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GENERAL TERMS OF SERVICES
CLAUSE 1. DEFINITIONS
In this Contract, the terms, words, and expressions below shall have the following meaning unless
explicitly indicated otherwise:
1.1 ”Access Code” means the username and password chosen by the Client to use the Service, give
access to the Service, and change or eliminate access rights to the Service, using the web administration
interface of the Service made available to the Client by Diabolocom.
1.2 “Additional Fees” means the charges payable as set out in clause 3.2.
1.3 "Affiliate” means any legal entity that controls, is controlled by or is under the same control as a
Party.
1.4 “Contract” means the agreement between Diabolocom and the Client to supply Diabolocom
Equipment and Services under the Purchase Order, these General Terms of Services, the Special Terms
of Service, and Data Protection Agreement (DPA) and any annex referred to.
1.5 "Business Days" means a day other than a Saturday, Sunday, or public holiday in France.
1.6 “Fees” means the sums payable for the Services, including but not limited to Non-Recurring Fees,
Recurring Fees, Additional Fees, Early Termination Fees and the Usage Fees due for the Service.
1.7 ”Client" means the Party identified in the Purchase Order who contractually receives the Service.
1.8 "Client Data” means all computerized or electronic communications data sent to Diabolocom by the
Client, as stated in clause 2.6.
1.9 “Client Equipment” means any electronic communications equipment provided by the Client during
the installation of the Services, as set out in clause 2.3.
1.10 “Client Site” means the site(s) occupied by the Client or its Other Users on which the Service is
delivered.
1.11 ”Confidential Information” refers to the Contract’s provisions and the information, written or oral,
which is not in the public domain, related to the Contract.
1.12 “Communications Centre” means an electronic communications infrastructure composed of
hardware, software, and networks of Operators used by Diabolocom to provide the Services to the Client,
which may be located in multiple sites in France or abroad and without Diabolocom always being able to
identify the location of the Client's Data within the Communications Centre.
1.13 “Data Protection Legislation”: the French Data Protection Legislation and the General Data
Protection Regulation ((EU) 2016/679) and any other directly applicable European Union regulation
relating to privacy.
1.14 "Effective Date of Service Provision" means the date on which the Service is ready to be used for
the first time by the Client.
1.15 ”Diabolocom” means DIABOLOCOM, French Société par Actions Simplifiée, registered in France
with company number 482 652 401.
1.16 ”Diabolocom Client Support Centre ” means Diabolocom support service provided to the Client
DIABOLOCOM – French Société par Actions Simplifiée with a capital of 150.000 € - Siret 482 652 401 00035 - TVA FR94482652401
20, rue de la Paix 75002 Paris, FRANCE - Tél. +33 (0)1 73 03 45 00 - APE 5829C
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in accordance with this Contract, which may be reached at the following telephone number: +33 (0)1 73
03 45 20.
1.17 “Diabolocom Equipment” means any items and facilities (including terminals, cables, lines of
communication, ports, routers, switches, cabinets, shelves, private rooms, and Communications Centre)
provided by Diabolocom pursuant to the Contract as set out in the Purchase Order.
1.18 ”Early Termination Fees” means the charges for early interruption of the Service as set out in
clause 4.5 and Special Terms of Service.
1.19 "Early Termination” has the meaning given to it by clause 4.5.
1.20 "Excusable Event” has the meaning given to it by clause 6.2.
1.21 "Recurring Fees” means the recurring fixed charges payable annually, semi-annually, quarterly, or
monthly by the Client and determined in the Purchase Order.
1.22 "Force Majeure Event” has the meaning given to it by clause 8.1.
1.23 ”General Terms of Services ” means these terms.
1.24 "Improper use” means the use or misuse of the Services by the Client in breach of the Contract as
further described in clause 4.2.
1.25 "Initial Period” has the meaning given to it by clause 4.1.
1.26 "Notice” has the meaning given to it by clause 8.4.
1.27 "Other User” has the meaning given to it by clause 8.2.2.
1.28 "Operator" means the electronic communications operator which, in accordance with a separate
agreement with Diabolocom, supplies the Communications Centre with access to the capacities of its
electronic communications network.
1.29 ”Party” or the ”Parties” means Diabolocom and/or the Client, together or individually. A reference
to any party shall include that party's personal representatives, successors, and permitted assigns.
1.30 ”Personal Data” has the meaning given to it by Regulation (EU 2016/679) of the European
Parliament and of the Council on the protection of personal data.
1.31 ”Purchase Order” means the Client’s order for the supply of Services specifying the Client,
Diabolocom Equipment, the Services, the Fees, and the Initial Period signed by the Client and accepted
by Diabolocom.
1.32 "Renewal Period” has the meaning given to it by clause 4.1.
1.33 ”Resale” has the meaning given to it by clause 8.2.
1.34 “Service” means any service provided by Diabolocom, as defined by the Special Terms of Service
and as set out in Purchase Order.
1.35 “Service Access Information” has the meaning given to it by clause 2.5.
1.36 “Service Availability Notice” has the meaning given to it by clause 3.1.
1.37 “Service Availability Objective” means the objective of availability of the Service as set out in the
Special Terms of Service.
DIABOLOCOM – French Société par Actions Simplifiée with a capital of 150.000 € - Siret 482 652 401 00035 - TVA FR94482652401
20, rue de la Paix 75002 Paris, FRANCE - Tél. +33 (0)1 73 03 45 00 - APE 5829C
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1.38 “Service Restauration Objective” means the objective of restoration of the Service as set out in
the Special Terms of Service.
1.39 "Service Outage" means any event which is not a normal operation of the Service and which causes
an interruption, degradation, or change in the quality of the Service in the absence of any Excusable
Event. A Service Outage is classified as follows: (i) "Critical Outage", meaning a total or partial unplanned
interruption of the Service which severely affects the operation of the Service during a period of intensive
use; (ii) "Major Outage", meaning a) either a serious degradation without interruption of the Service which
seriously affects the operation of the Service, or b) total or partial unplanned interruption of the Service
which seriously affects the operation of the Service during a period of low use; (iii) "Minor Outage",
meaning faults which partially degrade the features or quality of use of the Service.
1.40 ”Service Quality Objectives" means the Service Availability Objective and the Service Restauration
Objective as set out in the Special Terms of Service.
1.41 "Service Suspension” has the meaning given to it by clause 4.2.
1.42 ”Non-Recurring Fees” means the charges payable by the Client for the installation of the Service
as set out in the Purchase Order and payable in accordance with clause 3.2.
1.43 ”Special Terms of Service” means the terms specific to a Service, including a description or
specification of the Service and the Service Quality Objectives.
1.44 ”Third Party Claim” means any legal proceedings, request, or claim brought against Diabolocom
resulting from an Improper use of the Services.
1.45 "Usage Fees” means the charges payable by the Client for the Services on a pay-per-use basis set
out in the Purchase Order.
CLAUSE 2. PROVISION OF THE SERVICE
2.1 Diabolocom’s obligations
Diabolocom shall provide the Service in accordance with the Purchase Order(s), the Service Quality
Objectives, and the other provisions described in the Special Terms of Service.
Diabolocom reserves the right to amend the Services, if necessary, to comply with any applicable law or
regulatory requirement or if the amendment will not materially affect the nature or quality of the Services.
The Supplier shall notify the Client in any such event.
Diabolocom shall obtain and maintain all necessary licenses and consents which may be required for the
provision of the Services.
2.2 Diabolocom Equipment
Unless otherwise agreed in writing, the Equipment shall remain the property of Diabolocom.
Risks in Diabolocom Equipment shall pass to the Client on Delivery at the Client’s Site until returned to
Diabolocom.
The Client shall keep Diabolocom Equipment insured on Diabolocom’s behalf for their total price against
all risks with an insurer that is reasonably acceptable to Diabolocom.
The Client shall maintain Diabolocom Equipment in good condition until returned to Diabolocom and shall
not dispose of or use Diabolocom Equipment other than in accordance with Diabolocom's written
instructions or authorization.
The Client shall not at any time sell or offer for sale, assign, mortgage, or otherwise deal with Diabolocom
DIABOLOCOM – French Société par Actions Simplifiée with a capital of 150.000 € - Siret 482 652 401 00035 - TVA FR94482652401
20, rue de la Paix 75002 Paris, FRANCE - Tél. +33 (0)1 73 03 45 00 - APE 5829C
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Equipment or any part thereof, and Diabolocom may terminate the Contract with immediate effect upon
written Notice in the event of the Client making any attempt to do so.
2.3 Client’s Equipment
At the Client's request, Diabolocom may install Client Equipment. Diabolocom shall not be held
responsible for the use or maintenance of the Client's Equipment. Diabolocom shall have no obligation or
duty or liability regarding the configuration, management, performance, or any other questions regarding
any of the Client Equipment. The Client shall notify Diabolocom of any changes that may be made to the
Client's Equipment. Diabolocom may then reject any change if this change may cause interference with
the Equipment and/or the Service.
2.4 Maintenance of the Service
Diabolocom shall manage Service Outages following incidents detected by Diabolocom or reported by
the Client. Diabolocom agrees to (i) notify the Client of the Service Outages and other operational faults
and (ii) send to the Client, to the extent possible, at least seven (7) days before the desired intervention
date a report on the changes to be made to the Service level to prevent foreseen problems over the short
term or following repetitive incidents, (iii) cooperate in good faith with the Client in order to try and reduce
the disruptions that the maintenance might cause; (iv) obtain the Client's approval regarding the date(s of
the intervention only in cases where the maintenance exclusively affects Diabolocom Equipment
dedicated to the Client or to carry out the maintenance outside periods of intensive use of the Service,
between eight pm (20:00 ) and six am (6:00), Paris, FR time (v) conduct the planned intervention (on the
date agreed by the Client if (iv) above applies).
The Client shall follow, or forward to any third party acting on its behalf, Diabolocom’s recommendations
and notices in order to avoid any Service Outages. If the Client fails to do so, 1) Diabolocom may refrain
from responding to every alarm or alert issued during the monitoring and maintenance of the Service if its
recommendations or notices have not been acted upon, 2) the Client shall pay Additional Fees in the
event of a Service Outage.
2.5 Cooperation of the Parties and access to the Service
The parties shall cooperate in all matters relating to the provision of the Services. The Client shall appoint
a project manager who shall have the authority to contractually bind the Client on matters relating to the
Services. The project manager shall be responsible for monitoring the performance of the Service and
shall have the necessary technical knowledge to express the Client’s needs. The Client shall immediately
inform Diabolocom in writing in the event of a change of its project manager.
The Client shall: (a) determine the initial security rules and the list of users authorized to access the
Service(s) (the "Service Access Information") and provide the Service Access Information to Diabolocom
in writing; (b) inform Diabolocom in writing of any changes to the Service Access Information; (c) use the
Access Codes in accordance with Diabolocom’s reasonable instructions which may be modified from time
to time. The Client shall be exclusively responsible for the security of an Access Code. The Client shall
immediately notify Diabolocom of the loss, theft, or fault of an Access Code or the fact that it has reason
to believe that the security of an Access Code has been compromised. Diabolocom may immediately
disable and replace an Access Code (or ask the Client to select a new one). Diabolocom reserves the
right to suspend access to the Service through the use of an Access Code if one of the following events
occurs and until the Access Code is replaced by Diabolocom or the Client chooses another one
(depending on the case), or the problem resulting in the suspension is resolved in a manner satisfactory
for Diabolocom: (i) Diabolocom receives a Notice from the Client as described above; (ii) Diabolocom has
legitimate grounds to suspect that an Access Code has been compromised; (iii) a Service Suspension;
(iv) Diabolocom has legitimate grounds to suspect that the Client has not respected, is not respecting, or
is not going to respect its obligations arising from the Contract; (v) Diabolocom has other legitimate
grounds to suspend the access through the use of the Access Code concerned.
The Client shall be responsible for any access to the Service through its Access Code and for any use of
a Service, particularly for controlling (a) fraud and any other unlawful use of its Access Code, (b)
unauthorized changes, and any other unauthorized behaviour, and (c) any suspicious use or other
suspicious activity using its Access Code.
DIABOLOCOM – French Société par Actions Simplifiée with a capital of 150.000 € - Siret 482 652 401 00035 - TVA FR94482652401
20, rue de la Paix 75002 Paris, FRANCE - Tél. +33 (0)1 73 03 45 00 - APE 5829C
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2.6 Use of the Service by the Client
The Client shall ensure during the Contract that its infrastructure (resources, software, networks, or
hardware and other Client Equipment) used to connect to or use the Service is sound and not likely to
disrupt the operation of all or part of the Diabolocom Equipment and the Service.
The Client is responsible for the physical and logical security of its own infrastructure. The Client shall
ensure that the elements (such as software or hardware) integrated by the Client into its infrastructure or
used in relation to the Service are free of all viruses, logic bombs, Trojan horses, or any other harmful or
destructive program. The Client shall remain responsible for the use of its infrastructure and of the Service,
and in particular for ensuring that there is no a) fraud and any other unlawful use, (b) unauthorized
changes and any other unauthorized behaviour, and (c) suspicious use or other suspicious activity.
The Client acknowledges that:
• Data transmissions on electronic communications networks only have relative reliability; data
circulates on heterogeneous networks with diverse technical characteristics and capacities,
which are sometimes saturated or even unavailable at certain times of the day.
• Where the Services include data storage of Client Data, the Communications Centre may be
located anywhere within EU territory, and the Client Data may be processed and stored
anywhere within the EU. By using the Services, the Client consents to this processing and
storage of Client Data (in accordance, where applicable, with clause 7).
• Diabolocom’s security measures to protect the Communications Centre, the Equipment, and,
more generally, the Services against accidental or unlawful destruction, loss, alteration,
unauthorized disclosure, or access cannot be considered absolute or infallible.
The Client shall obtain and maintain all necessary licences, permissions, and consents which may be
required for the use of the Client Data and the Services before the date on which the Services are to start.
The Client shall ensure that it has in place hardware and software maintenance agreements necessary
for the performance of the Contract, in particular in relation to the Client's Equipment mentioned in clause
2.3.
The Client shall give Diabolocom the right (free of charge) to download, post, distribute, copy, and store
any of the Client's Data in order to enable Diabolocom to perform the Contract.
The Client is responsible for all of the Client Data (including its use and access) through the Service. The
Client declares and warrants that in respect of any of the Client’s data, (a) the Client is authorized to give
the rights described above, (b) the Client Data and its use do not violate or infringe upon any property,
confidentiality, Personal Data or consumer protection rights, or other rights of third parties, (c) the Client
Data does contain any viruses, logic bombs, or other unlawful code and (d) is not unlawful.
If Diabolocom reasonably determines that an element (i) of the Client's Equipment or (ii) the Client Data
creates or is likely to create an unsafe situation and informs the Client of this, the Client will take all
necessary measures to correct it. If the Client cannot resolve the issue within a reasonable time,
Diabolocom may immediately suspend the Service and/or delete the element concerned.
CLAUSE 3. BILLING AND PAYMENT TERMS
3.1 Availability of the Service
Once the Service is installed and the necessary checks have been performed by Diabolocom,
Diabolocom shall inform the Client that the Service is available (hereafter referred to as Service
Availability Notice).
The Client shall, within 48 hours of the Service Availability Notice, provide Diabolocom with its
reservations failing which the Service will be deemed to be accepted by the Client and deemed to start
from the date of the Service Availability Notice. For the avoidance of doubt, Recurring Fees and/or Usage
Fees shall be payable to Diabolocom in accordance with clause 3.2, whether or not the Client is ready to
DIABOLOCOM – French Société par Actions Simplifiée with a capital of 150.000 € - Siret 482 652 401 00035 - TVA FR94482652401
20, rue de la Paix 75002 Paris, FRANCE - Tél. +33 (0)1 73 03 45 00 - APE 5829C
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accept the delivery of the Service.
Where the Client has provided Diabolocom with its objections within the time imparted above, the Parties
will have a period of five (5) business days to reach an agreement on the corrections necessary.
Diabolocom shall send a second Notice specifying the new Effective Date of Service Provision.
If an agreement cannot be reached within forty-eight (48) hours, Diabolocom may terminate the Service
with immediate effect without compensation due to either Party. Diabolocom may require the payment by
the Client of the Non-Recurring Fees.
3.2 Fees
In consideration of the provision of the Services by Diabolocom, the Client shall pay the Fees. The Non-
Recurring Fees shall be paid on the Effective Date of Service Provision.
Recurring Fees shall be paid in advance, on a monthly basis, from the Effective Date of Service Provision
unless provided otherwise in the Purchase Order. Recurring Fees calculated prorated on a daily basis
shall be paid between the Effective Date of Service Provision and the start date of the first monthly billing
period.
The Usage Fees shall be paid in advance on a monthly basis for the use of the Service for the past
calendar month.
When the Usage Fees are billed by the pricing period, each period started is due and payable in full and
not reduced in proportion to the use of the Service by the Client.
"Additional Fees" shall be paid in the following events:
a) Correcting a problem with the equipment, software, or service and the engineer does not have
immediate access to such equipment or software, or services due to the Client or its service
providers;
b) Correcting a problem with the equipment or software or service resulting from an update,
reconfiguration, or modification of the Client's equipment carried out by the Client or its service
providers, without having obtained the prior written consent of Diabolocom;
c) In response to a request from the Client in the absence of a problem being identified with any
equipment or software, or service;
d) Is carried out in response to a request from the Client for a problem already encountered (or
anticipated by Diabolocom) and has been the subject of recommendations or warnings from
Diabolocom that were not followed by the Client and/or its service providers; and
e) is necessary to complete an installation of equipment or software or a service which needed to
be made by a date established by joint agreement between the Parties and which could not be
completed because the Client was not ready when said technician initially arrived at the Client's
Site.
3.3 Payment of Invoices
Invoices are issued monthly. Any Fees charged shall be paid within a maximum of thirty (30) days from
the date of the invoice. Payment of all sums due under this Contract may be made by electronic transfer,
cheque, or any other means of payment that Diabolocom may reasonably request.
In the event of failure to comply with the payment deadline provided for in this article and without prejudice
to all its other rights, in particular, the right to suspend or terminate the Contract and/or the Services,
Diabolocom shall be entitled to demand (i) a fixed indemnity of forty (40) euros for collection costs and (ii)
the payment of daily late payment interest. This interest shall be due by operation of law from the due
date of the invoice up to and including the day on which all amounts due have been paid. This late
payment interest shall be calculated at an annual rate equal to three (3) times the legal interest rate, the
latter corresponding to the interest rate applied by the European Central Bank at the time of its last
refinancing operation, plus 10 percentage points. This interest shall continue to accrue on all sums due,
DIABOLOCOM – French Société par Actions Simplifiée with a capital of 150.000 € - Siret 482 652 401 00035 - TVA FR94482652401
20, rue de la Paix 75002 Paris, FRANCE - Tél. +33 (0)1 73 03 45 00 - APE 5829C
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notwithstanding the expiry or termination of this Contract for any reason whatsoever. In addition, failure
to comply with the payment period provided for in this article shall immediately and without notice suspend
any calculation of the Quality of Service Objective, any delay in payment by the Client being an Excusable
Event.
The Client agrees to provide Diabolocom, upon request, with any information describing his current
financial situation. Furthermore, Diabolocom reserves the right to ask the Client for a security deposit or
any other form of payment guarantee (or an increase of the guarantee already issued) in case of a
substantial change in the financial situation or in case of significant and/or additional orders or use of
Services.
3.4 VAT
Any amounts payable by the Client under the Contract are exclusive of amounts in respect of value-added
tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the
Contract by Diabolocom to the Client, the Client shall, on receipt of a valid VAT invoice from Diabolocom,
pay Diabolocom such additional amounts in respect of VAT as are chargeable on the supply of the
Services at the same time as payment is due for the supply of the Services.
The Client accepts that Diabolocom may increase its invoices to reflect any taxes, withholding, or other
deductions which may be applicable in the country in which the Service is provided.
3.5 Regulatory and Legislative Changes
If a change in any applicable law, regulation, decision, rule, or directive significantly increases the costs
or other terms of providing the Service, Diabolocom and the Client will negotiate new conditions for the
provision of the Service in order to reflect such increase of costs. If the Parties do not reach an agreement
regarding the new terms of provision of the Service within thirty (30) days of the receipt of the renegotiation
request made in writing by Diabolocom, then Diabolocom may unilaterally modify the Service, the
Recurring Fees or the Usage Fees, as long as the Client has been informed of this change at least thirty
(30) days before it takes effect. If the Client refuses the change(s) made to a Service or the Fees, it shall
send Diabolocom - before the expiry of the change to the Service or the application of new Recurring
Fees or Usage Fees taking effect - a Termination Notice, declaring the termination of the Service
concerned by the change(s). This termination will then take effect thirty (30) days starting from the sending
of the Termination Notice by the Client (without the application of Early Termination Fees). If the
Termination Notice is not sent by the Client to Diabolocom before the change(s) to the Service or new
Recurring Fees or Usage Fees take effect, the Client will be considered to have irrevocably accepted the
change(s).
3.6 Disputed invoices
Any dispute in relation to the billing for the Service(s) shall be the subject of a Notice sent to Diabolocom
within ninety (90) days following the issue of the invoice for the Service(s) concerned. After this deadline,
the Client irrevocably waives its right to dispute any sum billed by Diabolocom for the Service(s).
3.7 Fraudulent Use of the Services
The Client is responsible for all Fees related to the Service, including the Usage Fees that may result
from fraudulent or unauthorized use of the Service or of an Access Code, except when the fraudulent use
is the result of Diabolocom’s breach.
CLAUSE 4. DURATION, SUSPENSION, AND TERMINATION OF THE SERVICE
4.1 Duration of the Service
The Initial Period shall commence on the Effective Date of Service Provision as described in the Purchase
Order. Upon the expiration of the Initial Period, the duration of the Service will be renewed for successive
periods identical to the Initial period (with each renewal period being a "Renewal Period") unless provided
otherwise in the Purchase Order. Each Party may terminate a Service no less than three (3) months
before the expiration of the Initial Period or of any Renewal Period by sending the other Party a Notice.
If the Client fails to comply with this prior notice delay, the Client will be charged for the Early Termination
DIABOLOCOM – French Société par Actions Simplifiée with a capital of 150.000 € - Siret 482 652 401 00035 - TVA FR94482652401
20, rue de la Paix 75002 Paris, FRANCE - Tél. +33 (0)1 73 03 45 00 - APE 5829C
7/ 15 DIAB.GTS.enFR.20230601
Fees applicable in the event of termination during the Initial or a Renewal Period as defined in article 6.2.
of the Special Terms of Service.
The Parties expressly agree to waive the application of the provisions of paragraph 2 of Article 1214 of
the French Civil Code, so that in the event of a Renewal Period, this may not be considered as a
permanent contract.
4.2 Suspension of the Service
Diabolocom may, immediately and without notice, suspend or block the access to one or all of the Services
(each being a "Suspension of the Service") for one or more of the following reasons: a) complying with
any law, regulation, court decision or other administrative request or injunction requiring immediate action;
b) preventing any interference which may create a loss (including to Diabolocom's other clients) or
damage to Diabolocom Equipment or the Communications Centre; c) preventing the Service from being
used in a manner that would or may incur the liability of Diabolocom, or in violation of any law, regulation,
whether this use is performed by the Client or any other person or entity using the Service, with or without
the Client's consent or authorization, or d) use of the Service beyond the thresholds set out in by Purchase
Order (where applicable), these reasons in a) to d) being referred to as "Improper Use"; ; e) the Client
does not pay one of the amounts owed, within a period of fifteen (15) days following the receipt by the
Client of a Notice to Pay sent by Diabolocom.
Diabolocom shall resume the provision of the Service provided the Client remedies the cause of the
Suspension of the Service and pay Diabolocom the Service restoration Fees (where applicable). If the
Client does not fix the cause of the Suspension of the Service or does not pay the Service restoration
Fees, Diabolocom may terminate the Contract with immediate effect. In this case, Diabolocom will (without
prejudice of its other rights and remedies) ask the Client to pay Early Termination Fees.
4.3 Termination for Breach by one of the Parties
Without affecting any other right or remedy available to it, either Party may terminate this Contract with
immediate effect by giving written Notice to the other Party if:
(a) the other Party commits a material breach of any term of this Contract which is irremediable or
(if such breach is remediable) fails to remedy that breach within a period of 30 days after being
notified in writing to do so;
(b) the other Party repeatedly breaches any of the terms of this Contract in such a manner as to
reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability
to give effect to the terms of this Contract;
(c) the other Party suspends, or threatens to suspend, payment of its debts or is unable to pay its
debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts;
(d) the other Party commences negotiations with all or any class of its creditors with a view to
rescheduling any of its debts or makes a proposal for or enters into any compromise or
arrangement with any of its creditors;
(e) a petition is filed, a notice is given, a resolution is passed, or an order is made for or in connection
with the winding up of that other Party (being a company);
(f) an application is made to court, or an order is made, for the appointment of an administrator, or
if a notice of intention to appoint an administrator is given or if an administrator is appointed,
over the other Party (being a company);
(g) the holder of a qualifying floating charge over the assets of that other Party (being a company)
has become entitled to appoint or has appointed an administrative receiver;
(h) a person becomes entitled to appoint a receiver over all or any of the assets of the other Party,
or a receiver is appointed over all or any of the assets of the other party;
(i) a creditor or encumbrancer of the other Party attaches or takes possession of, or a distress,
execution, sequestration, or other such process is levied or enforced on or sued against, the
whole or any part of the other Party's assets and such attachment or process is not discharged
within 14 days;
(j) any event occurs, or proceeding is taken, with respect to the other Party in any jurisdiction to
which it is subject that has an effect equivalent or similar to any of the events mentioned in
clause 4.3(c) to clause 4.3(i) (inclusive); or
(k) the other Party suspends or ceases, or threatens to suspend or cease, carrying on all or a
substantial part of its business.
DIABOLOCOM – French Société par Actions Simplifiée with a capital of 150.000 € - Siret 482 652 401 00035 - TVA FR94482652401
20, rue de la Paix 75002 Paris, FRANCE - Tél. +33 (0)1 73 03 45 00 - APE 5829C
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Without affecting any other right or remedy available to it, Diabolocom may terminate this Contract with
immediate effect by giving written Notice to the Client:
(a) if the Client fails to pay any amount due under this Contract on the due date for payment and
remains in default not less than 15 days after being notified in writing to make such payment; or
(b) in the circumstances described in clauses 3.1 and 4.2.
4.4 Termination for delayed installation
The Client may terminate this Contract with immediate effect by giving written Notice to Diabolocom if
Diabolocom fails to provide the Services after sixty (60) Business Days of the Effective Date of Service
Provision provided that no Service Availability Notice has been given to the Client by Diabolocom.
4.5 Early Termination of the Service
The Client may ask Diabolocom at any time before the end of the Initial Service Period to terminate the
provision of a Service, provided that 1) It sends Diabolocom a Notice identifying the Service subject to
termination (the "Early Termination") and 2) the Client pays Diabolocom all Early Termination Fees, as
described in the Special Terms of Service, within thirty (30) days of the date the Notice is sent to
Diabolocom.
4.6 Consequences of termination
On termination of the Contract:
(a) The Client shall immediately pay to Diabolocom all of Diabolocom's outstanding unpaid invoices
and interest and, in respect of Services supplied but for which no invoice has been submitted,
Diabolocom shall submit an invoice, which shall be payable by the Client immediately on receipt;
(b) The Client shall return all of Diabolocom Equipment. If the Client fails to do so, then Diabolocom
may enter the Client's premises and take possession of them. Until they have been returned,
the Client shall be solely responsible for their safekeeping and will not use them for any purpose
not connected with this Contract.
(c) (i) All licenses and usage rights will terminate, notwithstanding any provision to the contrary in
the Contract, and (ii) access to the Services will cease without repayment of any monthly Fees
paid in advance.
Termination of the Contract shall not affect any rights, remedies, obligations, and liabilities of
the parties that have accrued up to the date of termination, including the right to claim damages
in respect of any breach of the Contract which existed at or before the date of termination.
Any provision of the Contract that expressly or by implication is intended to have effect after
termination shall continue in full force and effect.
CLAUSE 5. LIMITATION OF LIABILITY
5.1 Diabolocom shall provide technical support and assistance in order to ensure the operation of the
Service. Diabolocom shall not guarantee that its Service will operate without any interruptions. In the
event of a Service outage, Diabolocom will notify the Client of the outage and its cause, and Diabolocom
shall use all reasonable endeavours to remedy it in accordance with the Service Quality Objectives
specified in the Special Terms of Service.
5.2 Neither Party shall under no circumstances whatsoever be liable to the other Party, whether in
contract, tort (including negligence), breach of statutory duty, or otherwise, for (a) any loss of profit or data
; (b) or any indirect or consequential loss arising under or in connection with the Contract.
5.3 A Party’s total liability to the other in respect of direct losses arising under or in connection with the
Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in
no circumstances exceed one hundred percent (100%) of all sums effectively paid by the Client to
Diabolocom for the provision of Services over the past twelve (12) months preceding any direct loss or
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any series of direct losses resulting from the same facts.
5.4 The provisions of this Contract are exhaustive and include all the conditions applicable to the liability
of each of the Parties in respect of the performance of the Contract.
CLAUSE 6. SERVICE QUALITY OBJECTIVE
6.1 Service interruption and Service Provision
The Client may contact the Client Support Centre in order to report any problem related to the quality of
the Service. The Client shall immediately notify Diabolocom of the unavailability of all or part of a Service
and shall fully cooperate to determine the cause of the problem in order to resolve it. To this end, the Client
shall provide any information requested by Diabolocom.
6.2 Credit notes
The Client may, by written request sent to Diabolocom within thirty (30) days following the month in which
one (or more) Service Quality Objective(s) has(have) not been reached, receive from Diabolocom a credit
note equal, depending on the case, to a percentage (as set out in the Special terms) of the Non-Recurring
Fees and/or Recurring Fees payable solely for the provision of the Service concerned by the Service
Outage over a given billing period. In order to receive a credit note, the Client shall contact the Diabolocom
Client Support Centre or send a Notice containing the information needed to identify the Service affected.
No credit note shall be issued for the period during which a Service is made unavailable or is not
established due to one of the following events (hereafter referred to as an "Excusable Event"): (i) the
Client's Data (ii) a modification, reconfiguration, or update to equipment, software, or service provided by
the Client or under its responsibility and not authorized by Diabolocom (iii) the Client's acts or omissions
(including non-compliance with payment deadlines (iv) scheduled and emergency maintenance (v) the
Operator's network (vi) the Client's network traffic or Client data volume exceeding the capacity of the
Service, Communications Centre, or Diabolocom Equipment (vii) the Client’s unavailability, or other
failures of the Client to reasonably participate in efforts to restore the Service undertaken by Diabolocom
(vii) delay in the Client's approval to bring a Service back into operation and/or online, and, where
applicable, to restart it (viii) a Force Majeure Event.
The issuing of credit notes by Diabolocom is subject to the following conditions:
• only one credit note for not achieving Service Quality Objectives may be issued in any
consecutive twenty-four (24) hour period;
• the amount of credit notes for not achieving Service Quality Objectives issued during a calendar
year will be capped at one-twelfth (1/12th) of the Recurring Fees for the year of the Service
Outage.
• the remaining credit notes will not be carried forward to subsequent periods.
If the amount of the credit notes for Service Quality Objectives issued by Diabolocom over two (2)
consecutive months for a specific Service has reached 100% of the Recurring Fees corresponding to this
period and to the said Service, the Client may require the meeting of the representatives of the Parties as
well as the technical managers and/or project managers of the Parties, in order to implement measures
necessary to achieve the Service Quality Objectives.
If two (2) months following this meeting, the Parties do not manage to determine by a joint agreement the
measures to be implemented in order to achieve the Service Quality Objectives, or the measures
implemented do not improve the quality of the Service concerned, each of the Parties may give the other
Party one (1) months’ Notice of termination.
CLAUSE 7. DATA PROCESSING
7.1 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause
7 is in addition to and does not relieve, remove or replace a party's obligations under the Data Protection
Legislation. In this clause 7.1, Applicable Laws means (for so long as and to the extent that they apply to
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Diabolocom) the law of the European Union, the law of any member state of the European Union, and/or
Domestic French Law; and Domestic French Law means the French Data Protection Legislation and any
other law that applies in France.
7.2 The parties acknowledge for the purposes of the Contract Services provision, the Client is the data
controller, and Diabolocom is the data processor (where Data Controller and Data Processor have the
meanings as defined in the Data Protection Legislation). The Data Protection Agreement (DPA) sets out
the scope, nature, and purpose of processing by the Parties, the duration of the processing, and the types
of Personal Data categories of Data Subject and categories of subprocessors.
7.3 Without prejudice to the generality of clause 7.1, the Client will ensure that it has all necessary,
appropriate consents and notices in place to enable the lawful transfer of the Personal Data to Diabolocom
for the duration and purposes of the Contract.
7.4 Without prejudice to the generality of clause 7.1, Diabolocom shall, in relation to any Personal Data
processed in connection with the performance by Diabolocom of its obligations under this Contract:
(a) process that Personal Data only on the written instructions of the Client unless Diabolocom is
required by Applicable Laws to otherwise process that Personal Data. Where Diabolocom is
relying on laws of a member of the European Union or European Union law as the basis for
processing Personal Data, Diabolocom shall promptly notify the Client of this before performing
the processing required by the Applicable Laws unless those Applicable Laws prohibit
Diabolocom from so notifying the Client;
(b) ensure that it has in place appropriate technical and organizational measures to protect against
unauthorized or unlawful processing of Personal Data and against accidental loss or destruction
of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorized
or unlawful processing or accidental loss, destruction or damage and the nature of the data to
be protected, having regard to the state of technological development and the cost of
implementing any measures (those measures may include, where appropriate, pseudonymizing
and encrypting Personal Data, ensuring confidentiality, integrity, availability, and resilience of its
systems and services, ensuring that availability of and access to Personal Data can be restored
in a timely manner after an incident, and regularly assessing and evaluating the effectiveness
of the technical and organizational measures adopted by it);
(c) ensure that all personnel who have access to and/or process Personal Data are obliged to keep
the Personal Data confidential; and
(d) not transfer any Personal Data outside of the European Economic Area unless the prior written
consent of the Client has been obtained and the following conditions are fulfilled:
(i) the Client or Diabolocom has provided appropriate safeguards in relation to the transfer;
(ii) the data subject has enforceable rights and effective legal remedies;
(iii) Diabolocom complies with its obligations under the Data Protection Legislation by providing an
adequate level of protection to any Personal Data that is transferred; and
(iv) Diabolocom complies with reasonable instructions notified to it in advance by the Client with
respect to the processing of the Personal Data;
(e) assist the Client, at the Client's cost, in responding to any request from a Data Subject and in
ensuring compliance with its obligations under the Data Protection Legislation with respect to
security, breach notifications, impact assessments, and consultations with supervisory
authorities or regulators;
(f) notify the Client without undue delay on becoming aware of a Personal Data breach;
(g) at the written direction of the Client, delete or return Personal Data and copies thereof to the
Client on termination of the Contract unless required by Applicable Law to store the Personal
Data; and
7.5 maintain complete and accurate records and information to demonstrate its compliance with this clause
7, including but not limited to the access, control, and security of the Personal Data, approved
subcontractors and affiliates, the processing purposes, categories of processing, any transfers of personal
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data to a third country and related safeguards, and a general description of the technical and
organizational security measures. The Client consents to Diabolocom sharing Personal Data with any
Affiliate for the proper performance of the Service
7.6 The Client consents to Diabolocom appointing a sub-processor as a third-party processor of Personal
Data under this Contract. Diabolocom confirms that it has entered or (as the case may be) will enter with
the third-party processor into a written agreement incorporating terms that are substantially similar to those
set out in this clause 7. As between the Client and Diabolocom, Diabolocom shall remain fully liable for
all acts or omissions of any third-party processor appointed by it pursuant to this clause 7.
7.7 Diabolocom may (within the limits authorized by the Applicable Law) monitor the use of the Service
(and disclose or otherwise use the information thus obtained), but for the sole purpose of a) complying
with any applicable law, regulation, request, or administrative decision, b) ensuring the absence of an
Improper Use of the Service when it has legitimate grounds to believe in the existence of such an Improper
Use, c) protecting the integrity of the IT and electronic communications systems of Diabolocom or a third
party, and d) supplying its Services in accordance with the provisions of the Contract.
7.8 The Client warrants and represents that Diabolocom expected use of the Personal Data for the
duration and purpose of the Contract and, as specifically instructed by the Client, will comply with the Data
Protection Legislation.
CLAUSE 8. GENERAL PROVISIONS
8.1 Force Majeure Event.
None of the Parties may be held liable for any recourse, nor grant any credit note to the other Party, due
to any breach of the performance of this Contract or for any Service Outage, whose cause is beyond the
reasonable control of the Party in question, (Force Majeure Event") such as the following events in
particular: government action, exceptional weather events, labor conflicts other than those between
Diabolocom and its employees, absence or suspension of the electrical supply, lightning or fire, decision
by a national or international administrative authority or of any other competent authority, war, public
disturbance, acts or omissions by a telecommunications operator, or by a third party, or events beyond
the reasonable control of Diabolocom or its suppliers. If the Service is interrupted following a Force
Majeure Event, the Client is not obligated to pay Diabolocom the sums that would be owed for the Service
throughout the duration of the Service Interruption due to a Force Majeure Event.
8.2 Assignment and other dealings.
8.2.1 Subject to clause 8.2.2, the Client shall not assign, transfer, mortgage, charge, subcontract,
delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the
Contract without the prior written consent of Diabolocom (such consent not to be unreasonably delayed
or withheld). Notwithstanding any transfer of the Client's rights and obligations (where consent has been
obtained under this clause), the Client remains responsible for payment of all Fees payable for the
Service.
8.2.2 The Client may resell the Service to a third-party end user. If the Client resells part or all the services
to a third party or the data or information collected as part of the Service to a third party (an "Other User"
and any resale, "Resale"), the Client: (a) shall be responsible in its relations with Diabolocom for the use
of the Service by any Other User; (b) shall be responsible for dealing with any Other User regarding the
Service; (c) shall require that each Other User commits in writing not to carry out any Improper Use of the
Service; (d) shall not have made a declaration, indemnification, or commitment to an Other User in the
name of Diabolocom; (e) shall comply with all legal provisions applicable to the Service for which a feature
is the subject of a Resale and particularly any regulation and/or recommendation from the competent,
independent administrative authorities.
8.3 Affiliate
The Service may be provided to the Client by an Affiliate with Diabolocom authorized to provide the
Service in a country other than that in which this Contract is signed. Diabolocom will remain responsible
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for the performance of the Contract and for the Services to the Client.
8.4 Notices
a) Any Notice given to a Party under or in connection with the Contract shall be in writing and shall be
delivered by hand or by pre-paid first-class post or other next working day delivery service at the Client’s
registered office; or sent by email to the Client to the address specified on the Purchase Order and for
Diabolocom to the following address :
DIABOLOCOM SAS
20, rue de la Paix – 75002 Paris
For the attention of the Head of Administration
Email: notifications@diabolocom.com
b) Any Notice shall be deemed to have been received:
(i) If delivered by hand, on signature of a delivery receipt, or at the time the notice is left at the
proper address; and
(ii) If sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on
the second Business Day after posting [or at the time recorded by the delivery service]; and
(iii) If sent by fax or email at the time of transmission, or if this time falls outside business hours
in France, when business hours resume. In this clause 8, business hours means 9.00 am to
6.00 pm, Monday to Friday, on a day that is not a public holiday in France.
(c) This clause does not apply to the service of any proceedings or other documents in any legal action
or, where applicable, any other method of dispute resolution.
8.5 Content of communications
Diabolocom shall under no circumstances whatsoever be liable for the content of any communications
sent by the Client (or the Other Users in the case of Resale) as part of the Service. The Client shall
indemnify Diabolocom and its Affiliate (including their executives, managers, employees, and
representatives) against all liabilities, costs, expenses, damages, and losses (including but not limited to
any direct, indirect, or consequential losses, loss of profit, loss of reputation and all interest, penalties and
legal costs (calculated on a full indemnity basis) and all other [reasonable] professional costs and
expenses) suffered or incurred by Diabolocom arising out of or in connection with any Third-Party Claim.
8.6 Advertising and promotional material
A Party may use trademarks, service marks, and company names of the other Party in promotional and
advertising material for commercial purposes provided it always has obtained prior consent in writing from
the other Party. Neither of the Parties is authorised to communicate information relating to the contractual
relationship between DIABOLOCOM and the Client in any way, except where required by law or where
the Parties agree to do so in writing and/or in the application of clause 8.8.
8.7 Confidentiality
Each Party undertakes that it shall not at any time during this Contract and for a period of three years
after termination of this Contract, disclose to any person any confidential information concerning the
business, affairs, customers, clients, or suppliers of the other Party or of any member of the group of
companies to which the other party belong except as permitted by clause 8.7 and clause 8.8.
Each party may disclose the other party's information:
(a) To its employees, officers, representatives, subcontractors, or advisers who need to know such
information for the purposes of exercising the party's rights or carrying out its obligations under
or in connection with this Contract. Each party shall ensure that its employees, officers,
representatives, or advisers to whom it discloses the other party's confidential information
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comply with this clause 8.7; and
(b) As may be required by law, a court of competent jurisdiction, or any governmental or regulatory
authority.
(c) No party shall use any other party's confidential information for any purpose other than to
exercise its rights and perform its obligations under or in connection with this Contract to the
subcontractors of one of the Parties, and (vi) to any transferee authorized under this Contract,
as long as said transferee agrees in writing to be bound by the provisions of this clause 8.7.
8.8 Permitted Disclosure of Client Information
Diabolocom reserves the right to communicate to a third party (an existing or potential client) the name
of the Client and a description of the Service subscribed to by it, always provided that Diabolocom has
entered into a confidentiality agreement with this third party. The Client authorizes such communications,
including the disclosure of its name and the Services subscribed to. For the avoidance of doubt, no other
terms (including financial terms) shall be disclosed without the Client's written consent.
8.9 Governing Law and Jurisdiction
(a) The Contract and any dispute or claim (including non-contractual disputes or claims) arising out
of or in connection with it or its subject matter or formation shall be governed by and construed
in accordance with the law of France.
(b) Each party irrevocably agrees that the courts of Paris (France) shall have exclusive jurisdiction
to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in
connection with the Contract or its subject matter or formation.
8.10 Variation
Except as set out in these General Terms of Services, no variation of the Contract shall be effective unless
it is in writing and signed by the parties.
For the avoidance of doubt, any unilateral written changes made on a Purchase Order or piece of Contract
by the Client are invalid.
8.11 Conflict
If there is any conflict or ambiguity between these General Terms of Services and the Special Terms of
Service and/or any Purchase Order, the provisions of a document higher in the list below shall have
priority over the provisions of a document lower in this list
(1) The Purchase Order
(2) The Special Terms of Service
(3) Data Protection Agreement
(4) These General Terms of Services.
8.12 No partnership or agency
Nothing in the Contract is intended or shall operate to create a partnership between the parties or to
authorize either party to act as agent for the other, and neither party shall have authority to act in the
name or on behalf of or otherwise bind the other in any way (including without limitation the making of
any representation or warranty, the assumption of any obligation or liability and the exercise of any right
or power.
8.13 Waiver
A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall
not be deemed a waiver of any subsequent right or remedy. A failure or delay by a party to exercise any
right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other
right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No
single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or
restrict the further exercise of that or any other right or remedy.
8.14 Severance
If any provision or part-provision of this Contract is or becomes invalid, illegal, or unenforceable, it shall
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be deemed deleted, but that shall not affect the validity and enforceability of the rest of this Contract.
If any provision or part-provision of this Contract is deemed deleted under clause 8.14, the parties shall
negotiate in good faith to agree with a replacement provision that, to the greatest extent possible, achieves
the intended commercial result of the original provision.
* * *
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