Update February 8, 2023: OVH cloud condemned at first instance by the Commercial Court of Lille judgment of January 26, 2023
"In this case, making backup copies and keep them safe, in particular in case of sinister Or of fire, is an essential obligation from CONTRACT. Clause 7.7 of the OVH contract therefore deprives of its substance the essential obligation of SAS OVH and must therefore be deemed not written. »
[…]
" In this case, the limitation of liability clause established by SAS OVH grants an unjustified advantage to the latter in the absence of consideration for the customer. This clause creates a real asymmetry between them obligations of each Parties. Ultimately, this clause transfers the risk to the other party in an unjustified way and without consideration for this last. »
Be accompanied by a lawyer specializing in computer law as part of your IT contracts. Disputes relating to computer law can be numerous. These may include counterfeit hardware issues, data loss issues, contract termination, etc. A lawyer specializing in computer law can help you.
Computing continues to grow in our society over the years. At the heart of the digital transformation, it is appropriate for professionals, and in particular for companies, to ensure their protection to prevent possible IT disputes.
In order to protect itself, a company can set up IT contracts as part of the management of its IT equipment. Several types of services can be defined in an IT contract. This can be installation, development, maintenance or support services on a computer system.
Are you faced with a dispute over computer law? Would you like to find out about the IT contracts that you can put in place to protect yourself? Stone of Roquefeuil, lawyer specializing in computer law at Paris accompanies you to advise you and defend your interests.
IT contract and the lawyer specializing in computer law, in Paris
A computer contract can be established in the context of a sale, rental or provision of services, concerning a computer system or an integrated element. It can be hardware (computers, IT equipment, peripherals, etc.) or software (software developed by a service provider or standard software).
IT contracts must be drawn up with care to prevent any technical changes or changes in use. The development of IT contracts is therefore technical and complex, the contract must be drafted with vigilance.
The IT contract must mention several essential information in particular in connection with the problems of intellectual property or even protection of personal data. In addition, several characteristics must be defined in the contract. Indeed, must appear: the implementation schedule or the scope concerned by the contract.
A lawyer specializing in computer law can help you draft your contract in due form.
What are the different IT contracts? A lawyer specializing in computer law answers you:
The maintenance contract and the IT lawyer
Otherwise called SLA (Service Level Agreement), the maintenance contract allows the customer to determine his expectations relating to the maintenance of his computer equipment that the computer service provider must have towards him.
Thus, the maintenance contract has the effect of defining the rights and duties of both parties: the customer and the service provider. This must mention the scope of the equipment, the services covered by the contract, the duration of the contract, the quality of the service provided, etc.
When drawing up the contract, a distinction should nevertheless be made between corrective maintenance and preventive maintenance:
- Corrective maintenance aims to repair operating errors,
- Preventive maintenance concerns the periodic checks that must be carried out to detect any malfunctions, damage or obsolescence of the equipment.
The system integration contract
System integration is defined by the assembly of the various IT components of a company, whether they are hardware: computer, server, network equipment, telephones, etc. ; or intangible: software, applications, etc.
The system integration contract must cover different aspects:
- Material aspects: supply and installation
- Software aspects: as well as their interfacing
- The wiring
- Training
- Start-up assistance
- Maintenance
- The deployment
A service provider has an obligation to advise and warn its client under a systems integration contract.
The Software License Agreement and computer law attorney
A license agreement relates only to the software. This may be a sales or rental license agreement. This precisely defines the rights given by the author of the software to the other party. It details the rights of use, the rights of reproduction, the rights of modification or the rights of adaptation of the software in question.
Just like the aforementioned contracts, the software license contract must mention the identification of the two parties, its object, the date of entry into force and the date of end, the general and specific provisions.
IT hosting contract
The computer hosting contract is one of the most widespread. This consists of delimiting an IT service that allows the hosting of numerous resources on a server. Also, it mentions the conditions of management or evolution of the client over time.
To this end, the IT hosting contract is therefore a commitment to storage capacity and a guarantee of data availability. The contract must contain a reversibility clause allowing customers to recover all of their data.
Finally, the host must in this contract, commit to the confidentiality of the information that will be hosted. It must also specify the procedures applied in the context of resource security. This applies in particular to hacking or any malicious act of computer threat.
The contract for the sale or rental of computer equipment
The contract for the sale or rental of computer equipment allows a company to rent computer equipment. It can be made for computers or computer systems. It can also be the rental of software or software packages.
The contract for the sale or rental of computer equipment may be of short duration. For example, for the replacement of a device that has just broken down. It can be entered into to meet an urgent or even unforeseen need such as an increase in activity.
The IT equipment rental contract is generally concluded for a period of 3 years. It must include an upgrade clause that allows the customer to renew the hardware after 15 to 30 months. This in order to benefit from new features without a price increase.
The service provider must for its part carry out the repairs and maintenance of the equipment it rents. Also, it has a warranty obligation. As a result, it guarantees the proper functioning of the equipment. He must therefore intervene in the event of malfunction of the rented device following a hidden defect or a breakdown.
Finally, for his part, the customer undertakes to use the property in a reasonable manner and to return it to the service provider at the end of the rental contract.
The outsourcing contract or outsourcing contract and the IT law lawyer in Paris
It aims to entrust a function or service to a specialized external service provider. The service provider must therefore ensure that the service is provided in accordance with the service levels. The performance and responsibilities specified in the specifications must be respected.
Using an external service provider allows the requesting company to focus on its main mission.
Obligations of the parties in an IT contract. Hire a lawyer in Paris specializing in computer law
As in any contract, the parties agree to each other to respect certain obligations. What are they ?
The service provider's obligations
The service provider must respect a certain number of obligations in return for his remuneration:
- He undertakes to provide all the information on the various issues of the contract to the client,
- He must advise his client on the choices he will have to make within the framework of the project. The service provider's expertise will allow the customer to benefit from all the useful information. This will then allow him to choose the best solutions for his project,
- The service provider is required to keep his client informed if a danger or risk occurs during the service.
Customer's obligations
Then, the customer, for his part, is also required to respect certain obligations within the framework of an IT contract:
- The customer agrees to pay the service provider the price agreed upon prior to the contract,
- It must be able to enable the service provider to perform its service properly,
Duration of the IT contract: is it possible to terminate it before its term? How to handle breach of contract?
In the event that the contract determines a duration, the contract then ends once the service has been completed. Nevertheless, it remains possible to interrupt the contract before the end date, provided that both parties agree. The decision to end it must be recorded in writing. In addition, the contract can also be renewed if both the service provider and the customer agree.
If the contract does not provide for an end date, it is possible for the service provider and for the customer to terminate it at any time. The decision must be made in writing. It will however be necessary to respect a notice defined by the users or by certain professional agreements. Both parties, one like the other, may demand compensation for damages suffered in the event of a sudden, violent or unpredictable breach of a computer contract.
Specifications, obligation to advise, agile method, acceptance report, evolutionary and corrective maintenance, sequestration of the source code, IT expertise, termination for exclusive wrongs, so many concepts to master to consider the implementation of a new software, a new ERP, a new system, or consider a breach of contract.
You wish to be accompanied by a lawyer specializing in computer law in order to obtain advice on drawing up an IT contract? Do you encounter disputes related to computer law?
Stone of Roquefeuil, lawyer specializing in computer law at Paris, accompanies you to advise you and to ensure that your interests are respected.
See as well :
The agile method: https://roquefeuil.avocat.fr/contrat-informatique-et-methode-agile/
Ord. no. 2021-1658, 15 Dec. 2021, relating to the devolution of intellectual property rights on assets obtained by authors of software or non-salaried inventors or public officials hosted by a legal person carrying out research: JO 16 dec. 2021
The problem of access to source code
The company may have difficulties with the publisher of its software, which asks exorbitant sums to carry out the maintenance, and may want to keep the software by having it maintained by a third-party service provider.
To be able to modify the software, to maintain it, it is necessary to be able to modify the source code therefore to have this code, that is to say the version written in a programming language, understandable by man, unlike the object code binary, executable and understandable only by the machine.
However, the publisher of software generally delivers only the executable version, the one that is understandable by the computer. Publishers are often very reluctant to hand over this source code because they fear that their know-how and their investment will be stolen.
It will be a question of setting up an escrow contract to find a balance between the rights of the user and those of the software publisher. But such a contract does not always exist. And existing contracts can be laconic or unsatisfactory when it comes to the “maintenance” component.
The reference articles are the articles L. 122-6 and L. 122-6-1 of the Intellectual Property Code.
Article L122-6
Version in force since May 11, 1994, Amended by Law No. 94-361 of May 10, 1994 – art. 4 () JORF May 11, 1994
Subject to the provisions of Article L. 122-6-1, the right of exploitation belonging to the author of software includes the right to perform and authorize:
1° The permanent or temporary reproduction of software in whole or in part by any means and in any form. To the extent that the loading, display, execution, transmission or storage of this software requires reproduction, such acts are possible only with the permission of the author;
2° The translation, adaptation, arrangement or any other modification of software and the reproduction of the resulting software;
3° The placing on the market for consideration or free of charge, including rental, of the copy or copies of software by any process. However, the first sale of a copy of software in the territory of a Member State of the European Community or of a State party to the Agreement on the European Economic Area by the author or with his consent exhausts the right to put this copy on the market in all Member States, with the exception of the right to authorize the subsequent rental of a copy.
Article L122-6-1
Version in force since November 26, 2021, Amended by Ordinance No. 2021-1518 of November 24, 2021 – art. 2
I. The acts provided for in 1° and 2° of Article L. 122-6 are not subject to the authorization of the author when they are necessary to allow the use of the software, in accordance with its intended purpose, by the person having the right to use it, including to correct errors.
However, the author is entitled to reserve by contract the right to correct errors and to determine the specific terms and conditions to which the acts provided for in 1° and 2° of Article L. 122-6 will be subject, necessary to allow the use of the software, in accordance with its intended purpose, by the person having the right to use it.
II. The person having the right to use the software can make a backup copy when this is necessary to preserve the use of the software.
III. The person having the right to use the software can without the authorization of the author observe, study or test the operation or the safety of this software in order to determine the ideas and principles which are at the base of any element of the software when it performs any operation of loading, displaying, executing, transmitting or storing the software that it is entitled to perform.
IV. The reproduction of the software code or the translation of the form of this code is not subject to the authorization of the author when the reproduction or the translation within the meaning of 1° or 2° of article L. 122 -6 is essential to obtain the information necessary for the interoperability of software created independently with other software, provided that the following conditions are met:
1° These acts are carried out by the person having the right to use a copy of the software or on his behalf by a person authorized for this purpose;
2° The information necessary for interoperability has not already been made easily and quickly accessible to the persons mentioned in 1° above;
3° And these acts are limited to the parts of the original software necessary for this interoperability.
The information thus obtained cannot be:
1° Nor used for purposes other than achieving the interoperability of independently created software;
2° Neither communicated to third parties unless this is necessary for the interoperability of software created independently;
3° Nor used for the development, production or marketing of software whose expression is substantially similar or for any other act infringing copyright.
V.-The acts mentioned in 1° of Article L. 122-6 are not subject to the authorization of the author when they are carried out for the purposes and under the conditions mentioned in 8° of Article L. 122-5.
VI.-The acts mentioned in 1° and 2° of Article L. 122-6 are not subject to the authorization of the author when they are carried out for the purposes and under the conditions mentioned in III of the article L.122-5-3.
VII.-The acts mentioned in article L. 122-6 are not subject to the authorization of the author when they are carried out for the purposes and under the conditions mentioned in 12° and 13° of article L 122-5.
VIII. This article shall not be construed as permitting to interfere with the normal operation of the software or to cause unreasonable prejudice to the legitimate interests of the author.
Any stipulation contrary to the provisions set out in II, III and IV of this article is null and void.
The service provider may therefore be forced to hand over the source code, under penalty, by the judge, who will check whether or not the maintenance should be carried out by the publisher, according to the terms of the contract, and whether the handing over of the source code and its technical documentation is essential for carrying out maintenance.
The new order for payment procedure – the opinion of the commercial lawyer
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