GENERAL TERMS AND CONDITIONS OF SALE
LOCKSELF is a simplified joint-stock company (société par actions simplifiée) registered with the Nanterre Trade and Companies Register under number 800 034 043, whose registered office is located at 120 rue Jean Jaurès, 92300 Levallois-Perret, represented by its President (hereinafter “LOCKSELF”). The CUSTOMER and LOCKSELF are hereinafter jointly referred to as the “Parties”.
LOCKSELF is a dynamic company operating in the field of new technologies, providing services relating to cybersecurity and hosting for businesses and individuals. LOCKSELF publishes the LockSelf software and its LockPass, LockTransfer and LockFiles products.
Following the demonstrations it was able to attend, the information and advice provided by LOCKSELF and the discussions between the Parties, the CUSTOMER, acting in its capacity as a professional (business), declares that it has received all the information it wished to obtain and has expressed its wish to benefit from the standard Services developed by LOCKSELF, accessible in SaaS or on-premises mode, which are governed by these General Terms and Conditions of Sale (hereinafter the “GTC” or the “Agreement”).
The CUSTOMER declares that it has read and accepts the rights and obligations relating to the Services. Any use of / subscription to the Services is governed by these GTC.
The Specific Conditions provided as an appendix set out, in particular, the description of the subscribed Services, the price and, where applicable, any specific conditions. In the event of conflict, the Specific Conditions prevail over the GTC.
Article 1. DEFINITIONS
In these GTC, the following terms shall have the following meaning, whether used in the singular or the plural:
• Subscription: means the price payable by the CUSTOMER in consideration for the Services.
• Assistance: means any assistance service relating to the use of the Services provided by LOCKSELF to the CUSTOMER through the user guide and the training given to department managers if necessary.
• CUSTOMER: means the legal entity identified above and wishing to use the Services.
• Data: means the CUSTOMER’s information processed by the Services at the CUSTOMER’s request. The Data remains the exclusive property of the CUSTOMER.
• Solution: means the LockSelf software and its modules (LockPass, LockTransfer, LockFiles), accessible in SaaS or On-Premises mode, by means of which the Services are provided. • Third-Party Suppliers: means any supplier involved in the provision of the Services or providing the means and tools necessary to use the Services.
• Confidential Information: means, regardless of the medium and means of transmission, the trade secrets, financial terms, LOCKSELF’s inventions and documents relating to the Services exchanged between the Parties in connection with this Agreement and its performance, as well as the methods and know-how of each Party and all information transmitted and belonging to either Party.
• Services: means the assistance in managing the security of the CUSTOMER’s Data provided through the modules chosen by the CUSTOMER, such as LockPass, LockTransfer and LockFiles, provided by LOCKSELF under this Agreement.
• User: means the natural persons who are employees of the CUSTOMER and authorised by the CUSTOMER, under its responsibility, to connect to the Solution and use the Services in the course of their duties, and for whom the CUSTOMER has taken out a Subscription and provided a user ID and password under the conditions defined in the Agreement. It is specified that each named User must be covered by a Subscription.
• LOCKSELF: means the company LOCKSELF SAS, publisher of the LockSelf software accessible in SaaS or On-Premises mode.
• Agreement: means the entire contractual set binding the Parties, comprising these GTC and the Specific Conditions provided as an appendix, as well as any appendix or document expressly incorporated by reference.
Article 2. PURPOSE
The purpose of these GTC is to define the conditions under which LOCKSELF allows the CUSTOMER, under an enhanced best-efforts obligation (obligation de moyens renforcée), to use the Services, in consideration for payment by the CUSTOMER of the relevant Subscription.
Article 3. ACCEPTANCE – AMENDMENT OF THE GTC
The CUSTOMER has had the opportunity to raise reservations or comments regarding these GTC. Subscription to the Services entails full and complete acceptance of these GTC, which the CUSTOMER acknowledges having read, understood and accepted.
Any additional requests for Services or any other services provided by LOCKSELF shall be the subject of specific conditions appended and signed between the Parties and subject to this Agreement.
The Specific Conditions are provided as an appendix to these GTC and form an integral part thereof. In the event of conflict, the Specific Conditions prevail over the GTC.
Article 4. USE OF THE SERVICES
4.1. Information and documents
The Customer undertakes to provide LOCKSELF with the information useful for performing the Services, within a timeframe and at a frequency consistent with LOCKSELF’s obligations. LOCKSELF shall not be liable for any loss, damage, non-compliance or deficiency resulting from information or documents not provided by the CUSTOMER, or that are incomplete or erroneous.
4.2. Access to and use of the Services
i. Credentials and passwords
• The CUSTOMER’s access to the Services is by means of a user ID and access code, under the CUSTOMER’s responsibility.
• The credentials are intended to restrict access to the Services to the CUSTOMER and its Users, to protect the integrity and availability of the Services, as well as the integrity, availability and confidentiality of the CUSTOMER’s Data.
• They are personal and confidential. The CUSTOMER undertakes to implement a password management policy — in particular for creation and modification — at least compliant with best practices (règles de l’art), such as complex passwords of at least twelve (12) characters or passphrases, regular renewal and strict confidentiality, to ensure the security of access to the Services.
• The CUSTOMER shall accordingly take all necessary measures to ensure that only the Users it has authorised to use the Services have the information enabling access to and use of the Services, and shall inform LOCKSELF without delay and in writing in the event of unauthorised access to or use of the Services. LOCKSELF may in no event be held liable for the unauthorised use or misappropriation of the CUSTOMER’s or Users’ credentials.
ii. Use of the Services
The CUSTOMER accesses the Services via the internet, and in particular via a browser which it installs and uses under its sole responsibility. The use of the internet is under the CUSTOMER’s responsibility, and the CUSTOMER expressly acknowledges that no technology can guarantee absolute security.
The CUSTOMER undertakes in particular to:
• use the Services solely for its own benefit and to comply with this Agreement;
• behave responsibly and, in particular, not to sell, resell, grant access or sub-access, distribute, make available, rent or lease all or part of the Services;
• act in accordance with the intended purpose of the Services, and refrain from disrupting the integrity, performance and, more broadly, the qualities of the Services; in this respect, the CUSTOMER shall refrain, in particular, from uploading any item containing software viruses or other code, files or computer programs designed to interrupt, destroy or limit the functionality of the Services, in whole or in part.
Should the CUSTOMER or one or more User(s) fail to comply with all or part of the foregoing provisions, or use the Services in a manner not compliant with this Agreement which, in LOCKSELF’s assessment, constitutes a threat to the security, integrity, availability or quality of its Services, this may lead LOCKSELF to suspend the CUSTOMER’s Services. Save in the event of a proven threat to the security or integrity of the Services — in which case the suspension may take effect immediately — the suspension shall be preceded by notice to the CUSTOMER allowing it a reasonable period to remedy the breach.
4.3. Resources
The CUSTOMER undertakes to allocate and maintain, in all cases and for as long as necessary, the material, software and human resources required, in terms of capacity, competence and number, for the implementation and use of the Services. The CUSTOMER is solely responsible for the means and resources enabling access to the Services by the Users and is informed that, to make the best use of the Services, LOCKSELF recommends that it subscribe to one or more of the training sessions provided by LOCKSELF in order to train the Users in the use of the Solution.
4.4. Use of third parties
The CUSTOMER is solely responsible for the Third-Party Suppliers it uses on its side, as well as for the quality of their services and work. It is understood that LOCKSELF cannot be held liable for the consequences of the acts of third parties, in particular breaches by Third-Party Suppliers under the Customer’s responsibility. This applies in particular to the internet service provider, for example.
4.5. Management of the information system
It is recalled that the CUSTOMER is solely responsible for the management of its information system and for the consequences of such management on the operation and use of the Services and the results thereof.
4.6. Hosting
In connection with the use of the Services for the standard (public cloud) or premium (private cloud) offers, LOCKSELF provides the Services relying in particular on the infrastructures of the companies 3DS Outscale and Scaleway, of whose solutions LOCKSELF is a reseller. The Data is hosted within the European Union. Any transfer outside the European Union is governed by the appropriate safeguards provided for by applicable regulations (in particular the Standard Contractual Clauses of the European Commission).
Article 5. ENTRY INTO FORCE – TERM
The Agreement enters into force and takes effect as from the day of subscription to the Services. Unless otherwise provided in the Specific Conditions, it is entered into for an initial term of twelve (12) months.
Upon expiry of the initial term, the Agreement is tacitly renewed for successive periods of twelve (12) months, unless terminated by either Party by written notice given to the other Party at least two (2) months before the end of the current period. Non-renewal at term does not constitute early termination within the meaning of Article 13 and does not give rise to any indemnity.
Upon expiry of the Agreement, for any reason whatsoever, LOCKSELF applies the reversibility and Data deletion provisions set out in Article 12 bis.
Article 6. COOPERATION
The Parties undertake to be responsive and to cooperate effectively in the performance of the Agreement. In this respect, the Parties undertake in particular to:
• allocate and maintain, for as long as necessary, the resources required, in competence and number, for the implementation of the Services;
• use their best efforts to enable the Services to ensure the security of the Data used in connection with the Services;
• ensure the security of their information system.
The Customer undertakes to provide, at LOCKSELF’s request, the information useful to enable LOCKSELF to make the Services available to the CUSTOMER under the conditions of the Agreement. LOCKSELF shall not be liable for any loss, damage, non-compliance or deficiency resulting from information or documents not provided by the CUSTOMER, or that are incomplete or erroneous.
Article 7. FINANCIAL TERMS
7.1. Price
The prices agreed between the Parties in consideration for the performance of the Services are set out in the Specific Conditions.
The prices agreed between the Parties:
• are stated exclusive of tax and increased by the taxes in force at the time of invoicing in accordance with the applicable tax provisions, in particular as regards VAT;
• if it appears to LOCKSELF that the CUSTOMER has used the Services in a manner different from what was subscribed under the specific conditions, LOCKSELF shall invoice the CUSTOMER for the applicable additional Subscription amount, calculated as indicated in the specific conditions;
• cover only the CUSTOMER’s access rights to the Services and therefore do not include, in particular, travel and accommodation expenses or the performance of additional services.
7.2. Invoicing and payment terms
In the event of late payment of an invoice on its due date, LOCKSELF shall inform the CUSTOMER by any written means.
As from such notification, the CUSTOMER has a period of thirty (30) days to: (i) either pay in full the sums due; or (ii) if it does not wish to continue the Agreement, retrieve all of its non-personal Data via the functionalities available in the application, under its responsibility.
Failing payment regularisation at the end of this thirty (30)-day period, LOCKSELF may, after at least two reminders by email: (i) limit or suspend the CUSTOMER’s access to the Services, such suspension possibly extending to total interruption of the Services (hereinafter the “Payment Default Period”); then (ii) notify the CUSTOMER of the forthcoming deletion of its Data.
The deletion of the Data shall take place no earlier than fifteen (15) days after the sending of this notification, unless the situation is fully regularised.
The CUSTOMER is expressly informed that it is responsible, during the thirty (30)-day period following the first late payment, for carrying out any export or backup of the Data it wishes to keep.
In the event of late payment, LOCKSELF shall be entitled to claim: late-payment interest at a rate of three (3) times the statutory interest rate, due automatically (de plein droit); the statutory fixed indemnity for recovery costs of forty (40) euros per invoice; as well as reimbursement of any recovery costs upon supporting documentation; without prejudice to any damages to which LOCKSELF may be entitled.
Payment of all sums due by the CUSTOMER shall become immediately payable in the event of termination of the Agreement for non-payment.
7.3. Economic balance of the Agreement
Should one or more events beyond the control of the Party suffering the imbalance occur and affect the conditions of performance of the Agreement, in particular by increasing the cost of all or part of the Services (hereinafter the “Change in the Contractual Balance”), the Parties shall meet to adjust, in good faith and by mutual agreement, the financial and/or technical terms so as to fairly reflect the actual effect of these events on the Agreement.
Failing agreement on these new conditions, the Party suffering the imbalance may terminate, automatically (de plein droit), all or part of the Agreement without penalties or other financial indemnities on its part. Such termination takes effect within three (3) months from the sending, by the requesting Party, of a registered letter with acknowledgment of receipt informing the other Party of its wish to terminate all or part of the Agreement due to a Change in the Contractual Balance.
Article 7.4 – Price indexation
The amount of the Subscription for each renewal period may be subject to annual indexation according to the indexation formula below, based on the SYNTEC index published by the Syntec Federation.
price = P0 x ( index 1 / index 2 )
Where: price = the revised price; P0 = the original price or, where applicable, the last revised price; index 1 = the Syntec index at the time of revision; index 2 = the Syntec index at the date of the previous revision.
Price increases resulting from indexation shall apply at each renewal date of the Agreement and may be reflected on the following invoice. In the event that the SYNTEC index ceases to be published, it shall be replaced by a similar index, ensuring the continuity of the indexation.
Article 8. SERVICE LEVELS
This clause does not apply in the case of ON-PREMISES hosting.
LOCKSELF undertakes, under an obligation to achieve a specific result (obligation de résultat), to ensure the availability of the Services in accordance with the following service levels (hereinafter the “Service Level Agreement” or “SLA”):
• The service will be accessible 24/7, 99.8% of the time.
• In the event of incidents or bug reports by the Customer, LockSelf undertakes to respond within a maximum of four (4) business hours and to provide a fix or workaround as soon as possible.
Incident handling and resolution terms: incidents are classified into three levels of criticality:
• Critical (service unavailable): response within 4 business hours; workaround or correction within 4 business hours.
• Major (functionality impacted, service partially available): response within 4 business hours; workaround or correction within 8 business hours.
• Minor (non-blocking incident or anomaly): response within 4 business hours; correction as soon as possible.
The times are counted in business hours (Monday to Friday, 9:00 a.m. to 6:00 p.m. CET, excluding public holidays) from receipt of the report via the support portal.
These service levels constitute obligations to achieve a specific result (obligations de résultat) on the part of LOCKSELF. The definitive correction of an incident, the duration of which depends on its nature and complexity, occurs as soon as possible; in the meantime, LOCKSELF implements a workaround within the applicable time.
The count is suspended during any wait for information or action incumbent on the CUSTOMER, as well as in the cases excluded from the SLA.
The following cases, for which LOCKSELF cannot be held liable, are excluded from the SLA: • Preventive or evolutionary maintenance operations;
• Incidents due to elements or acts of the customer or of third parties, for example the internet or electricity network.
LOCKSELF shall handle any incident causing non-compliance with the SLA that is exclusively attributable to it and shall correct it or implement a workaround if such incident is reproducible, provided that such handling requires reasonable means.
The CUSTOMER is informed that its information system, and in particular the internet browser, have an influence on the SLA, and acknowledges that LOCKSELF’s interventions require, from time to time, an interruption of the Services.
For the application of penalties, the CUSTOMER undertakes to send LOCKSELF a registered letter with acknowledgment of receipt stating the nature of the breaches concerned and the amount of the penalties claimed by application of the scale set out below, within one (1) month from the non-compliance with the SLA.
It is specified that:
• All penalties paid by LOCKSELF under the Agreement shall be deducted from the amount of any damages claimed by the Customer. These penalties constitute lump-sum liquidated damages in full and final settlement (réparation forfaitaire et libératoire) for non-compliance with the SLA.
• LOCKSELF may not be held liable for delays or failure to meet the SLA due to an act of the CUSTOMER or its users, a force majeure event, or the failure of a network, equipment or third-party service independent of LOCKSELF and its hosting providers (in particular the internet network, the electricity network or the CUSTOMER’s access provider). Unavailability attributable to LOCKSELF’s hosting providers remains taken into account under the SLA, under the conditions of Article 9 bis.
• In the event of non-compliance with the SLA during a calendar month, the CUSTOMER may claim a single lump-sum penalty for that month, regardless of the number of breaches recorded during that month. Its amount depends on the highest criticality reached during the month and is equal to a percentage of the monthly fee, the monthly fee being understood as one twelfth (1/12) of the last annual invoice, according to the following scale: (i) Critical criticality: 30% of the monthly fee; (ii) Major criticality: 15% of the monthly fee; (iii) Minor criticality: 5% of the monthly fee.
Article 9. LIABILITY
In the performance of this Agreement, LOCKSELF is subject, by express agreement, to an enhanced best efforts obligation (obligation de moyens renforcée).
LOCKSELF’s liability, on whatever basis, may only be incurred for direct damages suffered by the CUSTOMER as a result of a contractual fault exclusively attributable to LOCKSELF and demonstrated by the CUSTOMER, within the limits set out below.
In the event of fault partially attributable to LOCKSELF and demonstrated by the CUSTOMER, LOCKSELF shall be liable to the extent of that share of liability, within the limits set out below.
The Services are used under the sole direction, control and responsibility of the CUSTOMER. The CUSTOMER guarantees, by way of porte-fort undertaking, compliance with the remainder of the Agreement by the Users. LOCKSELF uses its best efforts to implement reasonable technical and organisational measures to secure the personal data processed in the Services, in accordance with applicable personal data protection law and, more generally, to enable the Services to secure the data they process.
LOCKSELF cannot be held liable for indirect damages such as loss of customers or turnover, loss of business, damage to image or loss of opportunity, nor in the event of:
• Failures of telecommunications operators, in particular a failure of the CUSTOMER’s GSM or Wi-Fi network;
• Any abnormal or non-compliant use of the Services by the CUSTOMER;
• Any use of the Services for illegal purposes;
• Any defect in the CUSTOMER’s IT system;
• Any service performed for the CUSTOMER by a third party.
Finally, no liability shall be incurred by LOCKSELF in the event of non-performance or delayed performance of any obligation under the Agreement if such non-performance or delay results from a force majeure event or any event beyond LOCKSELF’s control.
The Parties agree that, in any event, LOCKSELF’s liability — all damages, all causes and all Users combined — is capped at 100% of the sums paid by the CUSTOMER under this Agreement during the twelve (12) months preceding the triggering event.
By way of exception, for direct damages resulting from a breach by LOCKSELF of its obligations of security, confidentiality or protection of personal Data, this cap is raised to 150% of the sums paid by the CUSTOMER during the twelve (12) months preceding the triggering event.
These caps apply including in the event of breach of an obligation deemed essential.
Not subject to any of these caps are bodily injury or death, as well as damages resulting from proven gross negligence or wilful misconduct (faute lourde ou dolosive), for which liability is governed by the general rules of law (droit commun).
The Parties acknowledge that the prices reflect this allocation of risk, that LOCKSELF has taken out the insurance mentioned in Article 11 ter, and that the amount of these caps is not derisory and does not contradict the scope of the obligations, even essential ones.
Article 9 bis – Subcontracting and infrastructure providers
The CUSTOMER acknowledges that the Services are provided by means of hosting infrastructures and cloud services operated by third-party providers selected by LOCKSELF.
LOCKSELF remains responsible for the proper performance of the Services and for compliance with the contractual service levels (SLA), including where these rely on services performed by subcontractors.
However, the Parties expressly agree that failures, interruptions or degradations of service exclusively attributable to the hosting or infrastructure providers, and not caused by a fault in selection, configuration, supervision or steering attributable to LOCKSELF, do not, as such, constitute gross misconduct by LOCKSELF justifying termination of the Agreement, provided that LOCKSELF implements, within reasonable timeframes, the appropriate corrective measures and the available workarounds or continuity solutions.
In such cases, the recorded breaches give rise, where applicable, to the exclusive application of the penalty or service-credit mechanisms provided for in Article 8 (SLA), to the exclusion of any early termination.
Article 10. SUPPORT
In connection with the CUSTOMER’s use of the Services, LOCKSELF makes available to all users user assistance documentation, available at https://support.lockself.com/
To enable the CUSTOMER to report any malfunctions of the Services, LOCKSELF opens a dedicated channel accessible via an internet browser at https://support.lockself.com/hc/fr/requests/new
The users in charge of project management, defined by mutual agreement between LOCKSELF and the CUSTOMER, are the only users authorised to report the aforementioned malfunctions via this channel.
Use of the channel https://support.lockself.com/hc/fr/requests/new is conditional on the users’ use of the latest version of the API and available applications.
Article 11. WARRANTIES
The CUSTOMER warrants (i) that it holds all rights and authorisations necessary to enable LOCKSELF to perform its obligations under this Agreement, in particular with respect to the Data; and (ii) shall indemnify and hold LOCKSELF harmless against any proceedings, action or claim by any User or third party in connection with the performance of this Agreement, and in particular arising from the Data used in connection with the Services.
LOCKSELF warrants (i) that it holds all rights and authorisations necessary to perform its obligations under this Agreement; (ii) shall indemnify and hold the CUSTOMER harmless against third-party claims alleging that the Services infringe their intellectual property rights, under the conditions, terms and liability limits set out in Article 15.5, which constitutes the exclusive regime of this warranty; and (iii) warrants the security of the Services under normal conditions of use by the Customer.
LOCKSELF undertakes to notify the CUSTOMER, without undue delay and at the latest forty-eight (48) hours after becoming aware thereof, of any fact or incident compromising the security of the Services.
LOCKSELF excludes all implied warranties, including warranties of merchantability or of fitness of the Services for a specific purpose, to the extent permitted by applicable law.
Without limiting the general nature of the foregoing, LOCKSELF neither represents nor warrants that the use of the Services will meet the CUSTOMER’s specific needs, or that such use will be uninterrupted, diligent, secure or error-free, subject to the conditions described in this Agreement.
Article 11 bis – Audit
The CUSTOMER may verify LOCKSELF’s compliance with its security obligations, subject to thirty (30) days’ prior written notice and to a limit of one (1) audit per year, by an independent auditor bound by a confidentiality obligation and not a competitor of LOCKSELF. The audit may relate neither to the source code nor to the data, environments or information of other customers, and is carried out during business hours without disrupting the Services. The audit costs are borne by the CUSTOMER.
Article 11 ter – Insurance
LOCKSELF declares that it holds professional civil liability insurance as well as insurance covering cyber risks, maintained in force throughout the term of the Agreement, and undertakes to provide evidence thereof upon simple request by the CUSTOMER.
Article 11 quater – Security, compliance and continuity
LOCKSELF implements the appropriate technical and organisational measures to ensure the security of the Services and the Data, in particular encryption of the Data in transit and at rest, access control and logging.
Where the CUSTOMER subscribes to the hosting option in a SecNumCloud-qualified region, the relevant Services are hosted on a SecNumCloud-qualified; failing this, hosting is provided, depending on the subscribed offer, on the cloud infrastructures of 3DS Outscale or Scaleway, which do not necessarily benefit from this qualification.
LOCKSELF provides daily externalised backups as well as a business continuity and disaster recovery plan whose objectives are specified in the Service Commitments appendix. Upon written request, LOCKSELF provides the CUSTOMER with documentation evidencing these measures (security policy, certifications, penetration test summary), such communication helping to limit the need for an on-site audit.
Article 12. PERSONAL DATA
The Parties agree to comply, respectively, with the regulations on personal data and in particular with French Law No. 78-17 of 6 January 1978 on information technology, data files and civil liberties, and with any applicable European regulation, in particular Regulation (EU) 2016/679 of the European Parliament and of the Council (GDPR), together with all recommendations, deliberations and other standards issued by the Commission Nationale de l’Informatique et des Libertés (CNIL) (hereinafter the “Data Protection Regulations”).
The CUSTOMER warrants that it will not process, in connection with the Services, sensitive data within the meaning of the law, and that it alone determines the purposes and means of the processing of personal data relating to the Data, as defined in the privacy policy.
Although LOCKSELF ensures the provision of the security and confidentiality measures set out in the Agreement for the Data, the Customer remains the controller and must therefore ensure compliance with the security measures proposed by LOCKSELF.
Article 12 bis – Reversibility, portability and personal data
The provisions of this Article 12 bis apply to the Services provided in SaaS mode.
12 bis.1 Export of non-personal Data
During the term of the Agreement, the CUSTOMER has functionalities for exporting non-personal Data and associated metadata via the administration interface of the Services, accessible to Users with administrator or moderator roles. These exports are provided in a structured, commonly used and machine-readable format.
12 bis.2 End of the Agreement – return terms
Upon termination of the Agreement, access to the Services is deactivated, subject to the provisions of Article 13.6 in the event of a change of provider. The CUSTOMER nevertheless retains the option to request the return of its non-personal Data for a period of 30 days following the end of the Agreement, through LOCKSELF’s support, without maintaining application access.
12 bis.3 Personal data and exercise of GDPR rights
The export functionalities referred to in this Article are not intended to allow the mass extraction of personal data. The rights relating to personal data (access, rectification, erasure, restriction, portability), as provided for by Regulation (EU) 2016/679 (GDPR), may be exercised at any time by the CUSTOMER or the data subjects by sending a request to the following address: dpo@lockself.com. LOCKSELF undertakes to process any admissible request within the applicable legal timeframes.
12 bis.4 Specific assistance
Any specific assistance in preparing or structuring the Data, beyond the standard exports and legal obligations, may be subject to separate invoicing that is reasonable, transparent and non-dissuasive.
12 bis.5 Deletion
Upon expiry of the return period mentioned above, LOCKSELF shall proceed with the definitive deletion of the Data, unless otherwise legally required.
Article 13 – Termination
13.1 Firm commitment
The Agreement is entered into for a firm and irrevocable term as defined in Article 5. The CUSTOMER expressly waives any right of early termination, except in the cases exhaustively provided for in this Article and in Articles 7.3 (Change in the Contractual Balance) and 17.1 (Force majeure).
13.2 Termination for LOCKSELF’s fault
The CUSTOMER may terminate the Agreement only in the event of a serious breach by LOCKSELF of its essential obligations. Such termination may only occur after a written formal notice (mise en demeure) by registered letter with acknowledgment of receipt, allowing LOCKSELF a minimum period of thirty (30) days to remedy the breach, that has remained without effect. It is specified that incidents or breaches attributable to third-party hosting or infrastructure providers, under the conditions defined in Article 9 bis, are not treated as a serious fault of LOCKSELF.
13.3 Financial effects of termination for LOCKSELF’s fault
In the event of termination validly declared for a fault exclusively attributable to LOCKSELF: only the fees corresponding to the unperformed period of the Agreement shall be reimbursed to the CUSTOMER, on a pro rata temporis basis; the CUSTOMER retains the right to obtain compensation for its direct damage, within the liability limits set out in Article 9. The sums corresponding to the periods already performed remain definitively acquired by LOCKSELF.
13.4 Termination for the CUSTOMER’s fault
In the event of a serious breach by the CUSTOMER, LOCKSELF may terminate the Agreement automatically (de plein droit) after a formal notice that has remained without effect. In this case, all sums due until the contractual term remain payable.
13.5 Exclusion of any other termination
Any termination for convenience, change of strategy, cessation of business, dissatisfaction not qualified as a serious fault, or any other cause not provided for in this Article, is expressly excluded.
13.6 Termination under the right to switch providers
By way of derogation from the provisions relating to the firm term of the Agreement, the CUSTOMER may terminate the Agreement solely to the extent necessary to exercise its right to switch providers, in accordance with Regulation (EU) 2023/2854 of the European Parliament and of the Council of 13 December 2023. Such termination takes effect with two (2) months’ written notice to LOCKSELF. Termination under this Article: (i) does not constitute termination for convenience; (ii) does not give rise to any reimbursement of fees already paid, nor to any credit for the unexpired commitment period; and (iii) entails the implementation of the Data reversibility and portability mechanisms provided for in Article 12 bis.
Article 14. CONFIDENTIALITY
Throughout the term of the Agreement and for five (5) years following its termination, each Party undertakes to respect the confidential nature of the Confidential Information and not to disclose it or make it available to third parties — except any chartered accountant, lawyer or other third party needing to know it for the proper conduct of the relevant Party’s business — without having obtained the prior written consent of the other Party, save by injunction of a court or any other administrative authority.
Furthermore, the Parties undertake to take the necessary measures to ensure, under their responsibility, compliance with their confidentiality obligations by all of their employees as well as by any other person who may have access to the information processed in connection with the performance of the Agreement.
The Parties shall not be bound by the confidentiality obligation mentioned above if, on the day of disclosure of the confidential information concerned, it had already fallen into the public domain, or if the confidential information concerned was developed by the other Party or obtained independently, without breach of the confidentiality obligation above, or if the information was lawfully accessible to third parties not bound by a confidentiality obligation.
Article 15 – Intellectual property and usage rights
15.1 Ownership of the software and Services
LOCKSELF is and remains the exclusive holder of all intellectual and industrial property rights relating to the LockSelf software, its modules (in particular LockPass, LockTransfer, LockFiles), the Solution, their documentation, their developments, updates, fixes, interfaces, architectures, algorithms and databases, as well as any component thereof, including the associated know-how, methods and processes. This Agreement does not entail any transfer of intellectual property to the CUSTOMER.
15.2 Licence to use
Subject to payment of the Subscription and compliance with the Agreement, LOCKSELF grants the CUSTOMER, for the term of the Agreement, a personal, non-exclusive, non-assignable and non transferable licence to use the Services, strictly limited to: (i) the CUSTOMER’s internal use; (ii) the number of subscribed Users; and (iii) the functionalities expressly provided for in the Specific Conditions.
15.3 Restrictions
The CUSTOMER shall refrain, in particular, directly or indirectly, from: copying, reproducing, representing, disseminating or distributing all or part of the Services, other than within the limits authorised by the Agreement; carrying out any form of reverse engineering, decompilation, disassembly or attempt to reconstitute the source code, save mandatory legal provision; modifying, adapting, translating or creating derivative works of the Services; making the Services available to third parties, whether free of charge or for consideration, including by rental, sublicence or access sharing.
15.4 Customer Data
The CUSTOMER remains the owner of the Data it processes via the Services. LOCKSELF acquires no rights over the Data, other than the rights strictly necessary for the performance of the Agreement.
15.5 Warranty against third-party IP claims (garantie d’éviction)
LOCKSELF warrants that the software and the Services do not infringe the intellectual property rights of third parties. In the event of a third-party claim in this respect, LOCKSELF shall take over the CUSTOMER’s defence, provided that it is informed without delay and retains the conduct thereof, and may, at its option, modify or replace the item concerned, obtain the right to continue using it, or, failing this, terminate the Agreement by reimbursing the sums paid for the unelapsed period. This warranty is exercised within the liability limits set out in Article 9.
15.6 Developments and feedback
The developments, improvements and fixes made by LOCKSELF, as well as the suggestions and feedback provided by the CUSTOMER, remain the exclusive property of LOCKSELF and may be freely integrated into the Services, without conferring on the CUSTOMER any right other than the licence to use provided for in the Agreement.
Article 16 – Personal data – Processing (subcontracting)
In the performance of the Agreement, the CUSTOMER acts as controller within the meaning of Regulation (EU) 2016/679, and LOCKSELF acts as processor on behalf of the CUSTOMER. LOCKSELF undertakes to: process the personal data solely on the CUSTOMER’s documented instructions; ensure the confidentiality of the data; implement appropriate security measures; and assist the CUSTOMER, within the limits of its reasonable means, in responding to requests to exercise the rights of data subjects and in meeting the CUSTOMER’s legal obligations.
LOCKSELF notifies the CUSTOMER of any personal data breach concerning it as soon as possible and at the latest forty-eight (48) hours after becoming aware thereof. The use of a new sub-processor is subject to prior information of the CUSTOMER, which may object to it on legitimate grounds relating to the protection of the Data. The exercise of rights must be done by email to the address dpo@lockself.com. The detailed conditions applicable to the processing of personal data are set out in a “Data Protection” appendix (DPA) forming an integral part of the Agreement.
Article 16 bis – Regulatory cooperation
Where the CUSTOMER is subject to sector-specific regulation (in particular Regulation (EU) 2022/2554 known as “DORA” or Directive (EU) 2022/2555 known as “NIS2”), LOCKSELF cooperates, in a proportionate manner and within the limits of its legal obligations, in the CUSTOMER’s compliance, by providing the necessary information, assistance in the event of an incident, and implementation of the reversibility plan provided for in Article 12 bis.
Article 17. MISCELLANEOUS
17.1. Force majeure
In the event of force majeure or any other cause beyond the foresight and control of one of the Parties and of a nature to prevent it from performing its contractual obligations under the conditions provided for in Article 1218 of the French Civil Code, the prevented Party must inform the other Party by any means as soon as possible, with confirmation by registered letter with acknowledgment of receipt. The obligations of the Parties shall be suspended for the entire duration of the force majeure, and the Parties shall use all their efforts to limit the duration and effects of the cause of force majeure.
However, in the event that the suspension of the obligations arising from the Agreement lasts more than one (1) month, each Party shall be entitled to terminate the Agreement automatically (de plein droit), by registered letter with acknowledgment of receipt. In this case, termination shall take effect fifteen (15) days after receipt of said letter.
17.2. No waiver
The fact that either Party does not, on one or more occasions, avail itself of one or more provisions of the Agreement does not imply a waiver by that Party of its right to avail itself thereof subsequently.
17.3. Independence
LOCKSELF is an independent professional and not an employee of the CUSTOMER. The Agreement does not create any relationship of subordination or any joint venture between the Parties.
17.4. Compliance and ethics
Each Party undertakes to comply with the applicable laws on anti-corruption, international sanctions and data protection, and to adopt loyal and ethical conduct in the performance of the Agreement.
17.5. Subcontracting
Under this Agreement, LOCKSELF reserves the right to subcontract all or part of the Services to any provider of its choice, which the CUSTOMER accepts. LOCKSELF undertakes to communicate to the CUSTOMER the list of providers performing subcontracting and to keep the CUSTOMER informed of changes of provider.
17.6. Commercial references
The CUSTOMER authorises LOCKSELF, during the contractual relationship, to use its corporate name and trademarks as a commercial reference, as well as a general description of the services provided to the CUSTOMER by LOCKSELF, in its marketing and commercial presentations, customer files, press releases, websites and other promotional materials.
17.7. Headings
The titles of the various articles of the Agreement have been adopted for convenience only and shall not have any influence or in any way affect the meaning or content of any term, provision, undertaking or condition thereof.
17.8. Partial invalidity
If one or more provisions of the Agreement are held to be invalid or declared as such pursuant to a law, a regulation or a final decision of a competent court, the other provisions shall retain their full force and scope.
17.9. Survival
It is agreed that any clause which by its nature must survive the termination of the Agreement shall remain in force in the event of expiry or termination of the Agreement, for any reason whatsoever, as well as the provisions of Articles 9 (Liability), 12 (Personal Data), 12 bis (Reversibility), 14 (Confidentiality) and 15 (Intellectual property and usage rights).
17.10. Assignment of the Agreement
The Agreement may not be assigned or transferred, in whole or in part, for consideration or free of charge, by the CUSTOMER without the prior written consent of LOCKSELF, such consent not to be withheld without legitimate grounds. For its part, LOCKSELF is authorised to assign or transfer the Agreement, in whole or in part, in any capacity and in any form whatsoever, to any third party. It is understood that, in such a case, the assignee undertakes to assume all the obligations incumbent on LOCKSELF under this Agreement and shall thus ensure the continuity of compliance with the Agreement.
17.11. Amicable settlement
In the event of any dispute, disagreement or claim arising out of or relating to the Agreement (and in particular any dispute concerning the validity, interpretation, breaches or termination of the Agreement) (hereinafter the “Dispute”), the Parties shall attempt, before submitting such a Dispute to the court referred to in the “Governing law and territorial jurisdiction” article, to find an amicable solution to their Dispute.
First, one of the Parties shall send the other Party a request for a conciliation meeting by registered letter with acknowledgment of receipt (hereinafter the “Conciliation Notice”). If an agreement is reached within thirty (30) days from receipt of the Conciliation Notice, it must be formalised in writing and signed by the Parties. Such a written and signed agreement shall be considered an amendment to the Agreement.
Failing an amicable solution within this thirty (30)-day period following receipt of the Conciliation Notice, the Dispute shall be submitted by one of the Parties to mediation at the Centre de Médiation et d’Arbitrage de Paris (CMAP – 39, avenue F. D. Roosevelt – 75008 PARIS) in accordance with its mediation rules, to which the Parties declare they adhere. Unless otherwise agreed between the Parties, the duration of the CMAP mediation shall be set at a maximum of two months. The Parties shall share equally the cost of the CMAP mediation procedure. However, each Party shall bear its own lawyers’ fees and costs.
At the end of the CMAP mediation procedure, if the Parties have not reached an agreement to resolve the Dispute, the Parties recover their freedom of action.
17.12. Governing law and territorial jurisdiction
The Agreement is governed by French law.
In the event of a dispute relating to the Agreement, and in particular to its validity, performance or interpretation, the Parties shall endeavour to settle their dispute amicably under the conditions provided for in the “amicable settlement” article above. Failing an amicable agreement within the period provided for in said article, express jurisdiction is granted to the Commercial Court of Paris (save exclusive jurisdiction recognised to a different court), notwithstanding plurality of defendants or third-party proceedings, and even for urgent proceedings or protective/interim proceedings by way of summary proceedings (référé) or petition.
17.13. Language
This Agreement is a translation of the French-language version. In the event of any discrepancy or conflict of interpretation between the two versions, the French version shall prevail.