Terms and Conditions

OUTSCALE Customer Agreement – version 2018.1

This OUTSCALE Customer Agreement (this “Agreement”) contains the terms and conditions that govern your access to and use of the Service Offerings (as defined below) and is an agreement between OUTSCALE, Inc. (“OUTSCALE,” “we,” “us,” or “our”) and you or the entity you represent (“you” or “your”). This Agreement takes effect when you click an “I Accept” button or checkbox presented with these terms or, if earlier when you use any of the Service Offerings (the “Effective Date”). You represent to us that you are lawfully able to enter into contracts (e.g., you are not a minor). If you are entering into this Agreement for an entity, such as the company you work for, you represent to us that you have the legal authority to bind that entity.

 

  1. Use of the Service Offerings.

1.1 Generally. You may access and use the Service Offerings in accordance with this Agreement. Service Level Agreements and Service Terms apply to certain Service Offerings. You will comply with the terms of this Agreement and all OUTSCALE, rules, and regulations applicable to your use of the Service Offerings.

1.2 Your Account. To access the Services, contact sales at https://us.outscale.com/contact/, as you must have an OUTSCALE account associated with a valid email address and a valid form of payment.

1.3 Third-Party Content. Third-Party Content may be used by you at your election. Third-Party Content is governed by this Agreement and, if applicable, separate terms and conditions accompanying such Third-Party Content, which terms and conditions may include separate fees and charges.

1.4 OUTSCALE is responsible for the infrastructure supporting the resources (virtual machines, storage, etc.) that it makes available to you. OUTSCALE is not legally or technically responsible for your use.

1.5 All services covered by this customer agreement comply with data protection regulations and certified ISO 27001:2013 processes.

 

  1. Changes.

2.1 To the Service Offerings. We may change or discontinue any or all of the Service Offerings or change or remove functionality of any or all of the Service Offerings from time to time. We will notify you of any material change to or discontinuation of the Service Offerings.

2.2 To the APIs. We may change or discontinue any APIs for the Services from time to time. For any discontinuation of or material change to an API for a Service, we will use commercially reasonable efforts to continue supporting the previous version of such API for 12 months after the change or discontinuation (except if doing so (a) would pose a security or intellectual property issue, (b) is economically or technically burdensome, or (c) would cause us to violate the law or requests of governmental entities).

2.3 To the Service Level Agreements. We may change, discontinue or add Service Level Agreements from time to time.

 

  1. Notifications.

3.1 All notifications issued within the scope of this Agreement, and in particular formal notice sent to you, shall be sent by OUTSCALE via email to the email address provided by you at the time of account creation. The time and the date indicated on the OUTSCALE server from which the email was issued shall be considered as confirmation between you and OUTSCALE. If you do not accept email as a means of notification within the scope of this Agreement, you must refuse these Terms and Conditions and not enter into an Agreement with OUTSCALE.

 

  1. Security and Data Privacy.

4.1 OUTSCALE Security. Without limiting Section 10 or your obligations under Section 4.2, we will implement reasonable and appropriate measures designed to help you secure Your Content against accidental or unlawful loss, access or disclosure.

4.2 Data Privacy. You may specify the OUTSCALE territories in which Your Content will be stored. You consent to the storage of Your Content in, and transfer of Your Content into, the OUTSCALE territories you select. We will not access or use Your Content except as necessary to maintain or provide the Service Offerings, or as necessary to comply with the law or a binding order of a governmental body. We will not (a) disclose Your Content to any government or third party or (b) subject to Section 3.3, move Your Content from the OUTSCALE territories selected by you; except in each case as necessary to comply with the law or a binding order of a governmental body. Unless it would violate the law or a binding order of a governmental body, we will give you notice of any legal requirement or order referred to in this Section 3.2. We will only use your Account Information in accordance with the Privacy Policy, and you consent to such usage. The Privacy Policy does not apply to Your Content.

4.3 Service Attributes. To provide billing and administration services, we may process Service Attributes in the OUTSCALE territory(s) where you use the Service Offerings and the OUTSCALE territories in the United States. To provide you with support services initiated by you and investigate fraud, abuse or violations of this Agreement, we may process Service Attributes where we maintain our support and investigation personnel.

4.4 Intellectual Property.

  1. Ownership of the technologies used to provide the Services. This Agreement shall not include any assignment or transfer of intellectual and/or industrial property rights (patent) used for the provision of the Services (TINA OS in particular) which belong to OUTSCALE. Furthermore, it is stipulated that you are strictly prohibited from reproducing any of the elements used to supply the Services; computer code, texts, images, design, graphics chart, ergonomics, documentation etc. as well as seek to reconstitute the technologies belonging to OUTSCALE, in particular by means of reverse engineering. OUTSCALE assigns to you, on a personal and non-exclusive basis, the rights to the above elements as is strictly necessary to use the Services and solely for the duration of said Services, this assignment ending automatically at the same time as the Services.
  2. Ownership of your Systems and Data. All the elements making up your Systems and Data shall remain the property of you in all circumstances, this agreement entailing no assignment of intellectual and/or industrial (patent) property rights.
  3. Trademarks belonging to OUTSCALE and you. Each party agrees not to act in any way that might be damaging either directly or indirectly to each other’s trademarks. And this, without prejudice to OUTSCALE citing you as a reference and to you mentioning that it uses the OUTSCALE Services. However, each Party, without having to give its reasons, may ask the other Party not to make reference to it any longer.

4.5 CLIENT Data. OUTSCALE has no access to your data.  Except as is strictly necessary to provide the Services, OUTSCALE does not access your Data, OUTSCALE strictly manages the physical storage of the Data and does not look at CLIENT logical storage, whatever the nature of the Data and in particular Personal data.

4.6 Personal data. OUTSCALE complies with all personal data protection regulations.

  1. You alone are responsible for ensuring that your use of OUTSCALE Services and Infrastructure complies with the Legislation on personal data. You guarantee that you will use the OUTSCALE Infrastructure and Services in accordance with the Legislation on personal data and that it will comply with its obligations as the Controller of the Personal data.
  2. You are the sole controller within the framework of these Terms and Conditions. As the Processor, OUTSCALE only processes the Personal data following written instruction by you.
  3. Security of Personal data. As the controller, you must take the appropriate technical and organizational measures to guarantee a level of security that is adapted to any risk. For this purpose, OUTSCALE’s only obligation will be to implement and maintain the appropriate technical and organizational measures designed to help you secure the personal data against any unauthorized processing, loss, or accidental or illegal access or disclosure.

4.7 Confidentiality. You 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, you shall assume: Not to communicate such information to anyone, without written authorization to take all 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 other than the processing carried out in the context of the Services: to limit the communication of this information to the sole members of its personnel who must be informed in the context of the Services and to guarantee the respect of these commitments as necessary. Upon the termination 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. These commitments shall remain in force as long as this information has not fallen into the public domain, and in any event, for at least 5 (five) years after the end of the Services. These confidentiality obligations shall not apply to information which was already known to the public or to the receiving Party at the time of its communication or which subsequently became known, without any fault on the part of the receiving party. Furthermore, this confidentiality clause shall not prohibit OUTSCALE from quoting you in reference, nor you from mentioning that it uses the OUTSCALE Services in the conditions of the article “Intellectual Property”.

 

  1. Your Responsibilities.

5.1 Your Accounts. Except to the extent caused by our breach of this Agreement, (a) you are responsible for all activities that occur under your account, regardless of whether the activities are authorized by you or undertaken by you, your employees or a third party (including your contractors, agents or End Users), and (b) we and our affiliates are not responsible for unauthorized access to your account.

5.2 Your Content. You will ensure that Your Content and your and End Users’ use of Your Content or the Service Offerings will not violate any of the Policies or any applicable law. You are solely responsible for the development, content, operation, maintenance, and use of Your Content.

5.3 Your Security and Backup. You are responsible for properly configuring and using the Service Offerings and otherwise, take appropriate action to secure, protect and backup your accounts and Your Content in a manner that will provide appropriate security and protection, which might include the use of encryption to protect Your Content from unauthorized access and routinely archiving Your Content.

5.4 Log-In Credentials and Account Keys. Outscale log-in credentials and private keys generated by the Services are for your internal use only and you will not sell, transfer or sublicense them to any other entity or person, except that you may disclose your private key to your agents and subcontractors performing work on your behalf.

5.5 End Users. You will be deemed to have taken any action that you permit, assist or facilitate any person or entity to take related to this Agreement, Your Content or use of the Service Offerings. You are responsible for End Users’ use of Your Content and the Service Offerings. You will ensure that all End Users comply with your obligations under this Agreement and that the terms of your agreement with each End User are consistent with this Agreement. If you become aware of any violation of your obligations under this Agreement caused by an End User, you will immediately suspend access to Your Content and the Service Offerings by such End User. We do not provide any support or services to End Users unless we have a separate agreement with you or an End User obligating us to provide such support or services.

5.6 Duty of Care Obligation. You must operate the Virtual Machines and/or Object Storage Facilities made available by OUTSCALE, in a responsible manner. You must ensure compliance with OUTSCALE applicable to the services. Guarantee payment terms are adhered to. By express agreement you alone are liable from a legal and technical standpoint for its system (including the data, regardless of origin); domain names, SSL certificates, and for the log management of its system in accordance with the law, etc. Protect service key access. Ensure that legislation on personal data is respected. Respect all legal obligations with regard to a website that is open to the public. Not to do anything with Virtual Machines/Object Storage that may technically endanger the OUTSCALE infrastructure, as well as the Virtual Machines/Object Storage Facilities of other clients. If OUTSCALE identifies operations that are technically malevolently originating from one or several of you (the CLIENT)’s Virtual Machines (such as “flood”, “scan”, “spam”, “denial of service”, etc.), OUTSCALE may immediately block the incriminated Virtual Machines, or even all the Services; without prejudice to OUTSCALE’s right to initiate the termination procedure and claim damages.  You cannot be released from the above-mentioned obligations by arguing that it did not commit the violation itself, but that it was committed by one of its System’s users. Therefore, you must take all the necessary measures to prevent such violations from being committed, and to limit the consequences, if they were to occur, despite the precautions taken. You shall indemnify OUTSCALE in full for any legal sanctions imposed following a violation by you of one of the above-mentioned obligations.

5.7 Co-operation Obligation. You shall cooperate with OUTSCALE in good faith the appropriate performance of the Services, and proactively communicate any relative information or dysfunction. You agree to appoint a Manager with the technical skills and the legal capacity necessary to: Authorize/manage the Extensions to the scope of the Services, work on the Virtual Machines, manage your Account and in particular ensure payment information is valid. Furthermore, if you are  intending to launch a marketing or communication operation, an audit of its Systems, etc. likely to cause a significant increase in the use of its resources (bandwidth, memory or calculation), it shall be responsible – as part of its duty to cooperate – for informing OUTSCALE prior to the launching of said operation, and within a reasonable period, in order to avoid this sudden increase in activity being analyzed as a security fault resulting in the possible temporary suspension of its System.

5.8 Acceptance obligation. As a result of the continuous nature of the Services provided and the existence of continuous monitoring made available to you, an acceptance system shall be set up for the Services, called “as you go”. All the Services provided by OUTSCALE are therefore provisionally accepted by you in line with its use of these Services. Final acceptance is pronounced automatically 48 (forty-eight) hours after the provisional acceptance by you unless you notify OUTSCALE, by an email within 48 (forty-eight) hours of the provisional receipt, of the existence of a substantiated reservation regarding the Service. This notification must document the reservation formulated: date, time of the start and finish of the unavailability period justified by the tools available via “Cockpit” and “Status”. No reservation may be formulated beyond the period mentioned above. The lack of documentation to back up the reservation formulated shall be considered as a lifting of the reservation.

 

5.9 Fees and Payment.

5.10 Service Fees. We calculate and bill fees and charges monthly. We may bill you more frequently for fees accrued if we suspect that your account is fraudulent or at risk of non-payment. You will pay us the applicable fees and charges for use of the Service Offerings as described on the OUTSCALE Site using one of the payment methods we support. All amounts payable by you under this Agreement will be paid to us without setoff or counterclaim and without any deduction or withholding. Fees and charges for any new Service or new feature of a Service will be effective when we post updated fees and charges on the OUTSCALE Site unless we expressly state otherwise in a notice. We may increase or add new fees and charges for any existing Services you are using by giving you at least 30 days’ prior notice. We may elect to charge you interest at the rate of 1.5% per month (or the highest rate permitted by law, if less) on all late payments.

5.11 Taxes. Each party will be responsible, as required under applicable law, for identifying and paying all taxes and other governmental fees and charges (and any penalties, interest, and other additions thereto) that are imposed on that party upon or with respect to the transactions and payments under this Agreement. All fees payable by you are exclusive of Indirect Taxes. We may charge and you will pay applicable Indirect Taxes that we are legally obligated or authorized to collect from you. You will provide such information to us as reasonably required to determine whether we are obligated to collect Indirect Taxes from you. We will not collect, and you will not pay, any Indirect Tax for which you furnish us a properly completed exemption certificate or a direct payment permit certificate for which we may claim an available exemption from such Indirect Tax. All payments made by you to us under this Agreement will be made free and clear of any deduction or withholding, as may be required by law. If any such deduction or withholding (including but not limited to cross-border withholding taxes) is required on any payment, you will pay such additional amounts as are necessary so that the net amount received by us is equal to the amount then due and payable under this Agreement. We will provide you with such tax forms as are reasonably requested in order to reduce or eliminate the amount of any withholding or deduction for taxes in respect of payments made under this Agreement.

5.12 General pricing. The price of the services is defined in the Special Terms and Conditions or public pricing shown on the OUTSCALE website shall apply. Invoices are issued monthly for Services On-Demand and in advance for certain Services (reserved instances, etc.). Intermediary invoices may be issued if consumption exceeds usual practices.  Invoices are payable via credit card. The minimum monthly invoicing corresponds to one hour per type of Virtual Machine or resource used, even if the accounting for the use is on a billing-per-second basis. The prices shall be listed, excluding taxes, with Value Added Tax and any other taxes applicable added thereafter. The price of all the Services may be revised at any time. You agree to receive invoices by email.

 

  1. Temporary Suspension.

6.1 Generally. We may suspend your or any End User’s right to access or use any portion or all of the Service Offerings immediately upon notice to you if we determine:

(a) your or an End User’s use of the Service Offerings (i) poses a security risk to the Service Offerings or any third party, (ii) could adversely impact our systems, the Service Offerings or the systems or Content of any other OUTSCALE customer, (iii) could subject us, our affiliates, or any third party to liability, or (iv) could be fraudulent;

(b) you are, or we suspect, or any End User is, in breach of this Agreement;

(c) you are in breach of your payment obligations under Section 5; or

(d) you have ceased to operate in the ordinary course, made an assignment for the benefit of creditors or similar disposition of your assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution or similar proceeding.

6.2 Effect of Suspension. If we suspend your right to access or use any portion or all of the Service Offerings:

(a) you remain responsible for all fees and charges you incur during the period of suspension, and

(b) you will not be entitled to any service credits under the Service Level Agreements for any period of suspension.

6.3 OUTSCALE will suspend services at the request of an authority or when you make an illicit 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 you (such as Virtual Machines, Object Storage Service, etc.), or at the first demand of an authority (in particular judicial) involving the resources of you (the CLIENT), or each time the law obliges it, may block said resources and suspend the Services. Once they have been blocked, you 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: Keep the resources blocked until the reasons for the blockage have disappeared. At any time, and without unblocking the resources, notify you by email of the termination of the Agreement within 10 (ten) business days, you can then require OUTSCALE “Customer Service” to return the Data to it in the conditions set forth in the article “Recovery of its Data by you (the CLIENT)/Conservation of data by OUTSCALE” if it wishes to keep the Data, failing which said Data will be irrevocably destroyed. You may also serve notice of immediate termination to OUTSCALE by sending an email to https://us.outscale.com/resources/. The termination of the Agreement is without prejudice to any damages which OUTSCALE may claim from you in the event of the breach of its commitments. The Services shall be invoiced despite the suspension of the Services, except in the case whereby OUTSCALE incorrectly suspended the Services.

6.4 Recovery of your Data by you if you have access to your resources. When the Agreement is terminated, for whatever reason and irrespective of whether the initiative for termination lies with you or with OUTSCALE, you must immediately recover all your data hosted at OUTSCALE and store it elsewhere before the effective termination date. As of the effective termination date (at midnight, Eastern Standard Time): you will no longer have access to your Data and said Data may be irrevocably destroyed by OUTSCALE.  The fact that the termination date is not a working day does not postpone the termination.

6.5 Recovery of its Data by you if you do not have access to your resources. When the Agreement is terminated, for whatever reason and irrespective of whether the initiative for termination lies with you or with OUTSCALE, if you wish to recover its Data and cannot retrieve it yourself since you no longer have access to your resources (Such as Virtual Machines, Object Storage Service, etc.) you must immediately order a Data Retrieval Service from OUTSCALE before the effective termination date. You cannot order this Data Retrieval Service if your billing is not up to date. You must, therefore, pay all amounts owed to OUTSCALE before the effective termination date. The Data Retrieval Service order is sent by email to the OUTSCALE “Customer Service” which issues a quote. If you accept the quote, your data is retrieved by OUTSCALE and then sent to you upon payment of the Data Recovery Service. As of the effective termination date (at midnight, Eastern Standard Time) your data may be irrevocably destroyed by OUTSCALE, whether or not you have ordered a Data Retrieval Service. The fact that the termination date is not a business day does not postpone the termination.

6.6 Conservation of data.  In the event of termination of the Agreement, for whatever the reason, your data will be deleted. You recognize that OUTSCALE is not able to proceed with the complete deletion of all the Data that you 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 you not to share confidential or sensitive information or information belonging to third parties, or Personal data on any account. You guarantee OUTSCALE shall hold itself harmless against any sanction, on whatever grounds, following any violation by you of this ban on sharing Personal data.

 

  1. Term; Termination.

7.1 Term. The term of this Agreement will commence on the Effective Date and will automatically renew for successive one (1) year periods unless terminated under this Section 7. Any notice of termination of this Agreement by either party to the other must include a Termination Date that complies with the notice periods in Section 7.2.

7.2 Termination.

(a) Termination for Convenience. You may terminate this Agreement for any reason by providing us notice and closing your account for all Services for which we provide an account closing mechanism. We may terminate this Agreement for any reason by providing you at least 30 days’ advance notice.

(b) Termination for Cause.

(i) By Either Party. Either party may terminate this Agreement for cause if the other party is in material breach of this Agreement and the material breach remains uncured for a period of 30 days from receipt of notice by the other party. No later than the Termination Date, you will close your account.

(ii) By Us. We may also terminate this Agreement immediately upon notice to you (A) for cause if we have the right to suspend under Section 6, (B) if our relationship with a third-party partner who provides software or other technology we use to provide the Service Offerings expires, terminates or requires us to change the way we provide the software or other technology as part of the Services, or (C) in order to comply with the law or requests of governmental entities.

7.3 Effect of Termination.

(a) Generally. Upon the Termination Date:

(i) except as provided in Section 7.3(b), all your rights under this Agreement immediately terminate;

(ii) you remain responsible for all fees and charges you have incurred through the Termination Date and are responsible for any fees and charges you incur during the post-termination period described in Section 7.3(b);

(iii) you will immediately return or, if instructed by us, destroy all OUTSCALE Content in your possession; and

(iv) Sections 4.1, 5, 7.3, 8 (except the license granted to you in Section 8.3), 9, 10, 11, 13 and 14 will continue to apply in accordance with their terms.

(b) Post-Termination. Unless we terminate your use of the Service Offerings pursuant to Section 7.2(b), during the 30 days following the Termination Date:

(i) we will not take action to remove from the OUTSCALE systems any of Your Content as a result of the termination; and

(ii) we will allow you to retrieve Your Content from the Services only if you have paid all amounts due under this Agreement.

For any use of the Services after the Termination Date, the terms of this Agreement will apply and you will pay the applicable fees at the rates under Section 5.

 

7.4 Term/Termination of the Agreement.

  1. The Agreement governed by these Terms and Conditions are for an unlimited period of time, except if the Agreement does not correspond to an On-Demand Service and its Special Terms and Conditions fix a specific term (for example, in case of the reservation of an instance for a fixed period). Each of the Parties may terminate Agreements for On Demand Services at any time, without indemnities, including for the sake of convenience.
  2. For Services that are not On Demand, the Agreement can only be terminated in accordance with the conditions agreed upon in the Special Terms and Conditions and if there are no conditions specified, the Agreement can be terminated like On Demand Agreements, except for instance reservations which are still firmly and irrevocably ordered without the possibility of early termination. The termination comes into effect fifteen (15) business days after (i) the acknowledgment of receipt from OUTSCALE if the termination takes place at the initiative of you or (ii) the date on which the termination email was sent by OUTSCALE if the termination decision is made by OUTSCALE. Before the effective termination date, you must immediately recover all your data hosted within the framework of the Agreement terminated, as specified in articles 6.4 and 6.5. The termination of the Agreement, whether at the initiative of OUTSCALE or you, does not release you from your obligation to pay for those Services already used.
  3. In the event that you violate your financial obligations such as late payment or refusal to pay you will be served formal notice by email to remedy said violation within 7 business days. After this formal notice, no action is taken, OUTSCALE may block your access to the resources supplied as part of the Services (including the related Data) and suspend the Services. If this formal notice has produced no effect within the given timeframe, termination comes into effect automatically ten business days following the notice of termination. The termination does not release you from your obligation to pay for the Services already used.

 

  1. Proprietary Rights.

8.1 Your Content. Except as provided in this Section 8, we obtain no rights under this Agreement from you (or your licensors) to Your Content. You consent to our use of Your Content to provide the Service Offerings to you and any End Users.

8.2 Adequate Rights. You represent and warrant to us that: (a) you or your licensors own all right, title, and interest in and to Your Content and Suggestions; (b) you have all rights in Your Content and Suggestions necessary to grant the rights contemplated by this Agreement; and (c) none of Your Content or End Users’ use of Your Content or the Service Offerings will violate the Acceptable Use Policy.

8.3 Service Offerings License. We or our licensors own all right, title, and interest in and to the Service Offerings, and all related technology and intellectual property rights. Subject to the terms of this Agreement, we grant you a limited, revocable, non-exclusive, non-sub licensable, non-transferrable license to do the following: (a) access and use the Services solely in accordance with this Agreement; and (b) copy and use the OUTSCALE Content solely in connection with your permitted use of the Services. Except as provided in this Section 8.3, you obtain no rights under this Agreement from us, our affiliates or our licensors to the Service Offerings, including any related intellectual property rights. Some OUTSCALE Content and Third-Party Content may be provided to you under a separate license, such as the Apache License, Version 2.0, or other open source licenses. In the event of a conflict between this Agreement and any separate license, the separate license will prevail with respect to the OUTSCALE Content or Third-Party Content that is the subject of such separate license.

8.4 License Restrictions. Neither you nor any End User will use the Service Offerings in any manner or for any purpose other than as expressly permitted by this Agreement. Neither you nor any End User will, or will attempt to (a) modify, distribute, alter, tamper with, repair, or otherwise create derivative works of any Content included in the Service Offerings (except to the extent Content included in the Service Offerings is provided to you under a separate license that expressly permits the creation of derivative works), (b) reverse engineer, disassemble, or decompile the Service Offerings or apply any other process or procedure to derive the source code of any software included in the Service Offerings (except to the extent applicable law doesn’t allow this restriction), (c) access or use the Service Offerings in a way intended to avoid incurring fees or exceeding usage limits or quotas, or (d) resell or sublicense the Service Offerings. You may only use the OUTSCALE Marks in accordance with the Trademark Use Guidelines. You will not misrepresent or embellish the relationship between us and you (including by expressing or implying that we support, sponsor, endorse, or contribute to you or your business endeavors). You will not imply any relationship or affiliation between us and you except as expressly permitted by this Agreement.

8.5 Suggestions. If you provide any Suggestions to us or our affiliates, we and our affiliates will be entitled to use the Suggestions without restriction. You hereby irrevocably assign to us all right, title, and interest in and to the Suggestions and agree to provide us any assistance we require to document, perfect, and maintain our rights in the Suggestions.

 

  1. Indemnification.

9.1 General. You will defend, indemnify, and hold harmless us, our affiliates and licensors, and each of their respective employees, officers, directors, and representatives from and against any Losses arising out of or relating to any third-party claim concerning: (a) your or any End Users’ use of the Service Offerings (including any activities under your OUTSCALE account and use by your employees and personnel); (b) breach of this Agreement or violation of applicable law by you, End Users or Your Content; or (c) a dispute between you and any End User. You will reimburse us for reasonable attorneys’ fees, as well as our employees’ and contractors’ time and materials spent responding to any third-party subpoena or other compulsory legal order or process associated with third party claims described in (a) through (c) above at our then-current hourly rates.

9.2 Intellectual Property.

(a) Subject to the limitations in this Section 9, OUTSCALE will defend you and your employees, officers, and directors against any third-party claim alleging that the Services infringe or misappropriate that third party’s intellectual property rights and will pay the amount of any adverse final judgment or settlement.

(b) Subject to the limitations in this Section 9, you will defend OUTSCALE, its affiliates, and their respective employees, officers, and directors against any third-party claim alleging that any of Your Content infringes or misappropriates that third party’s intellectual property rights and will pay the amount of any adverse final judgment or settlement.

(c) Neither party will have obligations or liability under this Section 9.2 arising from infringement by combinations of the Services or Your Content, as applicable, with any other product, service, software, data, content or method. In addition, OUTSCALE will have no obligations or liability arising from your or any End User’s use of the Services after OUTSCALE has notified you to discontinue such use. The remedies provided in this Section 9.2 are the sole and exclusive remedies for any third-party claims of infringement or misappropriation of intellectual property rights by the Services or by Your Content.

(d) For any claim covered by Section 9.2(a), OUTSCALE will, at its election, either: (i) procure the rights to use that portion of the Services alleged to be infringing; (ii) replace the alleged infringing portion of the Services with a non-infringing alternative; (iii) modify the alleged infringing portion of the Services to make it non-infringing; or (iv) terminate the allegedly infringing portion of the Services or this Agreement.

9.3 Process. The obligations under this Section 9 will apply only if the party seeking defense or indemnity: (a) gives the other party prompt written notice of the claim; (b) permits the other party to control the defense and settlement of the claim; and (c) reasonably cooperates with the other party (at the other party’s expense) in the defense and settlement of the claim. In no event will a party agree to any settlement of any claim that involves any commitment, other than the payment of money, without the written consent of the other party.

 

  1. Disclaimers.

THE SERVICE OFFERINGS ARE PROVIDED “AS IS.” EXCEPT TO THE EXTENT PROHIBITED BY LAW, OR TO THE EXTENT ANY STATUTORY RIGHTS APPLY THAT CANNOT BE EXCLUDED, LIMITED OR WAIVED, WE AND OUR AFFILIATES AND LICENSORS (A) MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE REGARDING THE SERVICE OFFERINGS OR THE THIRD-PARTY CONTENT, AND (B) DISCLAIM ALL WARRANTIES, INCLUDING ANY IMPLIED OR EXPRESS WARRANTIES (I) OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR QUIET ENJOYMENT, (II) ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE, (III) THAT THE SERVICE OFFERINGS OR THIRD-PARTY CONTENT WILL BE UNINTERRUPTED, ERROR FREE OR FREE OF HARMFUL COMPONENTS, AND (IV) THAT ANY CONTENT WILL BE SECURE OR NOT OTHERWISE LOST OR ALTERED.

 

  1. Limitations of Liability.

WE AND OUR AFFILIATES AND LICENSORS WILL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, REVENUES, CUSTOMERS, OPPORTUNITIES, GOODWILL, USE, OR DATA), EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, NEITHER WE NOR ANY OF OUR AFFILIATES OR LICENSORS WILL BE RESPONSIBLE FOR ANY COMPENSATION, REIMBURSEMENT, OR DAMAGES ARISING IN CONNECTION WITH: (A) YOUR INABILITY TO USE THE SERVICES, INCLUDING AS A RESULT OF ANY (I) TERMINATION OR SUSPENSION OF THIS AGREEMENT OR YOUR USE OF OR ACCESS TO THE SERVICE OFFERINGS, (II) OUR DISCONTINUATION OF ANY OR ALL OF THE SERVICE OFFERINGS, OR, (III) WITHOUT LIMITING ANY OBLIGATIONS UNDER THE SERVICE LEVEL AGREEMENTS, ANY UNANTICIPATED OR UNSCHEDULED DOWNTIME OF ALL OR A PORTION OF THE SERVICES FOR ANY REASON; (B) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; (C) ANY INVESTMENTS, EXPENDITURES, OR COMMITMENTS BY YOU IN CONNECTION WITH THIS AGREEMENT OR YOUR USE OF OR ACCESS TO THE SERVICE OFFERINGS; OR (D) ANY UNAUTHORIZED ACCESS TO, ALTERATION OF, OR THE DELETION, DESTRUCTION, DAMAGE, LOSS OR FAILURE TO STORE ANY OF YOUR CONTENT OR OTHER DATA. IN ANY CASE, OUR AND OUR AFFILIATES’ AND LICENSORS’ AGGREGATE LIABILITY UNDER THIS AGREEMENT WILL NOT EXCEED THE AMOUNT YOU ACTUALLY PAY US UNDER THIS AGREEMENT FOR THE SERVICE THAT GAVE RISE TO THE CLAIM DURING THE 12 MONTHS BEFORE THE LIABILITY AROSE.

 

11.1. OUTSCALE’s liability. By express agreement, OUTSCALE shall decline any liability for direct and/or consequential damages, such as operating loss, loss of turnover, loss of data or corruption of the application, disorganization, violation of your image rights etc.

 

11.2 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 a force majeure event. Shall be deemed as force majeure events those that the law or case law qualifies as such, but also all acts of IT criminality (subject to OUTSCALE having set up a reasonable security policy), major dysfunctions in the Internet network and electrical malfunctions.

 

11.3 Insurance. If you intend to operate critical or strategic data (for example, data for invoicing, salary

payments, R&D elements etc.) on the OUTSCALE Virtual Machines/Object Storage Facilities, it shall be your responsibility to subscribe to a specific insurance policy for loss of data.

 

  1. Modifications to the Agreement.

We may modify this Agreement (including any Policies) at any time by posting a revised version on the OUTSCALE Site or by otherwise notifying you in accordance with Section 13.10; provided, however, that we will provide at least 90 days’ advance notice in accordance with Section 13.10 for adverse changes to any Service Level Agreement. Subject to the 90-day advance notice requirement with respect to adverse changes to Service Level Agreements, the modified terms will become effective upon posting or, if we notify you by email, as stated in the email message. By continuing to use the Service Offerings after the effective date of any modifications to this Agreement, you agree to be bound by the modified terms. It is your responsibility to check the OUTSCALE Site regularly for modifications to this Agreement. We last modified this Agreement on the date listed at the end of this Agreement.

 

  1. Modification of the General Terms and Conditions of Sale, offers, prices, and Agreements.
  2. Particularly for the purposes of improving the Quality of Service, OUTSCALE may modify these Terms and Conditions regularly as well as its offers (Service Specifications, prices, etc.). The new versions of the Terms and Conditions, offers and prices will be published on OUTSCALE’s website us.outscale.com. OUTSCALE may also send an email to your Account email address and/or warn you of a modification of the contractual conditions via the management interface of your Account.
  3. The new contractual conditions come into force as soon as they have been published and apply (i) to future contractual relations between OUTSCALE and you, whether On Demand CLIENTs or otherwise, and (ii) automatically modify the Agreements in progress with the consequences described in sections a and b depending on whether they are On Demand Services or not.
  4. In the event of a modification made by OUTSCALE to the Specifications for the Services and in particular to the Statement of Applicability, it is up to you, assisted if necessary by an IT professional, to ensure that the Services continue to be in line with your needs and objectives, in particular in terms of security.

 

  1. Miscellaneous.

13.1 Assignment. You will not assign or otherwise transfer this Agreement or any of your rights and obligations under this Agreement, without our prior written consent. Any assignment or transfer in violation of this Section 13.1 will be void. Subject to the foregoing, this Agreement will be binding upon, and inure to the benefit of the parties and their respective permitted successors and assigns.

13.2 Entire Agreement. This Agreement incorporates the Policies by reference and is the entire agreement between you and us regarding the subject matter of this Agreement. This Agreement supersedes all prior or contemporaneous representations, understandings, agreements, or communications between you and us, whether written or verbal, regarding the subject matter of this Agreement. We will not be bound by and specifically object to, any term, condition or other provision that is different from or in addition to the provisions of this Agreement (whether or not it would materially alter this Agreement) including for example, any term, condition or other provision (a) submitted by you in any order, receipt, acceptance, confirmation, correspondence or other document, (b) related to any online registration, response to any Request for Bid, Request for Proposal, Request for Information, or other questionnaire, or (c) related to any invoicing process that you submit or require us to complete. If the terms of this document are inconsistent with the terms contained in any Policy, the terms contained in this document will control, except that the Service Terms will control over this document.

13.3 Force Majeure. We and our affiliates will not be liable for any delay or failure to perform any obligation under this Agreement where the delay or failure results from any cause beyond our reasonable control, including acts of God, labor disputes or other industrial disturbances, electrical or power outages, utilities or other telecommunications failures, earthquake, storms or other elements of nature, blockages, embargoes, riots, acts or orders of government, acts of terrorism, or war.

13.4 Governing Law. The laws of the State of Delaware without reference to conflict of law rules, govern this Agreement and any dispute of any sort that might arise between you and us. The United Nations Convention for the International Sale of Goods does not apply to this Agreement.

13.5 Disputes.  Any dispute or claim relating in any way to your use of the Service Offerings, or to any products or services sold or distributed by OUTSCALE will be resolved by binding arbitration, rather than in court, except that you may assert claims in small claims court if your claims qualify. The Federal Arbitration Act and federal arbitration law apply to this Agreement. There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages) and must follow the terms of this Agreement as a court would.

13.6 Trade Compliance. In connection with this Agreement, each party will comply with all applicable import, re-import, sanctions, anti-boycott, export, and re-export control OUTSCALE and regulations, including all such OUTSCALE and regulations that apply to a U.S. company, such as the Export Administration Regulations, the International Traffic in Arms Regulations, and economic sanctions programs implemented by the Office of Foreign Assets Control. For clarity, you are solely responsible for compliance related to the manner in which you choose to use the Service Offerings, including your transfer and processing of Your Content, the provision of Your Content to End Users, and the OUTSCALE territory in which any of the foregoing occur. You represent and warrant that you and your financial institutions, or any party that owns or controls you or your financial institutions, are not subject to sanctions or otherwise designated on any list of prohibited or restricted parties, including but not limited to the lists maintained by the United Nations Security Council, the U.S. Government (e.g., the Specially Designated Nationals List and Foreign Sanctions Evaders List of the U.S. Department of Treasury, and the Entity List of the U.S. Department of Commerce), the European Union or its Member States, or other applicable government authority.

13.7 Independent Contractors; Non-Exclusive Rights. We and you are independent contractors, and this Agreement will not be construed to create a partnership, joint venture, agency, or employment relationship. Neither party nor any of their respective affiliates is an agent of the other for any purpose or has the authority to bind the other. Both parties reserve the right (a) to develop or have developed for it products, services, concepts, systems, or techniques that are similar to or compete with the products, services, concepts, systems, or techniques developed or contemplated by the other party, and (b) to assist third party developers or systems integrators who may offer products or services which compete with the other party’s products or services.

13.8 Language. All communications and notices made or given pursuant to this Agreement must be in the English language. If we provide a translation of the English language version of this Agreement, the English language version of the Agreement will control if there is any conflict.

13.9 Confidentiality and Publicity. You may use OUTSCALE Confidential Information only in connection with your use of the Service Offerings as permitted under this Agreement. You will not disclose OUTSCALE Confidential Information during the Term or at any time during the 5-year period following the end of the Term. You will take all reasonable measures to avoid disclosure, dissemination or unauthorized use of OUTSCALE Confidential Information, including, at a minimum, those measures you take to protect your own confidential information of a similar nature. You will not issue any press release or make any other public communication with respect to this Agreement or your use of the Service Offerings.

13.10 Notice.

(a) To You. We may provide any notice to you under this Agreement by: (i) posting a notice on the OUTSCALE Site; or (ii) sending a message to the email address then associated with your account. Notices we provide by posting on the OUTSCALE Site will be effective upon posting and notices we provide by email will be effective when we send the email. It is your responsibility to keep your email address current. You will be deemed to have received an email sent to the email address then associated with your account when we send the email, whether or not you actually receive the email.

(b) To Us. To give us notice under this Agreement, you must contact OUTSCALE by email at [email protected].

 

13.11 No Third-Party Beneficiaries. Except as set forth in Section 9, this Agreement does not create any third-party beneficiary rights in any individual or entity that is not a party to this Agreement.

13.12 U.S. Government Rights. The Service Offerings are provided to the U.S. Government as “commercial items,” “commercial computer software,” “commercial computer software documentation,” and “technical data” with the same rights and restrictions generally applicable to the Service Offerings. If you are using the Service Offerings on behalf of the U.S. Government and these terms fail to meet the U.S. Government’s needs or are inconsistent in any respect with federal law, you will immediately discontinue your use of the Service Offerings. The terms “commercial item” “commercial computer software,” “commercial computer software documentation,” and “technical data” are defined in the Federal Acquisition Regulation and the Defense Federal Acquisition Regulation Supplement.

13.13 No Waivers. The failure by us to enforce any provision of this Agreement will not constitute a present or future waiver of such provision nor limit our right to enforce such provision at a later time. All waivers by us must be in writing to be effective.

13.14 Severability. If any portion of this Agreement is held to be invalid or unenforceable, the remaining portions of this Agreement will remain in full force and effect. Any invalid or unenforceable portions will be interpreted to effect and intent of the original portion. If such construction is not possible, the invalid or unenforceable portion will be severed from this Agreement but the rest of the Agreement will remain in full force and effect.

 

  1. Definitions.

“Acceptable Use Policy” means the policy https://us.outscale.com/terms-conditions/ (and any successor or related locations designated by us), as it may be updated by us from time to time.

“Account Information” means information about you that you provide to us in connection with the creation or administration of your OUTSCALE account. For example, Account Information includes names, usernames, phone numbers, email addresses and billing information associated with your OUTSCALE account.

“Agreement” Means the Agreement entered into between OUTSCALE and you, to govern the services. It is comprised of these General Terms and Conditions.

“API” Means an application program interface, whatever the type or version.

“API Order” Means application program interface placed to you by OUTSCALE, enabling you to steer and configure the Services (automation of creations, deletions, start-ups and shutdowns of the Virtual Machines, Temporary Extension of the Scope of the Services in the event that the Infrastructure detects a lack of resources, etc.)

“Availability Zones” Means a place located in a Territory where OUTSCALE has deployed equipment enabling it to supply you with all the Services specified in the Agreement.

“CLIENT” (You) Means any entity that has entered into an Agreement with OUTSCALE.

“CLIENT Data” Means all Data of any nature, including Personal data, that you store and process using the Infrastructure provided by OUTSCALE. By express agreement, OUTSCALE (i) does not access your Data, and (ii) advises you to encrypt it without providing an encryption key; it being specified that, lastly, (iii) OUTSCALE cannot distinguish which CLIENT Data constitutes Personal data.

“CLIENT Manager” Means the person(s) appointed by you to manage your account and work on your Virtual Machines. This person shall also manage and/or verify any Extension of the Scope of the Services.

“CLIENT Provisional System” Means your test system created in the context of the Professional Service.

“CLIENT System” Means the applications, developments, data, databases, software, etc. placed on a Virtual Machine or a Storage Service Facility by you, in order to render them accessible to users via the Internet or a direct link.

“Cloud Computing” Means the technique for providing CLIENTS with calculations, memory, storage and network resources supplied by servers that are linked up by networks.

“OUTSCALE Confidential Information” means all nonpublic information disclosed by us, our affiliates, business partners or our or their respective employees, contractors or agents that is designated as confidential or that, given the nature of the information or circumstances surrounding its disclosure, reasonably should be understood to be confidential. OUTSCALE Confidential Information includes: (a) nonpublic information relating to our or our affiliates or business partners’ technology, customers, business plans, promotional and marketing activities, finances and other business affairs; (b) third-party information that we are obligated to keep confidential; and (c) the nature, content and existence of any discussions or negotiations between you and us or our affiliates. OUTSCALE Confidential Information does not include any information that: (i) is or becomes publicly available without breach of this Agreement; (ii) can be shown by documentation to have been known to you at the time of your receipt from us; (iii) is received from a third party who did not acquire or disclose the same by a wrongful or tortious act; or (iv) can be shown by documentation to have been independently developed by you without reference to the OUTSCALE Confidential Information.

OUTSCALE Content” means Content we or any of our affiliates make available in connection with the Services or on the OUTSCALE Site to allow access to and use of the Services, including APIs; WSDLs; Documentation; sample code; software libraries; command line tools; proofs of concept; templates; and other related technology (including any of the foregoing that are provided by our personnel). OUTSCALE Content does not include the Services or Third-Party Content.

“OUTSCALE Marks” means any trademarks, service marks, service or trade names, logos, and other designations of OUTSCALE and its affiliates that we may make available to you in connection with this Agreement.

“OUTSCALE Site” means https://us.outscale.com/ (and any successor or related site designated by us), as may be updated by us from time to time.

“Content” means software (including machine images), data, text, audio, video or images.

“Continuous Storage” Means the service subscribed by you in your management interface or API.

“Dedicated Infrastructure (Private Cloud)” Means infrastructure which supports the Virtual Machines of a single customer.

“Documentation” means the user guides and admin guides (in each case exclusive of content referenced via hyperlink) for the Services located at https://wiki.outscale.net/display/DOCU (and any successor or related locations designated by us), as such user guides and admin guides may be updated by OUTSCALE from time to time.

“End User” means any individual or entity that directly or indirectly through another user: (a) accesses or uses Your Content; or (b) otherwise accesses or uses the Service Offerings under your account. The term “End User” does not include individuals or entities when they are accessing or using the Services or any Content under their own OUTSCALE account, rather than under your account.

“Extension of the Scope of the Services (or Extension)” Means when the offer subscribed shall involve you purchasing supplementary resources from OUTSCALE.

“General Terms and Conditions of Sale (or Terms and Conditions)” Means this document, its definitions and all the documents it incorporates by references, such as the Statement of Applicability and the Specifications for the Services.

“Indirect CLIENTs” Means any entity which purchases OUTSCALE Services via a Retailer.

“Indirect Taxes” means applicable taxes and duties.

“Losses” means any claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees).

“Non-continuous Storage” Means storage space, used by the Virtual Machine, where the data is eliminated with the re-start of the Machine.

“Managed Services” Means management by OUTSCALE of the Virtualization tools for your dedicated infrastructure.

“OMI” Means Outscale Machine Images which enables access to a ready-for-use Virtual Machine. OUTSCALE may also use the term Image Machine or Template Machine.

“Official OMI” Means Open Management Infrastructure maintained by OUTSCALE.

“On Demand” Means the Services supplied in the context of the Agreement when you only pay for the resources effectively used, and do not take out any subscription or commitment over time or for minimum resources.

“Order Form” Means the document signed or validated by you under the terms of which you accept a Proposal for Services, a quote or order a product.

“Outscale Infrastructure” Means all of OUTSCALE’s equipment or that of its sub-contractors (such as data centers, servers, routers, etc.) necessary for the provision of Services, as well as dedicated and shared infrastructure.

“Policies” means the Acceptable Use Policy, Privacy Policy, the Site Terms, the Service Terms, the Trademark Use Guidelines, all restrictions described in the OUTSCALE Content and on the OUTSCALE Site, and any other policy or terms referenced in or incorporated into this Agreement, but does not include whitepapers or other marketing materials referenced on the OUTSCALE Site.

“POP” Means Point of Presence of the Cloud Operator. This is a place, in general in a Datacenter, where OUTSCALE operates one or several of its Services.

“Privacy Policy” means the privacy policy located at https://us.outscale.com/privacy-policy/ (and any successor or related locations designated by us), as it may be updated by us from time to time.

“Professional Services” Means any Services supplied by OUTSCALE following a specific request by you.

“Provisions or Services” Means the availability of resources by OUTSCALE to you within OUTSCALE’s shared or dedicated infrastructure.

“Region” Means a geographical area covering one or more Availability Area(s).

“Retailer” Means any entity which has established a Retailer agreement with OUTSCALE.

“Retailer Agreement” Means the agreement between OUTSCALE and a Retailer which defines the special financial conditions for the price of the Services that Retailer purchases from OUTSCALE to sell to Indirect CLIENTs.

“Reversibility” Means the paying service who migrates your production on the OUTSCALE Infrastructure to an ISO-functional platform which is compatible but not the property of OUTSCALE.

“Service” means each of the services made available by us or our affiliates, including those web services described in the Service Terms. Services do not include Third-Party Content.

“Services” Means the provision of resources by OUTSCALE to your (Virtual Machines, Object Storage, etc.), within OUTSCALE’s Infrastructure as well as related Services, if applicable.

“Service Access Key” Means a set of digital identifiers (login, password, API key, etc.) for a specific account that enables you to make its authentication on your Infrastructure.

“Service Attributes” means Service usage data related to your account, such as resource identifiers, metadata tags, security and access roles, rules, usage policies, permissions, usage statistics, and analytics.

“Service Level Agreement” means all service level agreements that we offer with respect to the Services and post on the OUTSCALE Site, as they may be updated by us from time to time. The service level agreements we offer with respect to the Services are located at https://us.outscale.com/terms-conditions/ (and any successor or related locations designated by OUTSCALE), as may be updated by OUTSCALE from time to time.

“Shared Infrastructure (Public Cloud)” means infrastructure which supports the Virtual Machines for multiple customers.

“SLA/Quality of Service” Means OUTSCALE’s service level agreements/quality of service commitments in the context of the Services.

“Service Offerings” means the Services (including associated APIs), the OUTSCALE Content, the OUTSCALE Marks, and any other product or service provided by us under this Agreement. Service Offerings do not include Third-Party Content.

“Service Terms” means the rights and restrictions for particular Services (and any successor or related locations designated by us), as may be updated by us from time to time.

“Site Terms” means the terms of use located at https://us.outscale.com/terms-conditions/ (and any successor or related locations designated by us), as may be updated by us from time to time.

 “Snapshot” Means the point-in-time image of a volume taken by you.

“Specifications” Means the designation of the characteristics of the different Services proposed within the framework of these Terms and Conditions, i.e. in particular the description of the Services, how they function, their performances and a breakdown of responsibilities between OUTSCALE and you with a view to ensuring the security of the Services and of the Data.

“Special Terms and Conditions” Means the contractual document (in the form of an Order Form, conditions posted on the website or an application agreement) completing these Terms and Conditions and specifying the terms of the offer (Virtual Machine specifications, Storage Services, specific Quality of Service commitments superseding these Terms and Conditions, duration of the Services for Services which are not On Demand, special performance conditions, etc.) subscribed by you by any means, including online via its management API. They shall form an integral part of these Terms and Conditions.

“Statement of Applicability for the OUTSCALE Information Security Management System (Statement of Applicability)” Means the document describing all the security measures applicable at OUTSCALE, both for its Infrastructures and its Services.

“Storage Service Facility (Object Storage Unit)” Means 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 types of equipment in order to guarantee the Sustainability of the data in the event of a simultaneous breakdown of one or two of the physical facilities used.

“Suggestions” means all suggested improvements to the Service Offerings that you provide to us.

“Support” means the technical support provided by OUTSCALE.

“Sustainability” Means the probability of non-deletion of data inadvertently that could be caused by a physical phenomenon such as “bit flips”, the dysfunction of a specific technology, and or the aging of the storage media, etc.)

“Technical Support (or Support)” Means the technical support provided by OUTSCALE in accordance with the Specifications for the Services and with the “Technical Support” article contained in these Terms and Conditions.

“Term” means the term of this Agreement described in Section 7.1.

“Termination Date” means the effective date of termination provided in accordance with Section 7, in a notice from one party to the other.

“Termination Date” Is effective 15 days after acknowledgment of receipt from Outscale (the date on which Outscale sent termination email)

“Territory” Means a geographical area situated in the Territory covering one or several Availability Zones.

“Third-Party Content” means Content made available to you by any third party on the OUTSCALE Site or in conjunction with the Services.

“Trademark Use Guidelines” means the guidelines and trademark license adopted by Outscale as may be amended from time to time.

“Virtualization” Means the technique enabling logic resources to be created based on physical resources (Virtual Machines based on physical servers).

“Virtual Machine(s)” Means Virtual Servers which set up your systems and are located within the OUTSCALE Infrastructure. They shall include: memory resources (RAM and hard drive and/or other means of storage), calculation resources, continuous storage with or without guarantee of performance, an operating system (Windows®, distribution LINUX or other), third-party applications that may be subject to licenses, the standard security system, bandwidth allocation.

“Your Content” means Content that you or any End User transfers to us for processing, storage or hosting by the Services in connection with your OUTSCALE account and any computational results that you or any End User derive from the foregoing through their use of the Services. Your Content does not include Account Information.

Last updated March 1, 2018

 

 

 

APPENDIX A: SERVICE LEVEL AGREEMENTS

 

SLA1 – Service: (Storage service Objects)

The Durability of storage of an Object on a Region is guaranteed at 99.9999999999% * per year if these objects are distributed over all the Availability Zones that exist in the Region in question.

Availability of the API provided by OUTSCALE and allowing to publish and manipulate objects of the CLIENT by the latter is 99.97% per year.

The Availability of the web portal (http / https) provided by OUTSCALE and allowing diverse users to access the stored objects is 99.99% * per year for objects deployed on all Region Availability Zones and 99.98% for the others.

This Sustainability is subject to use in state of the art Services and without any alteration of data voluntary or not having originated an action of the CLIENT. It is applicable in particular if the CUSTOMER uses all the Availability Zones existing in the region.

Object storage, as the name suggests, should not be used in block mode (for example, for an active database). The use of object storage in block mode via technical means of bypass (e.g. FUSE under Linux), is not a use in the state of the art Object storage and any incident related to this use will not be covered by this SLA.

 

SLA2 – Service: “Persistent Storage Service”

The availability of a volume is guaranteed to 99.7% per month. By default, a volume is available only in its Original Availability Zone.

The availability of a snapshot is 99.7% per month. Snapshot available throughout the Region.

The Durability of a Snapshot is equal to that of an Object Storage object because the Snapshots are ultimately stored in the Object Storage and thus benefit from all the associated guarantees. However, this guarantee is only acquired 24 hours after their creation.

For instances with guaranteed IOPS, OUTSCALE undertakes to provide the number of IOPS subscribed, for blocks of 4 kb, at least 90% of the time over a month.

The Durability of a volume is not guaranteed because it is an active block storage that can be impacted by any impromptu shutdown problem. For example, the crash of a physical element in the OUTSCALE Infrastructure may cause a Virtual Machine resource to be terminated and corruption of a persistent storage volume that has been abruptly stopped in an inconsistent state. Similarly, a “terminate” or “force-stop” command can cause the Virtual Machine resource to abruptly shut down and therefore corrupt the attached volume resources.

OUTSCALE can never be held responsible for problems of consistency regarding volumes; it is up to the CUSTOMER to ensure that he has made all necessary safeguards in order to perpetuate his data and that he has set up state-of-the-art architectures in order to find a coherent state of his volumes.

 

SLA3 – Non-Persistent Storage Service

The Non-Persistent Storage Service has absolutely NO WARRANTY. OUTSCALE informs the CUSTOMER that the Service may stop or malfunction at any time and that it is up to the CLIENT to restart its Virtual Machine resource in the event that the defect of this Service has an impact on its availability. This service should only be used for specific cases as a temporary and non-critical storage location (Swap, tempfs, etc.) and especially not for data like those of production to be stored that must be stored on other types of storage more sustainable.

 

SLA4 – Service “Virtual Machines Supply à la carte”

The Individual Availability of an Availability Zone is 99.7% per month.

The Individual Availability of an Infrastructure Component is 99.8% per month.

The availability of a resource (Virtual Machine, etc.) is 99.8% * per month.

The PLC Service Availability is 99.9% per month. In the event that a hardware component of the OUTSCALE Infrastructure causes a CUSTOMER resource to be shut down, such as stopping a physical OUTSCALE server causing a CUSTOMER Virtual Machine to shut down, by default the CUSTOMER resource is in a “stopped” state in order to prevent its reboot from causing additional damage (loss of data, corruption, etc.). It is the responsibility of the CUSTOMER to supervise its resources and restart them if necessary. The time required for the CUSTOMER to realize this does not count in the calculation of the unavailability of a resource.

The time to be counted in the unavailability of a resource is the time during which, after the resource is stopped, the CLIENT is unable to restart it. In addition, in order for this SLA to apply, the CUSTOMER must prove that resources equivalent to the default resource have indeed been deployed on all the Region’s Availability Zones and that the Service has still not been able to be due to OUTSCALE.

OUTSCALE notifies the CUSTOMER that any abnormal use of its Infrastructure, and in particular in the event of overloading of its control APIs (hammering), security countermeasures may be activated automatically and block access to control APIs or some OUTSCALE Benefits. In this case, it is not an unavailability, but a procedure of backup of the OUTSCALE Infrastructure, and the CUSTOMER will not count this in unavailability.

Finally, OUTSCALE informs the CUSTOMER that duplicate requests to its APIs are limited to one per second (Throttling). The fact that the CLIENT would see identical requests submitted to the API at a higher frequency and refused as such would not be counted as unavailable.

 

SLA5 – “Secure Network to Internet Service Provider”

OUTSCALE is at the state of the art with regard to its Internet connections. It uses several access providers and the BGP4 protocol to ensure redundancy. This protocol can lead to unwanted route changes that are beyond the control of OUTSCALE, but which in general ensure access availability. In the event of an incident, the first 2 minutes are never taken into account because the convergence time of the BPG4 protocol is 90 seconds. The availability calculation will, therefore, take 2 minutes per incident.

Availability of Internet access: 99,999% * per year.

In the event of a Cyber-attack, especially in the case of a Distributed Denial of Service (DDoS) attack, OUTSCALE may modify its Internet routing configuration to mitigate this attack as much as possible and protect its Infrastructure. If it is a CUSTOMER IP that is targeted by the attack, OUTSCALE may use the black hole-type BGP community to prohibit upstream of its providers any traffic to the attacked IP in order to protect the CLIENT’s other resources, but also other OUTSCALE customers and its Infrastructure.

OUTSCALE protects its infrastructures via several Firewall layers in the state of the art and its applications, including its APIs via WAF (Application Firewalls).

 

OUTSCALE encourages the CUSTOMER to do the same, notably by using WAF OMIs, available from OUTSCALE, but also via the configuration of the security groups via the control PLC. OUTSCALE by default filters all incoming traffic to the CLIENT’s public IPs and it is the CUSTOMER who opens the flows it needs.

OUTSCALE insists that the CUSTOMER should open its flows at minimal and not open SSH (TCP port 22) and RDP (TCP port 3389) administrative streams to the whole of the Internet (subnet 0.0.0.0/0), as well as internal protocols such as SMB (TCP / UDP port 445) or NFS (TCP / UDP port 2049).

Availability of virtual firewalls in charge of security groups: 99.8% per month.

Availability of PLC Service Order: 99.9% per month.

 

SLA6 – “Intra Cloud network service delivery” service

The intra-network is secured in the same way as the network from the Internet via the security groups. The CLIENT is warned that if it decides to override the security groups via the control API for its internal resources, the configuration of the security groups will NOT be applied. The latency in the internal network depends on many parameters, in particular, the proximity of the availability zones. The redundancy of a Region is a balance between the geographical spread of the Availability Zones and the maximum latency that can be supported by multi-zone applications.

Internal network availability: 99.99% per year.

Maximum inter-resource latency (excluding object storage): 10 ms.

Maximum latency to or from storage Object: 200 ms.

 

SLA7 – “Internet Service Provider (DNS, NTP) and Cloud Metadata Service” service

The CUSTOMER is informed by OUTSCALE that its Systems are protected against their intensive use which can lead to the denial of service. Any automatic activation of countermeasure due to an abusive use of the CUSTOMER and resulting in an unavailability of Service for the latter cannot be counted as such.

Availability of DNS, NTP, DHCP Services: 99.8% per month.

Availability of Metadata Services: 99.8% per month.

 

SLA8 – “Pay-as-you-go” service

Availability of virtual load balancers: 99.8% per month.

Availability of PLC Service Order: 99.9% per month.