Terms and Conditions - US 3DS OUTSCALE

OUTSCALE INC. Customer Agreement – Version 2021.5

This OUTSCALE INC. Customer 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 INC.,” “we,” “us,” or “our”) and you or the entity you represent (“Client”, “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 Service Offerings

Generally. You may access and use the Service Offerings solely in accordance with this Agreement. You acknowledge and agree that Service Level Agreements and Special Terms and Conditions apply to certain Service Offerings. You will comply with the terms of this Agreement and all OUTSCALE INC., Policies applicable to your use of the Service Offerings. You acknowledge that you have had access to detailed specifications before signing the Agreement and were able to ensure that the Services met your needs.

1.1. Your Account. To access the Services, contact sales at [email protected], as you must have an OUTSCALE INC. account associated with a valid email address and a valid form of payment. If we detect an anomaly suggesting that the information provided is incorrect or erroneous (if any reasonable person who was placed in the same situation as us would consider such information as erroneous), or as otherwise required by law, we shall initiate the verification procedure described below:

1) We shall send an email to you to inform you that an anomaly is detected.

2) You shall have two (2) hours to acknowledge receipt of this e-mail and provide corrections or provide the supporting documents requested by us with a view to verifying the information provided.

3) If you fail to act within this deadline, we may take any measures that we consider necessary to ensure the security of the Infrastructure (as defined below), and in this regard, we may carry out or have carried out any investigations to identify you, verify the use made of the resources made available to you and more generally we may do whatever is necessary to ensure that your use of the Services and Infrastructure is not against the law.

4) During the verification procedure, if we consider it necessary, we may suspend your account or limit your activity. If you fail to respond or to provide the information requested or conclusive supporting documents, we may terminate the Agreement, without notice, by sending an e-mail or SMS to the mobile telephone number provided upon registration.

As the case may be, at the end of the registration process, you shall receive confirmation of the opening of its account.

1.2. Third-Party Content. Third-Party Content may be used by you at your election. Your use of 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. You acknowledge that OUTSCALE INC. has no liability for your use of Third-Party Content.

1.3. Infrastructure. OUTSCALE INC. and its Service Provider provide the infrastructure supporting the resources (virtual machines, storage, etc.) that OUTSCALE INC. makes available to you. OUTSCALE INC. is not legally or technically responsible for your use of the Infrastructure.

2. 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 twelve (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.

3. Notifications.

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

4. Security and Data Privacy.

4.1. OUTSCALE INC. 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. Localization; Account Information. You may specify the territories in which Your Content will be stored. You consent to the storage of Your Content in, and transfer of Your Content into, the 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 4.3, move Your Content from the OUTSCALE INC. 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 4.2. 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 territory(s) where you use the Service Offerings and 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 (i.e. patent) used for the provision of the Services (TINA OS in particular) which belong to OUTSCALE INC. 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 INC. or its Service Provider, in particular by means of reverse engineering. OUTSCALE INC., its Service Providers and any applicable third parties license to you, on a personal and non-exclusive basis, the rights to the above elements solely as is necessary to use the Services and solely for the duration of said Services, this license 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 does not assign us intellectual and/or industrial (patent) property rights.

3) Trademarks belonging to OUTSCALE INC. and you. Each party agrees not to act in any way that might be damaging either directly or indirectly to each other’s trademarks, provided that OUTSCALE INC. may cite you as a reference and to you mentioning that you use the OUTSCALE INC. Services. However, each party hereto, without having to give its reasons, may ask the other party not to make reference to it any longer.

4.5. CLIENT Data. OUTSCALE INC. has no access to CLIENT Data. Except as is strictly necessary to provide the Services, OUTSCALE INC.’s Service Providers do not access CLIENT Data. OUTSCALE INC. and its Service Providers strictly manage the physical storage of CLIENT Data and do not look at CLIENT logical storage, whatever the nature of CLIENT Data and in particular Personal Data.

4.6. Personal Data.

1) You alone are responsible for ensuring that your use of OUTSCALE INC. Services and Infrastructure complies with applicable laws, regulations and policies (the “Legislation”) on Personal Data. You represent that you will use the Infrastructure and Services in accordance with the Legislation.

2) You acknowledge that you are responsible for the collection, purpose and use of the Personal Data pursuant to this Agreement. OUTSCALE Inc.’s only obligations are to process the Personal Data pursuant to your written instructions. You represent that the collection, use, transfer and storage of the Personal Data pursuant to the terms of this Agreement are in compliance with applicable Legislation.

3) You are responsible for taking the appropriate technical and organizational measures to guarantee a level of security that is adapted to any risk. OUTSCALE INC.’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 you shall receive in the context of the Services, are of a strictly confidential nature. Consequently, you agree (i) not to communicate such information to anyone, without written authorization; (ii) to take all appropriate measures with regard to such information to avoid and prevent its disclosure; (iii) not to directly or indirectly make any other use of this information other than the processing carried out in the context of the Services: (iv) to limit the communication of this information solely to members of your 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, for any reason including, as the case may be, early termination, to promptly return all the elements and documents constituting this information in your 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 up to 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.

5. 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 to otherwise take appropriate action to secure, protect and backup your accounts and Your Content in a manner that will provide appropriate security and protection, to include (i) the use of encryption to protect Your Content from unauthorized access and (ii) routinely archiving Your Content.

5.4. Log-In Credentials and Account Keys. OUTSCALE INC. 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 INC., in a responsible manner. You must ensure compliance with OUTSCALE INC. policies applicable to the Services, including adherence to the guarantee payment terms. By express agreement you alone are liable from a legal and technical standpoint for your 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. You shall comply with all applicable Legislation with respect to Data and respect all legal obligations pertaining to a website that is open to the public. You shall endanger the Infrastructure or the Virtual Machines/Object Storage Facilities of other clients. If OUTSCALE INC. identifies operations that are malevolent activities originating from one or several of your Virtual Machines (such as “flood”, “scan”, “spam”, “denial of service”, etc.), OUTSCALE INC. may immediately block the incriminated Virtual Machines, or even all the Services, without prejudice to OUTSCALE INC.’s right to initiate the termination procedure and claim damages. You shall not be released from the above-mentioned obligations if the violation was committed by one of your users. You shall 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 INC. in full for any Losses or legal sanctions that result due to a breach of this Article.

5.7. Co-operation Obligation. You shall cooperate with OUTSCALE INC. in good faith with 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 ensure all payment information is valid. Furthermore, if you are intending to launch a marketing or communication operation, an audit of your Systems, etc., likely to cause a significant increase in the use of your resources (bandwidth, memory or calculation), it shall be responsible – as part of your duty to cooperate – for informing OUTSCALE INC. 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 your 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 INC. are therefore provisionally accepted by you in line with its use of these Services. Final acceptance is pronounced automatically forty-eight (48) hours after the provisional acceptance by you unless you notify OUTSCALE INC., by an email within forty-eight (48) hours of the provisional acceptance, 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.

1) 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 INC. website (the “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 INC. 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 thirty (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.

2) 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.

3) General pricing. The price of the Services as defined in the Special Terms and Conditions or public pricing shown on the OUTSCALE INC. Site 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.

6. Temporary Suspension.

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

1) 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 the INFRASTRUCTURE, our systems, the Service Offerings or the systems or Content of any third party or other OUTSCALE INC. customer, (iii) could subject us, our affiliates, or any third party to liability, (iv) could be fraudulent; or (v) upon the demand of a legal authority (in particular judicial) involving your use of the Services.

2) you are, or we suspect, any End User is, in breach of this Agreement.

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

4) 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 or block your right to access or use any portion or all of the Service Offerings:

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

2) you will not be entitled to any service credits, if applicable under the Service Level Agreements for any period of suspension.

Once you have been blocked, you will no longer have access to the Services, CLIENT Data or the network. If a legal authority has requested the block, and the law obliges us to keep the Services blocked for a certain time and/or until a decision is reached and/or any other event, we will comply. Otherwise, we may:

i. Keep the resources blocked until the reasons for the blockage have disappeared.

ii. At any time, and without unblocking the resources, notify you by email of the termination of the Agreement within ten (10) business days, you can then require our “Customer Service” to return Client Data to it in the conditions set forth in Article 6.4 if you wish to keep Client Data, failing which said Data will be irrevocably destroyed.

iii. You may also serve notice of immediate termination to OUTSCALE INC. by sending an email to [email protected].

iv. The termination of the Agreement is without prejudice to any damages which OUTSCALE INC. may claim from you in the event of the breach of your commitments. The Services shall be invoiced despite the suspension of the Services, except in the case whereby OUTSCALE INC. incorrectly suspended the Services.

6.3. Recovery of CLIENT 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 INC., you must immediately recover all your data hosted at OUTSCALE INC. 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 CLIENT Data and said Data may be irrevocably destroyed by OUTSCALE INC. The fact that the Termination Date is not a working day does not postpone the termination.

6.4. 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 INC., if you wish to recover your 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 INC. 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 INC. before the effective Termination Date. The Data Retrieval Service order is sent by email to [email protected] the OUTSCALE INC. “Customer Service” which issues a quote. If you accept the quote, your data is retrieved by OUTSCALE INC. and then sent to you upon payment of the Data Recovery Service charge. As of the effective Termination Date (at midnight, Eastern Standard Time) your Data may be irrevocably destroyed by OUTSCALE INC., 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.

6.5. Conservation of data. In the event of termination of the Agreement, for whatever reason, CLIENT Data will be retained for up to 7 (seven) years. You recognize that OUTSCALE INC. is not able to proceed with the complete deletion of all Client 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 (i) confidential or sensitive information, (ii) information belonging to third parties, or (iii) Personal Data. You shall hold OUTSCALE INC. harmless against any Losses, on whatever grounds, following any breach of this provision by you.

7. 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.

1) Each of the parties may terminate Agreements for On Demand Services at any time, without indemnities, including for the sake of convenience. 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. If there are no conditions specified, the Services can be terminated at any time, except for instance reservations which are still firmly and irrevocably ordered without the possibility of early termination.

2) Termination comes into effect fifteen (15) business days after (i) the acknowledgment of receipt from OUTSCALE INC., if the termination takes place at the initiative of you or (ii) the date on which the termination email was sent by OUTSCALE INC., if the termination decision is made by OUTSCALE INC. 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.

3) 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 thirty (30) days from receipt of notice by the other party. You shall close your account no later than the Termination Date.

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, including the Service Provider, 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.

1) Generally. Upon the Termination Date:

i. except as provided in Section 7.3(2), 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(2).

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

iv. All sections that are by their nature are intended to survive termination shall continue to apply in accordance with their terms.

v. The termination of the Agreement, whether at the initiative of OUTSCALE INC. or you, does not release you from your obligation to pay for those Services already used.

2) Post-Termination. Unless we terminate your use of the Service Offerings pursuant to Section 7.2(3)(ii), during the 30 days following the Termination Date:

i. we will not take action to remove from the OUTSCALE INC. 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.

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 seven (7) business days. After this formal notice, if no action is taken, OUTSCALE INC. 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 (10) business days following the notice of termination. The termination does not release you from your obligation to pay for the Services already used.

4) 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.

8. 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, the Service Provider 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-transferable license to do the following: (a) access and use the Services solely in accordance with this Agreement; and (b) copy and use the OUTSCALE INC. 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 INC. 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 INC. 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 INC. 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.

9. 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 INC. 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.

1) Subject to the limitations in this Section 9, OUTSCALE INC. 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.

2) Subject to the limitations in this Section 9, you will defend OUTSCALE INC., 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.

3) 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 INC. will have no obligations or liability arising from your or any End User’s use of the Services after OUTSCALE INC. 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.

4) For any claim covered by Section 9.2(1), OUTSCALE INC. 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.

10. 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.

11. 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 WE HAVE 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. Insurance. If you use the Service Offerings to operate critical or strategic data (for example, data for invoicing, salary payments, R&D elements etc.) on the Virtual Machines/Object Storage Facilities, it shall be your responsibility to subscribe to a specific insurance policy for loss of such data.

12. CLIENT Data.

12.1 Personal Data. The CLIENT agrees to respect, within the framework of this Agreement, OUTSCALE INC.’s Data Protection Policy available at https://us.outscale.com/, which it certifies to have read.

12.2.1 When OUTSCALE INC. acts as a Data Processor. OUTSCALE INC. acts as a Data Processor as defined in the Data Protection Policy, when carrying out its Services offerings regarding the storage of CLIENT Data on the OUTSCALE INC. Infrastructure. The CLIENT then has the status of Data Controller. CLIENT guarantees OUTSCALE INC. that it will make use of the Infrastructure and Services in accordance with Legislation and that it will respect its obligations as Data Controller.

1) Description of the processing of Personal Data.

OUTSCALE INC. is authorized to process on behalf of the CLIENT the Personal Data necessary to provide its Services. The nature of the transactions performed on the Personal Data is the storage of this Data on the Infrastructure. The purpose of the processing is the realization of the contract between the CLIENT and OUTSCALE INC. The Personal Data processed is all Personal Data stored on the Infrastructure by the CLIENT. The categories of people concerned are determined by the CLIENT.

2) Obligation of the Data Processor and the Data Controller

i. Purposes. OUTSCALE INC. undertakes to process the Personal Data only for the purpose or purposes that are the subject to this Agreement.

ii. Instructions from the CLIENT. As a Data Processor, OUTSCALE INC. undertakes to process the Personal Data in accordance with the instructions of the CLIENT. OUTSCALE INC. represents that it will never carry out direct marketing, profiling, data mining or similar measures with CLIENT Data. The Agreement between the CLIENT and OUTSCALE INC. and the use made by the CLIENT of the Services provided by OUTSCALE INC. shall constitute the CLIENT’s exhaustive and definitive instructions regarding Data Processing as defined in the Data Protection Policy. If OUTSCALE INC. considers that an instruction constitutes a violation of the Legislation on Personal Data, it will inform the CLIENT.

iii. Confidentiality. OUTSCALE INC. undertakes to guarantee the confidentiality of the Personal Data processed in the context of this Agreement. OUTSCALE INC. undertakes to ensure that persons authorized to process Personal Data under this Agreement receive the necessary training regarding the protection of Personal Data and undertake to respect confidentiality or be subject to an appropriate legal obligation to confidentiality.

iv. Protection of Personal Data by design and by default. OUTSCALE INC. undertakes to take into account with respect to its Services the principles of protection of Personal Data by design and by default.

v. Third Parties. OUTSCALE INC. may use the Service Provider and other third parties to deliver its Services. Third parties are required to comply with the obligations of this Agreement and according to the instructions of the CLIENT. If the third party does not fulfill its obligations regarding the protection of Personal Data, OUTSCALE INC. remains fully responsible to the CLIENT for the execution by the third party of its obligations.

vi. Right of information of the Data subject. It is the responsibility of the CLIENT to provide the information to the persons concerned by the processing operations at the time of collection of the Personal Data.

vii. Exercise of the rights of Data subjects. To the extent possible, OUTSCALE INC. shall assist the CLIENT in fulfilling its obligation to respond to requests for the exercise of the Data subject’s rights: right of access, right of rectification, erasure and opposition, right to limitation of processing, right to portability of Personal Data, right not to be the subject of an individual automated decision (including profiling). If the Data subjects apply to OUTSCALE INC. for the exercise of their rights, OUTSCALE INC. will send these requests as soon as possible by e-mail to the CLIENT.

viii. OUTSCALE INC.’s assistance in the context of the compliance by the CLIENT of its obligations. To the extent possible, OUTSCALE INC. will assist the CLIENT in carrying out impact assessments relating to the protection of Personal Data as well as in carrying out the prior consultation of the supervisory authority.

ix. Security Measures. The CLIENT and OUTSCALE INC. must implement appropriate technical and organizational measures to ensure a level of security appropriated to the potential risks. The security measures put in place are detailed in the OUTSCALE INC. Data Protection Policy. The CLIENT remains responsible for the security of the systems he sets up in the context of the use of the Services (firewall up to date, management of access rights, etc.). In the context of this Agreement, OUTSCALE INC. shall provide the CLIENT with the necessary information so that the latter can assess the conformity of the OUTSCALE INC. Services with its security requirements.

x. Transfer of Personal Data to third countries. OUTSCALE INC.’s services give the CLIENT the possibility of storing and processing its Data exclusively within a Territory. OUTSCALE INC. will not transfer the CLIENT Data outside of the agreed upon Territory. Nevertheless, OUTSCALE INC. can provide the CLIENT with internationally recognized tools and frameworks to transfer its Data on its own.

Before any transfer of its Personal Data, the CLIENT undertakes to verify that (i) the OUTSCALE INC. Services Specifications applicable to the Territory where it intends to transfer its Data and (ii) the Legislation on Personal Data applicable in this Territory, are consistent with its needs and constraints, particularly in terms of security.

xi. Notification of violations. OUTSCALE INC. implements a security incident management policy providing procedures for identification and response to security incidents known to OUTSCALE INC. If OUTSCALE INC. becomes aware of unauthorized access to Data within the Infrastructure, and if such unauthorized access results in loss, disclosure or modification of Data, implying a risk for the rights and freedom of Data subjects, OUTSCALE INC. shall notify the CLIENT as soon as possible after it became aware, by email. This notification shall be accompanied by all relevant documentation to enable the CLIENT to report the violation to the appropriate supervisory authority if necessary. The notification will describe, among other things, the nature of the breach, its consequences, the actions taken by OUTSCALE INC. in response to this incident and will indicate a point of contact at OUTSCALE INC. If, and to the extent that it is not possible to provide all this information at the same time, the information may be communicated in a staggered manner without undue delay.

xii. Retention of Personal Data. OUTSCALE INC. will retain the Personal Data that it has collected in its capacity of Controller up to 7 (seven) years after the end of the Services.

CLIENT acknowledges and accepts that Client Data that the CLIENT shared through such means as OMIs or disk images, with others, cannot be deleted by OUTSCALE INC., as long as another CLIENT uses the shared Data. It is the CLIENT’s responsibility not to share Confidential Information, Personal Data, sensitive Data or Data belonging to third parties.

OUTSCALE INC., in accordance with applicable Legislation, may carry out subsequent actions on the Data that are compatible with the initial transaction. OUTSCALE INC. may use the Data at its disposal to perform statistics, to improve its Services or to guide research and innovation in the field of cloud computing. Thus, for this purpose, certain Data concerning the CLIENT may be processed, which CLIENT recognizes and accepts.

xiii. Data Protection Officer. The Data Protection Officer appointed by OUTSCALE INC. can be reached at the following address: [email protected].

xiv. Record of processing activities. OUTSCALE INC. declares to keep in writing a register of all categories of processing activities performed on behalf of the CLIENT.

xv. Disclosure. OUTSCALE INC. may disclose Personal Data in order to comply with any court order, law, or legal process, including to respond to any government or regulatory request. Subject to Section 4.2, it shall notify CLIENT upon receipt of such an order.

xvi. Documentation and audit. OUTSCALE INC. shall provide the CLIENT with the necessary documentation to demonstrate compliance with all of its obligations and to enable audits, including inspections, to be conducted by the CLIENT or an auditor mandated to these audits.

The CLIENT agrees to document in writing any instructions regarding the processing of Personal Data by OUTSCALE INC. It shall ensure beforehand and throughout the duration of the processing to respect all the obligations described by applicable Legislation on the part of OUTSCALE INC. It shall oversee the processing, including conducting audits and inspections of OUTSCALE INC.

12.2.2 When OUTSCALE INC. acts as the Data Controller

1) In order to allow the realization of the Services it provides, OUTSCALE INC. also processes certain Personal Data of the CLIENT’s employees as Data Controller. The purposes of these transactions are:

CLIENT relationship management (including billing, archiving, telephony, security, service improvement, recovery, support, sales management, etc.). Personal Data processed by OUTSCALE INC. to manage CLIENT relationships are kept by OUTSCALE INC. for the duration of the Agreement between the CLIENT and OUTSCALE INC. After the termination of this Agreement, those Data will be retained for an additional period of seven (7) years before being deleted.
Compliance with certain legal obligations (accounting, management of possible litigation, etc.). Personal Data processed by OUTSCALE INC. to comply with these legal obligations are retained in accordance with applicable law.

2) OUTSCALE INC. undertakes not to use the Personal Data processed for purposes other than those mentioned in this Agreement. However, the CLIENT acknowledges and agrees that, in accordance with applicable Legislation, subsequent actions compatible with the initial purpose of the collection of the Personal Data may be carried out by OUTSCALE INC. (e.g., for statistical purposes or scientific research).

3) The CLIENT’s employees may have the right to request access to, rectification of or deletion of any of its Personal Data. They may exercise these rights with the OUTSCALE INC. Data Protection Officer by e-mail at the following e-mail address: [email protected]; or by post mail signed and with a copy of an identity document send to the following address:

OUTSCALE INC.

For the attention of the Data Protection Officer

185 Alewife Brook Parkway, Suite 210, Cambridge, MA 02138

A response will be provided to the requesting employee within a maximum of 30 (thirty) days after reception of the request.

13. Modifications to the Agreement.

We may modify this Agreement (including any Policies) at any time by posting a revised version on the OUTSCALE INC. Site or by otherwise notifying you in accordance with Section 14.10; provided, however, that we will provide at least 90 days’ advance notice in accordance with Section 14.10 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 INC. Site regularly for modifications to this Agreement. We last modified this Agreement on the date listed at the end of this Agreement.

13.1. Modification of the Agreement offers, and prices.

1) Particularly for the purposes of improving the Quality of Service, OUTSCALE INC. may modify this Agreement regularly as well as its offers (Service Specifications, prices, etc.). New versions of the Agreement, offers and prices will be published on the OUTSCALE INC. website at https://us.outscale.com/. OUTSCALE INC. 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.

2) The new contractual conditions come into force as soon as they have been published and apply (i) to future contractual relations between OUTSCALE INC. and you, whether On Demand clients or otherwise, and (ii) automatically modify the Agreements in progress.

3) In the event of a modification made by OUTSCALE INC. 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.

14. Miscellaneous.

14.1. 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 14.1 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.

14.2. 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 Agreement are inconsistent with the terms contained in any Policy, the terms contained in this Agreement will control, except that the Service Terms will control over this Agreement.

14.3. 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, IT criminality (subject to OUTSCALE INC. having set up a reasonable security policy), major dysfunctions in the Internet network earthquake, storms or other elements of nature, blockages, pandemics, embargoes, riots, acts or orders of government, acts of terrorism, or war.

14.4. 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.

14.5. 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 INC. 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.

14.6. 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 INC. and regulations, including all such OUTSCALE INC. 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 INC. 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.

14.7. 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.

14.8. 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.

14.9. Confidentiality and Publicity. You may use OUTSCALE INC. Confidential Information only in connection with your use of the Service Offerings as permitted under this Agreement. You will not disclose OUTSCALE INC. Confidential Information during the Term or at any time during the 7-year period following the end of the Term. You will take all reasonable measures to avoid disclosure, dissemination or unauthorized use of OUTSCALE INC. 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.

14.10. Notice.

1) To You. We may provide any notice to you under this Agreement by: (i) posting a notice on the OUTSCALE INC. Site; or (ii) sending a message to the email address then associated with your account. Notices we provide by posting on the OUTSCALE INC. 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.

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

14.11. 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.

14.12. 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.

14.13. 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.

14.14. 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 the effect and the 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.