENT shall supply OUTSCALE with any reasonable assistance with the performance of the Professional Services. The CLIENT shall inform OUTSCALE regularly concerning any changes in its needs and shall report to OUTSCALE any elements which it considers might have an impact on or compromise the correct performance of the Professional Services.
The CLIENT undertakes to appoint a single technical contact -defined as the CLIENT’s Technical Contact. In the event of a change in the CLIENT’s Technical Contact, the CLIENT expressly undertakes to inform OUTSCALE beforehand, providing five (5) working days’ notice.
The CLIENT must take into account the advice and recommendations provided by OUTSCALE. The CLIENT shall take all measures to prevent any damage that it could incur as a result of damages to files, memory, documents or any other elements which might be impacted by the performance of the Professional Services.
7.3.2 OUTSCALE Obligations
OUTSCALE shall take due care with the performance of the Professional Services and guarantees that they will be carried out professionally, in accordance with the terms and conditions of these GTC.
As the Professional Services are supplied at the express request of the CLIENT, OUTSCALE is only subject to a best efforts obligation (the French “obligation de moyens”) for the performance of its obligations.
Throughout the duration of the Professional Services, OUTSCALE shall do what is necessary to pass on to the CLIENT, in due time, any information that might be of interest to it and to report to it any elements which it considers could compromise the correct performance of the Professional Services.
7.3.3 Financial conditions relating to the Professional Services
The Professional Services supplied by OUTSCALE under the Agreement shall give rise to remuneration on the basis of the prices expressly indicated in the Proposal for Professional Services and its Order Form. In the event of a cost-plus contract, the monthly invoicing will be based on an itemised statement of services signed by the Parties.
Unless otherwise specified in the Proposal, the Professional Services are subject to a down payment of thirty per cent (30%) at the time of the CLIENT order; payment thereafter is on the basis of the progress of the services (corresponding to 50% of the price) with the remaining 20% upon acceptance of the Project. The use of the Project results by the CLIENT constitutes acceptance of the Project by the latter.
Upon signature of the Order Form, the CLIENT transmits its bank details to OUTSCALE and signs the direct debit authorisation so that OUTSCALE can withdraw the amounts due in relation to the Professional Services on the due dates, in accordance with the payment conditions specified in the Proposal for Professional Services and the corresponding Order Form.
Scalebox is an OUTSCALE offer which enables the CLIENT to store its local files (i.e. files from its computer) on a ‘virtual’ hardrive, the Scalebox, which is operated by OUTSCALE on its infrastructure.
A CLIENT may subscribe to the Scalebox Service even if it does not have a Virtual Machine at OUTSCALE.
The maximum volume available on the Scalebox, as well as the SLA applicable, depend on the offer subscribed by the CLIENT. If there is no SLA indicated in the offer, no specific quality of Service commitments shall apply.
The Scalebox offer is tacitly renewable from month to month.
As an exception to the article “Termination of the Agreement”, the conditions for termination of the Service are those defined below:
(i) Termination of the Scalebox Service at the CLIENT’s initiative
The CLIENT may terminate its Scalebox offer at any time by sending an email to firstname.lastname@example.org indicating its identity and email adress as well as the reference of its Scalebox Service order.
OUTSCALE will acknowledge receipt of this termination by return email.
The termination will take effect ten (10) clear days after the acknowlegement of receipt by OUTSCALE.
In the event of termination of the Scalebox Service by the CLIENT:
- The month of the termination will be invoiced pro rata temporis up until the effective termination date,
- The CLIENT must imperatively recover all its files archived on its Scalebox and store them elsewhere, before the effective termination date. These files will effectively be destroyed by OUTSCALE as of the date of effective termination (at midnight, Paris time).
(ii) Termination of the Scalebox Service at OUTSCALE’s initiative
OUTSCALE may terminate the Scalebox Service:
- If the use made thereof by the CLIENT does not comply with these GTC (in particular, the article “CLIENT Obligations”) and/or if the CLIENT does not comply with the financial conditions for the Service,
- At its convenience, without any error having been committed by the CLIENT, at any time on condition that the period of notice specified below is respected and without any indemnity being due,
OUTSCALE shall notify the CLIENT of the termination by email, indicating the effective termination date, i.e.:
- in the event of termination at the convenience of OUTSCALE, the effective date will be the last day of the second month following notice of termination,
- in the event of termination following a breach by the CLIENT and/or failure to comply with the financial conditions, the effective date will be ten (10) clear days after the notice of termination.
The CLIENT must imperatively recover all its files archived on its Scalebox and store them elsewhere, before the effective termination date. These files will effectively be destroyed by OUTSCALE as of the date of effective termination (at midnight, Paris time).
8 – Service Level Agreement
8.1 – Availability commitments
In addition to the proven technology at OUTSCALE, the Service Provisions are based on materials, the suppliers of which, world renowned, shall guarantee the functioning (via their MTBF and RTO indicators, etc.).
The SLAs shall depend on the products and Services in question and are presented individually in the appendix attached hereto.
The scheduled maintenance tasks shall be taken into consideration for the availability time, subject to OUTSCALE having been apprised at least two full days in advance.
Any task, the aim of which shall be to protect the client Data or infrastructure against an exceptional major risk such as acute security vulnerability or a massive cyber attack, shall be taken into consideration for the availability time.
The CLIENT may not assert the above-mentioned commitments if he has not followed OUTSCALE’s recommendations such as summarized on the OUTSCALE Wiki (wiki.outscale.net), concerning the use of the Service Provisions, as the failure to comply with the recommendations shall be considered as a fault on the part of the CLIENT.
The Service Quality commitments are not applicable for the Provisional Systems insofar as these Services have not been launched.
In the event whereby OUTSCALE were to fail to comply with its availability commitments, without any fault on the part of the CLIENT, the latter would be entitled to terminate the Services and obtain credits as indicated in 8.3.
8.2 – Localization commitment
OUTSCALE shall undertake that the CLIENT’s Data stored in its Infrastructure shall never leave its Region of origin as a result of its own doing. The CLIENT shall remain free to copy or displace its Data to another Region, with OUTSCALE’s assistance as the case may be, but this copy or displacement shall always be at the CLIENT’s initiative.
For the application of Article 8.3 this localization commitment shall be considered over monthly periods, with the first period starting on the date of entry into force of the Agreement.
8.3 – Termination of the Service Provisions in the event of failure to comply with the SLA / Penalties
OUTSCALE shall fail to comply with its commitments if:
(i) the points 8.1 (including Appendix A) or 8.2 are not respected;
(ii) this non-respect is not related to a fault on the part of the CLIENT;
(iii) the CLIENT is directly concerned by this non-respect as one of OUTSCALE’s CLIENTS and not for example, as a user of a Service based on OUTSCALE but provided by a third party.
Whether or not OUTSCALE has failed to comply with its Service quality commitments shall be assessed over a sliding period defined in the SLAs as well as Article 8.2 concerning the localization commitment.
The down time counted is only the time that has been subject to a reserve notice in accordance with Article 6 of the GTCs.
If it is proven that OUTSCALE had failed to comply with one or several of its commitments of availability or localization under Articles 8.1 or 8.2, the CLIENT may terminate the SERVICE PROVISIONS or, at its convenience, request the application of penalties.
The CLIENT shall have a period of 5 (five) full days as from the end of the given period to notify OUTSCALE, by registered letter with acknowledgment of receipt: either (i) the termination of the Agreement or (ii) the application of penalties which are, by express agreement, flat-rate.
In both cases, the CLIENT must attach to his notification:
• The CLIENT calculation showing that OUTSCALE had failed to comply with its Service Quality commitments over the period in question, for the Service Provisions not finally approved,
• The proof that OUTSCALE had failed to comply with its localization commitments under Article 8.2,
• The notified reserves references (within the meaning of Article 6 of the GTCS) in support of his calculation.
If the CLIENT had requested the application of penalties, and if he has correctly documented and proven OUTSCALE’s non-compliances, he shall benefit from a credit to offset against the price of the Service Provisions, valid for a period of 1 (one) year, the amomunts and calculation methods of which are defined in Appendix B.
The fact that the CLIENT does not exercise the termination/application of penalties option mentioned above shall be considered as a final waiver of the latter for the benefit of his notified reserves, which shall be deemed never to have existed.
8.4 – Interpretation of the SLAs
If a contractual Service Quality commitment is elevated/minimal (for example: an availability commitment of 99.99999 %), it shall result that the discrepancy between this contractual commitment and the maximum/minimum commitment theoretically possible (in the example 100 %) shall be minimal.
Nonetheless, under no circumstances may the contractual commitment be rounded up, and the value such as literally mentioned in the Agreement must be adhered to (in the example: 99.99999 %), as this corresponds to OUTSCALE’s and the CLIENT’s common intent.
It being specified that all the modern systems (spreadsheets, calculators, etc.) have a sufficiently accurate calculation for the application of this interpretation rule.
9 – Extension of the Scope of the Service Provisions
One of the innovations of the OUTSCALE offer is to enable the CLIENT to subscribe to additional Virtual Machines or increase the allocated resources (for example bandwith) for limited periods – for example, to meet an exceptional operation for the CLIENT –; as it concerns CLIENTS in a Dedicated Infrastructure, they may subscribe, as the case may be, for additional Virtual Machines within the Shared Infrastructure.
The conditions for the Extension of scope, automatic in the event of a lack of resources detected by the Infrastructure, in particular via the API or after authorization from the CLIENT Manager (or one of them if there are several or the Manager specifically appointed by the CLIENT to handle this issue if the CLIENT has appointed one) are defined in the Specific Conditions; the same shall apply for the financial conditions of these Extensions of scope, which are generally invoiced per hour for the additional Virtual Machine, which gives OUTSCALE more flexibility.
10 – Duration of the Service Provisions
The duration of each Service Provision is defined in the Specific Terms and Conditions. Failing this, the Service Provisions are concluded for an unlimited period of time and must be terminated in accordance with the article “Termination of the Agreement” in these GTC.
Unless otherwise specified in the Specific Terms and Conditions, the basic billing unit is billing per second. Services are invoiced on the basis of time devoted to the services, rounded up to the next second. As such, when a client’s monthly services represent 1203.25 seconds, it is charged for 1204 seconds.
11 – Intellectual Property
By express agreement, the Agreement shall not include any assignment or transfer of intellectual or industrial property right or know-how on the part of either party.
Therefore, the CLIENT shall remain the sole owner of his System, and OUTSCALE shall remain the sole owner for all the elements of its Infrastructure and all its tools (in particular, the administration tools and the APIs).
12 – Suspension of the Services at the request of an authority or when the CLIENT makes an illicit use or use which threatens the security of the resources supplied by OUTSCALE
OUTSCALE, if it has identified malicious operations or operations which threaten the security of its Infrastructure or that of third parties (such as ‘flood’, ‘scan’, ‘denial of service’, etc.) originating in the resources it supplies to the CLIENT (such as Virtual Machines, Object Storage Service, Scalebox, etc.), or at the first demand of an authority (in particular judicial) involving the resources of the CLIENT, or each time the law obliges it, may block said resources and suspend the Services.
Once they have been blocked, the CLIENT will no longer have access to these resources (or to the related Data) and, from a network point of view, they will be isolated from the rest of the Infrastructure.
If the authority which requested the block and the law oblige OUTSCALE to keep the resources blocked for a certain time and/or until a decision is reached and/or any other event, OUTSCALE will comply.
Otherwise, OUTSCALE may:
(i) keep the resources blocked until the reasons for the blockage have disappeared,
(ii) at any time, and without unblocking the resources, notify the CLIENT by email of the termination of the Agreement within 10 (ten) clear days, the CLIENT then being required imperatively to ask the OUTSCALE “Customer Service” to return the Data to it in the conditions set forth in article 18.2 if it wishes to recover the Data, failing which said Data will be irrevocably destroyed.
The CLIENT may also serve notice of immediate termination to OUTSCALE by sending an email to email@example.com.
The termination of the Agreement is without prejudice to any damages which OUTSCALE may claim from the CLIENT in the event of the breach of its commitments.
In such case, the Service Provisions shall be invoiced notwithstanding the suspension of the Services, except in the case whereby OUTSCALE had evidently wrongfully suspended the Service provision.
13 – Liability – Force majeure – Insurance
13.1 OUTSCALE’s liability
For all intents and purposes, it is stipulated that this Article shall not apply to the CLIENT’s liability, in particular for any sanction inflicted upon OUTSCALE, following the illegality of all or part of the CLIENT System (as referred to in the Article “CLIENT Obligations”, in particular, for pedophilia, incitement to racial hatred, infringement, etc.)
OUTSCALE shall indemnify the CLIENT – for the harm for which the latter must provide the proof –, in the event of a non-compliance by OUTSCALE with its obligations under the Agreement, and within the limit (liability threshold) of 2 (twice) the monthly amount invoiced to the CLIENT for the Services at the origin of OUTSCALE’s responsibility, if OUTSCALE’s non-compliance lasted for more than 15 (fifteen) days; if the
non-compliance lasted for 16 (sixteen) days or more, the threshold shall be increased to 3 (three) times the monthly amount invoiced for the defaulting Service Provision.
By express agreement, OUTSCALE shall decline any liability for indirect and/or immaterial damages, such as: operating loss, loss of turnover, loss of data or corruption of the application, disorganization, impairment of the CLIENT’s image, etc.
None of the limits mentioned above shall apply in the event of impairment to individuals’ integrity.
13.2 Force Majeure
OUTSCALE’s liability, in the event of non-compliance with any of its obligations under the Agreement, shall not be incurred when this non-performance results from an event which is of a force majeure nature, as defined in the previous paragraph.
Shall be deemed as force majeure events those that the law qualifies as such, but also all the acts of IT criminality (subject to OUTSCALE having setup a reasonable security policy), the major dysfunctions of the Internet network and the electrical dysfunctions.
If the CLIENT intends to operate critical or strategic data (for example, data for invoicing, salary payments, R&D elements etc.) on its System hosted on an OUTSCALE Virtual Machine, it shall be the CLIENT’s responsibility to subscribe to a specific insurance for loss of data.
In such case, the CLIENT must contact OUTSCALE in order to negotiate an application agreement presenting more appropriate characteristics.
14 – Financial Conditions
14.1 General Principles
- The price of the Service Provisions shall always be defined in the Specific Conditions or, failing this, the OUTSCALE public prices shown on its website shall apply;
- Invoices are issued monthly in arears for Services on demand and in advance for reserved Services (reserved instances, etc.);
- Invoices are payable in cash;
- The minimum monthly invoicing corresponds to one hour per type of Virtual Machine used,
- Invoices may be debited from the CLIENT’s bank account or bankers’ card;
- The prices shall be listed, excluding taxes, as the VAT and any other taxes which may apply shall be in addition to the price;
- In the event of late payment, a flat-rate indemnity for recovery costs of an amount equal to 40 euros, provided by Articles L 441-3, L.441-6, 12th paragraph and D.441-5 of the French Commercial Code, shall be due as from the first day of late payment, if the CLIENT is a professional. Late payment penalties shall also be due as from the first day of late payment prorata temporis at an annual rate equal to 3 times the legal interest rate. No discount shall be granted in the event of an early settlement;
- The price of all the Service Provisions may be revised at any time in accordance with the “Price Revision” clause below.
14.2 CLIENT Account
The provision of Services shall assume that the CLIENT has beforehand (i) opened a CLIENT Account (ii) supplied OUTSCALE with the information necessary for invoicing and that this information is accurate and up-to-date.
The opening of the CLIENT Account shall be made on-line at the same time as the acceptance of the Agreement. As soon as the CLIENT has provided the valid bank details to OUTSCALE, the account shall be opened and the Agreement accepted.
The CLIENT Account is accessible to the CLIENT Manager(s) via an administration interface and subject to knowing the secret code (it is the same code as that used by the CLIENT Manager(s) for the administration of the Virtual Machines); the CLIENT Manager(s) shall be responsible for the management of the CLIENT Account.
The CLIENT Account shall be debited monthly or when a threshold amount is reached depending on the use of the Services by the CLIENT, according to an hourly or monthly or per-second basis in accordance with the indications made in the Specific Conditions.
The CLIENT accepts that OUTSCALE sends electronic invoices corresponding to the Services related to its CLIENT Account.
A CLIENT Account may, upon the CLIENT’s request, owner of this first CLIENT Account, be related to another CLIENT Account, subject to OUTSCALE’s acceptance of this attachment and by the owner of this second CLIENT Account. The Services for the first CLIENT Account shall be invoiced to the second CLIENT Account for as long as both CLIENT Accounts shall be related. The CLIENTS who hold two related CLIENT Accounts accept to be financially jointly and severally liable for all the Services attributable under the first CLIENT Account.
It shall be the CLIENT’s responsibility to ensure that the bank details and billing information provided to OUTSCALE are always up-to-date, as failure to do so shall carry the risk of a suspension of Services and, as the case may be, the termination of the Agreement.
With regard to offers concerning the Dedicated Infrastructure, it shall be possible to derogate from these financial conditions under the application agreement.
14.3 Revision of the Price
The prices indicated in the Agreement are revised on the date of anniversary of the entry into force of the latter, by application of the formula below, according to the latest indexes known on the date of revision.
P = P0 x (0.30 x S/S0 + 0.70 x ElecVert/ElecVert0)
It being specified that:
– P is the price after revision
– P0 is the price listed in the Agreement, or resulting from the previous revision of the Agreement,
– S0 is the initial value of the Syntec index, or the value taken into consideration during the previous revision,
– S is the last known value of the Syntec index on the date of revision
– ElecVert0 is the initial value of the index of the base green tariff A5 TLU EDF of electricity or the value taken into consideration during the previous revision,
– ElecVert is the last known base green tariff value A5 TLU EDF of the electricity on the date of revision.
In the event of the eradication of one of the indexes and upon failure to reach an agreement on a new index, express competence shall be attributed to the Presiding Judge of the Nanterre Commercial Court to define a new index that he shall substitute for the index that has been eradicated in the revision formula.
This index shall be chosen in such a way that it shall be as close as possible to the index that has been eradicated and that it respects the intent of such index.
15 – Transfer of Services
OUTSCALE may assign, transfer, sub-contract etc. – in full or in part – the Services which were conferred upon by the CLIENT, to a PROVIDER with equivalent skills and subject to apprising the CLIENT.
16 – Confidentiality
OUTSCALE and the CLIENT acknowledge that all the data, calculations, specifications, software and other knowledge or information of a technical, industrial, financial or commercial nature, which they shall exchange in the context of the Services, are of a strictly confidential nature.
Consequently, OUTSCALE and the CLIENT shall undertake:
- not to communicate such information to anyone whomsoever, without written authorization,
- as well as to take all the appropriate measures with regard to such information, to avoid and prevent its disclosure,
- not to directly or indirectly make any other use of this information than the processing given in the context of the Services,
- to limit the communication of this information to the sole members of the personnel who must be informed in the context of the Services and to guarantee the respect of these commitments as necessary,
- upon the term of the Services, or as the case may be, the early termination, to promptly return all the elements and documents constituting this information in their possession and not to keep any copy, extract or reproduction in any form whatsoever.
The above-mentioned commitments shall last as long as said information shall not become part of the public domain, and in any event, at least for 5 (five) years after the end of the Services.
Nevertheless, these confidentiality obligations shall not apply to information which was already known to the public at the time of its communication or which would subsequently become known, without any fault on the part of the receiving party.
Furthermore, this confidentiality clause shall not prohibit OUTSCALE from quoting the CLIENT in reference.
17 – Termination of the Agreement
17.1 Termination at the CLIENT’s initiative
The CLIENT may terminate the Agreement according to the conditions set forth in the Specific Conditions or, if there are no indications in the Specific Conditions, according to the procedure described below.
The CLIENT may terminate the Agreement, at any time, by sending an email to firstname.lastname@example.org indicating its identity, its email adress and the references of the Services to be terminated.
OUTSCALE must acknowledge receipt of this termination by return email.
The termination will take effect ten (10) clear days after the acknowlegement of receipt by OUTSCALE.
Before the effective termination date, the CLIENT must imperatively recover all its Data hosted at OUTSCALE, as indicated in the article “Recovery of its Data by the CLIENT / Conservation of data by OUTSCALE”.
17.2. Termination at OUTSCALE’s initiative
(i) Termination for non-compliance with the financial conditions by the CLIENT
If the CLIENT fails to comply with the financial conditions of the Agreement, OUTSCALE shall notify the Client by email that it has breached the financial conditions and that it must remedy said breach within 7 (seven) clear days:
- starting from the day after the due date in the event of late payment,
- starting from the date on which OUTSCALE notices that the CLIENT’s bank details are no longer valid,
- starting from the date on which the CLIENT’s banking establishment refuses to make payment,
- starting from the date on which OUTSCALE notices the breach for any other breaches.
If the CLIENT has not remedied the breach within the 7 (seven) clear days allotted, OUTSCALE shall issue a second reminder by email to ask the CLIENT to remedy the breach(es) of the financial conditions within 7 (seven) clear days.
After this second reminder, OUTSCALE may suspend the Services at any time and block the CLIENT’s access to its resources (such as Virtual Machines, Object Storage Service, etc.) including the related Data.
If the second reminder has produced no effect within the given timeframe, OUTSCALE may send notice of termination of the Agreement to the CLIENT by email, automatically and without the need for a judge, without prejudice to any damages which may be claimed. OUTSCALE must indicate the effective termination date which will be ten (10) clear days following the notice of termination.
If there are several Agreements in progress between the CLIENT and OUTSCALE – because the CLIENT has subscribed to several Specific Conditions applicable to indepedent Services -, and unless otherwise indicated in the termination notice, all the Agreements in progress will be terminated at the same time in the event of termination for non-compliance with the financial conditions of an Agreement by the CLIENT.
Before the effective termination date, the CLIENT must imperatively recover all its Data hosted at OUTSCALE, as indicated in the article “Recovery of its Data by the CLIENT / Conservation of data by OUTSCALE”.
(ii) Termination for breach of the CLIENT’s obligations other than non-compliance with the financial conditions
In the event that the CLIENT breaches its obligations under the Agreement, OUTSCALE shall serve formal notice to the CLIENT, by email, to remedy said breach within 7 (seven) clear days.
After this formal notice, OUTSCALE may suspend the Services at any time and block the CLIENT’s access to its resources (such as Virtual Machines, Object Storage Service, etc.) including the related Data.
If this formal notice has produced no effect within the given timeframe, OUTSCALE may send notice of termination of the Agreement to the CLIENT by email, automatically and without the need for a judge, without prejudice to any damages which may be claimed. OUTSCALE must indicate the effective termination date which will be ten (10) clear days following the notice of termination.
If there are several Agreements in progress between the CLIENT and OUTSCALE – because the CLIENT has subscribed to several Specific Conditions applicable to indepedent Services -, and unless otherwise indicated in the termination notice, all the Agreements in progress will be terminated at the same time in the event of termination for breach of its obligations by the CLIENT.
Before the effective termination date, the CLIENT must imperatively recover all its Data hosted at OUTSCALE, as indicated in the article “Recovery of its Data by the CLIENT / Conservation of data by OUTSCALE”.
(iii) Termination of the Agreement at the convenience of OUTSCALE
OUTSCALE may terminate the Agreement at its convenience without any error having been committed by the CLIENT, at any time and without having to pay any indemnity, subject to providing notice of one (1) month.
In this case, OUTSCALE will send notice of termination to the CLIENT, by email, indicating the reference of the Services to be terminated as well as the effetive termination date which will be one (1) month after the termination notice.
18 –Recovery of its Data by the CLIENT/Conservation of data by OUTSCALE
18.1 Recovery of its Data by the CLIENT if he has access to its ressources (Services not suspended)
When the Agreement is terminated, for whatever reason and irrespective of whether the initiative for termination lies with the CLIENT or with OUTSCALE, the CLIENT must imperatively recover all its Data hosted at OUTSCALE and store them elsewhere before the effective termination date.
Indeed, as of the effective termination date (at midnight, Paris time): (i) the CLIENT will no longer have access to its Data, and (ii) said Data may be irrevocably destroyed by OUTSCALE (except for data mentioned in aritcle 18.3).
For example, if the effective termination date is May 3, the CLIENT must imperatively have recovered all its Data before midnight on the 3rd of May, failing which they will be deleted and the CLIENT will never be able to recover them.
The fact that the termination date is not a working day does not postpone the termination.
18.2 Recovery of its Data by the CLIENT if he has not access to its ressources (Services suspended)
When the Agreement is terminated, for whatever reason and irrespective of whether the initiative for termination lies with the CLIENT or with OUTSCALE , the CLIENT if he wishes to recover its Data and since he has no longer access to its ressources (Such as Virtual Machines, Object Storage Service, etc.) and therefore can not retrieve them itself, must imperatively order a Data retrival Service from OUTSCALE before the effective termination date.
The CLIENT can not order this Data retrival Service if it is not up to date with its OUTSCALE invoices. The CLIENT must therefore pay all amounts owed to OUTSCALE before the effective termination date.
The Data retrival Service order is made by e-mail to the OUTSCALE “Customer Service” who issues a quote. If the CLIENT accepts the quote, the CLIENT’s Data are retrieved by OUTSCALE and then sent to the CLIENT upon payment of the price of the Data Recovery Service.
As of the effective termination date (at midnight, Paris time) CLIENT’s Data may be irrevocably destroyed by OUTSCALE (except for data mentioned in aritcle 18.3).
For example, if the effective termination date is May 3, the CLIENT must imperatively have ordered the Data retrival Service before midnight on the 3rd of May, failing which Data will be deleted and the CLIENT will never be able to recover them.
The fact that the termination date is not a working day does not postpone the termination.
18.3 Conservation of data
In the event of the termination of the Agreement, for whatever the reason, the CLIENT Data will be deleted as indicated in articles 18.1 and 18.2, except for certain connection information and CLIENT Account data which will be kept for a reasonable period of time, in order for OUTSCALE to comply with legal obligations in this respect, and to enable it to manage any claims by the CLIENT.
The CLIENT is informed and recognises that OUTSCALE is not able to proceed with the complete deletion of all the Data that the CLIENT may have shared with other clients, in particular by means of OMI sharing or disk images, as long as another client is using the shared data and that it is up to the CLIENT not to share confidential or sensitive information or information belonging to third parties, or personal Data with other clients, except to share them deliberately with other identified clients and solely while complying with the applicable legislation and third party rights, as applicable.
19 – Non Sollicitation of Personnel
During the entire period of the Services, and for a period of 12 (twelve) months following the cessation of the latter, regardless of the cause, the CLIENT shall undertake not to make any employment offer, service, consulting, etc. to any of the members of the personnel at OUTSCALE, unless there is a written agreement from OUTSCALE.
In the event whereby the CLIENT would not respect this obligation, he shall undertake to compensate OUTSCALE by paying it a flat-rate and final indemnity equal to 12 (twelve) months of gross remuneration of the personnel prolifigated.
20 – Reversibility of the Services
By express agreement, the Services shall not include a reversibility obligation (i.e, assistance to the CLIENT so that he can migrate his System to another provider).
The CLIENT – solely in charge of his System – must do his utmost to facilitate this operation as necessary (which implies, in particular, the setup of a rigorous documentation: Reversibility specifications) and the setup of reversibility plans.
Nevertheless, OUTSCALE may propose a consultancy mission in this regard, in the context of a specific agreement, to be negotiated.
21 – Validity of electronic means for notifications issued within the scope of the Agreement
Except in cases where these GTC specify the sending by OUTSCALE of an Electronic registered letter, all notifications issued within the scope of this Agreement, and in particular formal notice and reminders sent to the CLIENT, shall be sent by OUTSCALE by simple email.
The time and the date indicated on the OUTSCALE server from which the email was issued shall be considered as proof between the CLIENT and OUTSCALE.
It is understood that the CLIENT, whatever its status – and, in particular if it is a not a professional –, agrees to use email and Electronic registered letter as means of notification.
If the CLIENT does not accept email and Electronic registered letter as means of notification within the scope of the Agreement, it must refuse these GTC and not enter into an Agreement with OUTSCALE.
22 – Disputes and Litigation
22.1 Language of the GTC
These GTC exist in French and in English. In the event of any contradiction between the two versions, the French version shall prevail.
22.2 Comptent Courts / Applicable law
Notwithstanding plurality of defendants, the introduction of third parties, etc. any disputes in connection with the formation, construction or performnace of these general terms and conditions shall be submitted to the commercial court of Nanterre and shall be governed by French law.
Appendix A (“SLAs”) to the General Conditions of Sale – version 2016.11.a
The SLAs are sometimes only applicable upon the condition that the CLIENT deploys his Services on all the availability Areas that exist in the Region. In the event whereby, albeit possible, the CLIENT decides not to deploy in all the availability Areas of the Region, he may not request the application of the SLAs. These SLAs are marked with an asterisk (*).
This limitiation shall not concern either the APIs provided by OUTSCALE or the Infrastructure setup and managed by OUTSCALE and therefore OUTSCALE’s liability. For the latter, the SLAs generally apply regardless of the type of deployment chosen by the CLIENT.
These guarantees shall enable OUTSCALE to commit itself on the following SLAs suivants on a 24/7 basis:
SLA1 – Service: “Storage Service Facility”
- The Sustainability of storage of an Object on a given Region is guaranteed at 99.9999999999%* per year if these objects are distributed across all the availability Areas that in exist in the given Region,
- API’s Availability provided by OUTSCALE and enabling the publication and use of the CLIENT’s objects by the latter is 99.97 %per year,
- The availability of the Web portal (http/https) provided by OUTSCALE and enabling the various users to access stored objects is99.99%* per year for the objects deployed on all the availability Areas of the Region and 99.98% for the others.
This Sustainability shall be understood subject to use that is in accordance with the rules of practice applicable to the Services and outside of any alteration of data, whether voluntarily or not, the origin of which results from an action on the part of the CLIENT. It is in particular applicable only in the event whereby the CLIENT uses all the availability Areas that exist in the region.
The Object storage, as its name suggests, shall not be used in block mode (for example, for an active database). The use of an Object storage in block mode via the technical circumvention means (for example, FUSE under Linux), is not a use within the rules of practice applicable to Object storage and any incident related to this use shall not be covered by these SLAs.
SLA2 – Service: “Continuous storage service”
- The availability of a volume is guaranteed at 99.7% per month. By default, a volume shall only be available only on its original availability Area,
- The availability of a Snapshot is 99.7% per month. A Snapshot is available throughout the Region,
- The Sustainability of a Snapshot shall be equal to that of an object under Object storage as the Snapshots are finally retained in the Object’s storage and shall therefore benefit from all the related guarantees. Nonetheless, this guarantee shall be acquired only24h after their creation,
- For the instances of IOPS guarantee, OUTSCALE shall undertake to provide the number of IOPS subscribed, for blocks of 4 ko, at least 90% of the time over a month.
The Sustainability of a volume shall not be guaranteed as it is an active storage in block mode which may be impacted by any problem of sudden cessation of a Service. For example, the crash of a physical element of Infrastructure at OUTSCALE may give rise to the cessation of a resource such as a Virtual Machine and the continuous corruption of a storage volume which was suddenly ceased in an inconsistent manner. Furthermore, an order “terminated” or “force-stopped” may cause the sudden stoppage of the Virtual Machine resource and thereby corrupt the related volume resources.
OUTSCALE’s liability may never be incurred on the consistency problems; it is the CLIENT’s responsibility to ensure that it has duly carried out all the necessary safeguards in order to protect its data and that it had setup architectures according to the rules of practice in order to be able to ensure a consistent level of volumes.
SLA3 – Service Provision “Non-continuous storage service”
The non-continuous storage service shall not offer ANY guarantee. OUTSCALE shall inform the CLIENT that the Service may stop or incur a dysfunction at any time, and that it shall be the CLIENT’s responsibility to relaunch its Virtual Machine resource in the event whereby the default of this Service has an impact on its availability.
This Service must only be used for specific reasons such as for temporary and non-critical storage (Swap, tempfs, etc.) and especially not for data such as that of the production to be retained, which must be stored on other types of more sustainable storage.
SLA4 – Service “Customized Service for the provision of Virtual Machines”
– The individual Availability of an availability Area is 99.7% per month,
– The individual Availability of a substantive element of the Infrastructure is 99.8% per month,
– The Availability of a resource (Virtual Machine, etc.) is 99.8%* per month,
– The Availability of a control API Service is 99.9% per month.
In the event whereby a substantive element of OUTSCALE’s Infrastructure were to cause the cessation of a CLIENT resource, for example, the stoppage of a physical server at OUTSCALE causing the stoppage of a CLIENT’s Virtual Machine, by default the CLIENT’s resource is in a “blocked” state in order to prevent its relaunching from causing additional damage (loss of data, corruption, etc.). It shall be the CLIENT’s responsibility to supervise his resources and relaunch them if required. The time necessary for the CLIENT to do this shall not be counted for the unavailability calculation of a resource.
The time to be counted in the unavailability of a resource is the time following the cessation of the resource, that the CLIENT is unable to relaunch it.
Furthermore, for the SLA to apply, it shall be necessary for the CLIENT to prove that resources equivalent to the defaulting resource were deployed in all the availability Areas of the Region and that the Service was nonetheless unable to be rendered as a result of OUTSCALE.
OUTSCALE shall also inform the CLIENT that any abnormal use of its Infrastructure and, in particular, in the event of an overload of its control APIS (hammering), counter security measures could automatically be activated and block the order API access or some of OUTSCALE’s Services. In such case, it does not concern an unavailability but a safeguard procedure of the OUTSCALE Infrastructure, and the CLIENT may not account for this under the unavailability.
SLA5 – Service “Secured network provision to the Internet”
OUTSCALE is up-to-date concerning its Internet connections. In particular, it uses serveral access providers and the protocol BGP4 to ensure redundancy. This protocol may give rise to untimely route alterations that are beyond OUTSCALE’s control, but, which in general, enable an availability of access to be guaranteed.
In the event of an incident, the first 2 minutes are never taken into account as the convergence time for the protocol BPG4 is 90 seconds. The availability calculation shall deduct 2 minutes per incident.
- Internet access availability: 99.999%* per year
In the event of a Cyber attack, in particular in the event of a distributed denial-of-service attack (DDoS), OUTSCALE may modify its internet routing configuration to mitigate at a maximum this attack and protect its Infrastructure. If it is the CLIENT’s IP which is targeted by the attack, OUTSCALE may use the BGP community of the “blackhole” type to prohibit upstream its suppliers from any flow to an IP that has been attacked in order to protect the other CLIENT’s resoures but also other clients from OUTSCALE as well as its Infrastructure.
OUTSCALE shall protect its infrastructures via several layers of Firewall in its high-end state and its applications, including its APIs via the WAF (Applicative Firewalls).
OUTSCALE shall encourage the CLIENT to do the same, in particular, by using OMIs WAF, available from OUTSCALE but also via the configuration of the security groups via the control API. OUTSCALE, by default, shall filter any flow going to public IPs for the CLIENT and it is for the CLIENT to open the flows that he needs. OUTSCALE insists that the CLIENT opens its flows at a minima and in particular does not open the administrative flows SSH (port TCP 22) and RDP (port TCP 3389) to the entire Internet (subnet 0.0.0.0/0).
- Availability of virtual firewalls in charge of the security groups : 99.8% per month,
- Availability of the control API Service: 99.9% per month.
SLA6 – Service Provision “Intra-Cloud network supply service”
The Intra Cloud is secured in the same manner as the Internet network via the security groups. The CLIENT is apprised that if he should decide to override the security groups via the control API for his internal resources, the configuration of the security groups SHALL NOT be applied.
The latency in the internal network shall depend on a number of parameters, in particular the proximity of the availability Areas. The redundancy of a Region is in balance between the geographical discrepancy of the availability Areas and the maximal latency that may be assumed by the multi Areas applications.
– Availability of the internal network: 99.99 % per year,
– Inter-resource maximal latency (outside of Object storage): 10 ms,
– Maximal latency towards or from the Object storage: 200 ms.
SLA7 – Service Provision “Internet Provision Services (DNS, NTP) and the metadata Service of the Cloud”
The CLIENT shall be informed by OUTSCALE that its Systems are protected against their intensive use that could result in a service denial. Any automatic counter-measure activation due to an abusive use by the CLIENT and resulting in the unavailability of the Service for the latter may not be recorded as such.
- Availability of the Services DNS, NTP, DHCP: 99.8% per month
- Availability of the metadata Services: 99.8% per month
SLA8 – Service Provision “Service for the distribution of charge upon request”
- Availability of virtual load balancers: 99.8% per month,
- Availability of control API service: 99.9% per month.
APPENDIX B: Penalties associated with the SLAs of Appendix A of the General Terms and Conditions of Sale – version 2016.11.a
The penalties are calculated according to the following formula:
Ps= (Sc – Sg)*10*CAcm
Ps: Penalty of the Service in question
Sc: Availability acknowledged of the Service in question on the calculation period
Sg: Availability promised by the SLAs of the given Service on the calculation period
CAcm: Average monthly turnover generated by the client over a sliding year
If there are several SLA offences, the Penalties may be cumulated.
The total Penalty may never exceed the CAcm value.
Example of a calculation:
i.e., a client using 3 OUTSCALE Services: the Object storage service, the Service for the supply of customized Virtual Machines and the Service for the distribution of charges upon request. The following shall be defined:
S1: The Availability of the Web portal (http/https) provided by OUTSCALE and enabling the various users access to the stored objects
S2: The Availability of the control API Service of the Customized Virtual Machines
S3: The Availability of virtual load-balancers
Let us take for example:
– S1c = 97.9% whereas S1g = 99.99%
– S2c = 99.95% whereas S2g = 99.9%
– S3c = 98.5% whereas S3g = 99,8%
S2c > S2g, including the Service is well rendered in the context of the SLAs. Only S1c & S3c are less than the SLAs.
i.e., a monthly invoicing calculated over a sliding year of 10,000 Euros, excluding taxes. The credit calculated shall therefore be as follows:
P = (99.99%-97.9%)*10*10000 + (99.8%-98.5%)*10*10000
P= 3390 Euros.