The purpose of these General Terms and Conditions of services (hereinafter the "GTC") is to define the conditions applicable to any professional (natural or legal person) under private or public law (hereinafter the "Client") which orders, on the Platform, the Services offered by Scalingo, a simplified joint-stock company, registered with the Strasbourg Trade and Companies Register under number 808 665 483, whose registered office is located at 13 rue Jacques Peirotes - 67000 Strasbourg (France), represented by its President, Mr Yann KLIS duly authorized for this purpose, (hereinafter "SCALINGO"). Hereinafter referred to individually as the "Party" or collectively as the "Parties".
Client Account: refers to the account created by the Client;
Confidential Information: refers to all data, documents of any nature provided by one Party to the other for the purposes of the Agreement, verbally, in writing or by any other means and including, but not limited to, all personal, technical, commercial, strategic or financial information, know-how, methods, studies, specifications, software, products and processes, whether this information is protected under intellectual and industrial property rights or not.
Data: refers to any type of information, data and content of the Client, provided by a User in the context of the use of the Services, which may contain Personal Data;
Documentation: refers to the documentation provided by SCALINGO on the Platform, as well as any other written document explaining how the Platform and/or the Services work;
Intellectual Property Rights: refers to any and all tangible and intangible rights associated with works of authorship, including rights on or relating to software, databases, copyrights, trademark rights, patent rights, design rights, and other industrial property rights, and all other intellectual property rights whether arising by operation of law, contract, license, or otherwise.
Order: refers to any act of subscription to the Services on the Platform;
Personal Data: refers to Data which, in accordance with the applicable regulations on the protection of personal data, allows the designation or identification, directly or indirectly, of a natural person;
Platform: refers to the cloud computing platform operated by SCALINGO and accessible at the address https://scalingo.com;
Regulation applicable to the protection of personal data: refers to any regulation applicable to the protection of personal data and in particular Regulation (EU) No. 2016/679 of the European Parliament and of the Council of 27 April 2016 known as the "General Data Protection Regulation" or "GDPR" and Law No. 78-17 of 6 January 1978 as amended known as the "Data Protection Act";
Resources: means the Client's resources hosted on the SCALINGO Platform, including in particular the Client's application, databases, the Client's managed networks, as well as, where applicable, third-party resources approved by SCALINGO;
Services: refers to all the services detailed in the Agreement, in particular in the Order and within the appendices, that SCALINGO undertakes to provide to the Client through the Platform, namely the hosting of the Resources entitled under the terms: "Managed application environments"; "Managed Databases"; "Managed Networks"; "Professional Services"; "Maintenance service in operational condition";
Support: means the support and maintenance services of the Platform and/or Services that SCALINGO undertakes to provide in accordance with the SLA;
Users: refers to the persons authorized by the Client to access the Platform and use the Services.
The GTC are applicable to any Order placed by a Client. The GTC constitute an agreement between SCALINGO and the Client. The Client declares that the Orders are placed in its name and on its behalf or on behalf of the company that employs him/her, for the sole needs of its professional and /or academic activity.
Any Order is subject to the express and unreserved acceptance of the GTC by the Client by ticking the box provided for this purpose. By validating an Order, the Client acknowledges having read the GTC and having fully understood them and undertakes to respect their content.
SCALINGO reserves the right to modify the GTC at any time. SCALINGO will inform the Client by any written means. The Client will have a period of thirty (30) days to issue any remark and /or refusal concerning the update hereof. The silence kept by the Client after this period will be worth acceptance of the new terms of the GTC which will then be immediately applicable to Orders in progress. In case of express refusal of the Client of the new GTC, the GTC that will remain applicable to the Client are those that were in force on the date of the Order.
The GTC are directly accessible on the Platform. They can be downloaded free of charge.
The catalog of the Services, including their Documentation, as well as their pricing are available on the Platform.
To order the Services, the Client must first have created its Client Account on the Platform, by following the procedure provided for this purpose under the "Registration" tab. To create its Client Account, the Client must have and maintain a valid email address. Any creation of a Client Account is subject to the Client's acceptance of the GTU, available on the Platform.
The Client undertakes to provide all the mandatory information requested by SCALINGO according to the Services subscribed; otherwise, the Order cannot be finalized.
Once on its Client Account, the Client selects the Service(s) it wants to subscribe and completes its Order, in particular the billing method of its choice, by following the procedure provided for this purpose on the Platform.
Once the Order has been completed and validated by the Client, it is deemed firm and definitive.
The Service is made available, and the corresponding consumer credits, once SCALINGO has effectively collected the sums due by the Client for the Service subscribed.
The Client may benefit from a free trial of the Platform of 30 (thirty) days. To benefit from a free trial, the Client must have a Client Account. The free trial will start on the date of creation of the Client Account. The free trial gives restricted access to the features of the Platform and is strictly limited to one (1) Resource using a maximum of five (5) containers, one container representing a resource unit of 512 MB. Any additional request must be the subject of a paid Service Order.
At the end of the free trial period, the Client will have the opportunity to subscribe to the Services by placing an Order in accordance with Article 5. If no subscription is made the rights of use will cease immediately and the Client will no longer be able to use the Services. After a period of thirty (30) days, if no Order is made by the Client, the Resources will be deleted from the Platform.
Price. The price of the Services corresponds to a number of credits of space reserved for Resources, calculated according to the quantity and/or volume of Resources that the Client wishes to host on the Platform, as well as the duration of the Service subscribed.
The Services are invoiced on a per-consumer basis according to the rates and terms agreed between the Parties in the Order (the "Budget Line"). Prices are indicated in euros excluding tax. SCALINGO reserves the right to pass on, without delay, any tax or any increase in the rate of existing taxes. If required by applicable law, the Client will provide SCALINGO with its tax identification information.
Consumption - Overruns - Not consumed credits. The Client can manage its Budget Line directly from the dashboard available on its Client Account. The Client is thus continuously informed of its consumption. A consumption statement is made monthly and serves as the basis for billing the corresponding Service.
The Client is alerted to any overrun of the Budget Line. Depending on the payment method(s) chosen by the Client, the excess will be debited automatically or paid upon written notification of the invoice by SCALINGO. If necessary, the Client is invited to subscribe to a new Budget Line to benefit from additional space credits.
The Client expressly acknowledges that the Budget Line is fixed throughout the subscription period for the Service in question. If, at the end of the subscription period, the Client has not consumed all the credits, they will be deemed lost. The Client may not claim any compensation in this respect.
Terms of payment. Payment can be made by one or more of the following means:
(i) Payment on the effective consumption by credit card debit. The Services are invoiced on arrears. When placing an Order, the Client will enter the information relating to its payment card on the secure interface of the payment provider chosen by SCALINGO. It is specified that the bank data entered for the payment of the Services, do not transit on SCALINGO's servers. The amount consumed over the past month will be debited automatically at the beginning of the following month.
(ii) Payment on the effective consumption by SEPA debit. This means of payment is open on the condition that the Client has a consumption of credits of a minimum of 100 € HT per month over three (3) consecutive months. The Client may make its request for SEPA debit by contacting SCALINGO at the address firstname.lastname@example.org. The Client will then be invited to sign a SEPA mandate and by communicating to its bank the direct debit authorization that will be sent by SCALINGO. The amount consumed over the past month will be debited automatically at the beginning of the following month.
(iii) Prepayment by PayPal. The Client may charge its Client Account with the amount of the Services with credits PayPal. The amount consumed over the past month will be debited automatically from the Client Account at the end of the month. In the absence of sufficient PayPal credits, the Client will be invited to recharge its Client Account with as many credits PayPal as necessary or, failing that, choose another means of payment (credit card or SEPA debit). Unless otherwise indicated when placing the Order, the Client is informed that the prepaid credits are valid for twelve (12) months from their purchase. If, at the end of the subscription period, the Client has not consumed all the credits, they will be deemed lost. The Client may not claim any compensation in this respect.
(iv) Payment by invoice, by bank transfer. The Parties may agree on a payment on presentation of an invoice, issued on a monthly or quarterly basis, payable within sixty (60) days from the date of issue of the invoice. The Client can send its request to the contact address email@example.com.
Late payment. In accordance with the provisions of Article L. 441-10 of the French Commercial Code, any delay in payment will incur, without notice and ipso jure, a lump sum recovery indemnity as determined by decree and penalties calculated on the basis of the statutory interest rate applied by the European Central Bank increased by 10 percentage points, without any reminder being necessary.
Notwithstanding the late payment interest calculated according to the above-mentioned conditions, SCALINGO reserves the right, after a payment reminder sent by email to the Client remained without effect more than ten (10) calendar days following the date of notification of the reminder, to suspend access to all or part of the Services, without this giving rise to the right to compensation or recourse for the benefit of the Client. The Client will only regain access to the Services upon payment of all sums due, in principal and interest.
In the event of outstanding payments, SCALINGO will have the right to terminate the Agreement, after notifying the Client by any means it deems appropriate, at the exclusive fault of the Client or to exercise any other legal remedy aimed at obtaining compensation for the damage it has suffered.
Evolution of prices. In the event of an increase in its price list, SCALINGO undertakes to inform the Client in advance so that the latter may, if necessary, unsubscribe or request the termination of the Services and/or the Agreement before undergoing the said price increase.
For Orders for Services without commitment of duration, SCALINGO will send, at the latest three (3) months before the date of application of the increase in the price of the Services, an email informing of said increase, its date of application and the possibility of unsubscribing.
For Service Orders with a duration commitment, the price of the Services may be increased only at the end of the commitment period. SCALINGO will inform the Client of the price increase no later than three (3) months before the end of the Order so that the latter may, if necessary, request the termination of the Order and/or the Agreement before undergoing said price increase.
Following this information and in case of continuation of the Services by the Client, the price of the Services will be increased to correspond to the new price in force and the amount of bank withdrawals will be adjusted in proportion to the changes in the price.
In addition to what is also stipulated in the GTC, the Client undertakes to:
The Client acknowledges that it is strictly forbidden to use the Services and/or the Platform for the following purposes, this list being not exhaustive: (i) engaging in illegal, fraudulent activities or infringing the rights or security of third parties, (ii) downloading or installing on the Platform malware, spyware, viruses, worms, Trojan horses or similar harmful code; (iii) access, extraction of Data from other users of the Services and/or the Platform; (iv) acts aimed at interrupting, suspending, slowing down or preventing the continuity of the Services and/or the Platform; (v) intrusion or attempted intrusion into the systems of SCALINGO and/or users of the Services and the Platform; (vi) breach of security and authentication measures; (vii) creation of multiple accounts in order to circumvent the limits of the free trial; (viii) any act likely to infringe the rights and interests of SCALINGO or the Users of its Services and/or Platform.
Any violation of this article and, more generally, of the GTC may result in the suspension of the Services and/or the termination of the Agreement, without prejudice to the compensation that may be claimed by SCALINGO.
Ownership of the Platform and the Services. The Client acknowledges and accepts that all the rights, titles and interests related to the Platform, the Services, the names, and logos of SCALINGO, including the associated Intellectual Property Rights, are and remain the exclusive property of SCALINGO., or third parties who have authorised SCALINGO to exploit them. The Agreement does not confer on the Client any right or interest on the Platform, the Services, names and/or logos of SCALINGO, but only a limited right to access and use the the Platform and the Services under the conditions set out below.
It is also specified that SCALINGO is and remains the exclusive owner of all the elements of the Platform, protected by intellectual property rights, such as information, texts, images, graphic elements, copyrights, trademarks, photographs, videos, sounds, logos, as well as any computer applications disseminated on the Platform. These elements may under no circumstances be used, reproduced, imitated or adapted without the prior written permission of SCALINGO.
License on the Platform and the Services. Unless otherwise stipulated, subject to the Client paying the full fee, SCALINGO grants to the Client, for the duration of the use of the Services, a worldwide, non-exclusive, non-assignable, non-transferable license to access and use the Platform and the Services, for its sole professional purposes and solely to operate on its own software, or on licensed software, the activities of testing, development and maintenance (hereinafter the "License").
The Client will refrain from using the Solution other than within the limits authorised under the Agreement
In addition, the Client undertakes not to perform the following acts, nor allow or authorise a third party to perform one or more of the following actions: (i) decompile or disassemble the Platform and the Services, by performing reverse engineering or attempting any other method to obtain all or part of the source codes; (ii) copy the source codes and create derivative works from the source codes; (iii) rent, grant a sub-license, sell, or transfer the Solution to a third party or allow a third party to access and use the Platform and/or the Services.
Ownership of Data and Resources. The Data and Resources, including the associated Intellectual Property Rights, are and will remain the exclusive property of the Client or third parties who have authorized the Client to exploit them.
The Client represents and warrants that it has the full ownership or has obtained all intellectual property rights in the Resources allowing it to upload them to the Platform and exploit them.
When uploading Resources on the Platform, the Client grants SCALINGO, for the entire period of hosting the Resources on the Platform, the non-exclusive rights to reproduce, represent, download, access the Resources and, in particular, the source codes of the hosted software solutions, for the purposes strictly necessary for their hosting on the Platform and the provision of the Services, including Support.
The Client guarantees that, to the best of its knowledge, the Resources and/or Data do not infringe the Intellectual Property Rights of a third party. In the event of an action, claim or claim brought by a third party in infringement of its rights due to a Resource and/or Data, the Client will assist SCALINGO, and will indemnify it for all costs and damages arising from such action.
SCALINGO will provide support to the Client, by electronic means, regarding the use of the Platform. SCALINGO will make its best efforts to try to respond to the Client's request as soon as possible, without the final resolution of the latter being guaranteed.
In the event that the Support involves access to the Resources, and in particular to the source codes of the Client's software solutions hosted on the Platform and/or to the databases, SCALINGO will seek the express prior agreement of the Client before accessing the Resource concerned by the Support, it being understood that in the event of an emergency, in particular suspicion of illegal activities on a Resource, the Client already authorizes SCALINGO to access this Resource and, for software solutions to their source codes, for the strict needs of the fulfillment of its contractual obligations. SCALINGO will inform the Client as soon as possible of this intervention.
It is expressly agreed between the Parties that under no circumstances should SCALINGO be held liable for any intervention involving access to a Resource and, in particular, to the source codes of the solutions hosted on the Platform, SCALINGO having no knowledge nor control of the Client's Resources (and in particular the source codes of the Client's software solutions).
Services subscribed with commitment of duration. The GTC are applicable throughout the duration of subscription to the Services. The Services are subscribed for the initial period set out in the Order and will be renewed by tacit renewal for successive periods of the same duration as the initial duration, unless the Client unsubscribes the Services through its Client Account or one of the Parties terminate the Agreement by registered letter with acknowledgement of receipt sent to the other Party, observing a notice period of one (1) month prior to the start of new contractual term.
Services subscribed without commitment of duration. The Client may unsubscribe at any time through its Client Account. The Client may choose to delete its Client Account with immediate effect, as a result of which, he will be charged for the resources consumed for the current month. The Client is informed that the deletion of its Client Account entails the deletion of all the resources still allocated on the Platform.
Termination for fault. In the event of a breach by one of the Parties of one of the obligations, the other Party may, thirty (30) full days from the date of receipt, or failing that, the date of the first attempted delivery of a letter, sent by registered post with proof of delivery, giving formal notice and which went unheeded, declare the automatic termination of the Agreement, without further notice or legal formality, and without affecting any other rights or measures, including seeking any damages to which it might be entitled.
Termination for violation of the GTU. In the event of the Client's breach of the GTU, SCALINGO may automatically terminate, without prior notice nor compensation, all or part of the Client's access to the Platform and/or the Services. SCALINGO may pronounce this termination without prejudice to all other rights, actions and remedies it may have for compensation for the damage it may have suffered as a result of these breaches.
Termination for inactivity. In order to reduce security risks due to unmaintained software, SCALINGO reserves the right to terminate all or part of the Agreement when the Client's Applications show no active use (i.e., no dynamic request) for more than 90 (ninety) consecutive days, do not generate any service fees or use only free resources. In this case, the Client will be informed by e-mail with a notice of 30 (thirty) days before termination.
Reversibility consists in allowing the Client to retrieve all its Data hosted on the Platform. To do so, SCALINGO makes available to the Client, or its designated third party, open APIs, and the associated documentation, which allow the Client to recover and transfer its Data.
The Client may, autonomously, or via contact with support staff, request the deletion of its Client Account at any time, in application of the GTC. The Customer is informed that all rights of use granted on the said Services will cease immediately, including access to the Data. The Client is therefore responsible for exporting the Data via the tools made available by SCALINGO directly from its Account, before any deletion of its Account.
At the end of the Agreement, SCALINGO undertakes to delete the Data and destroy any copies and backups it may have on its servers at the end of the retention period for backups provided for the Services subscribed to by the Client. SCALINGO will issue a certificate of destruction of the Data at the request of the Client.
The Parties guarantee that they have all the rights, powers, authorizations and licenses necessary to conclude the Agreement.
SCALINGO guarantees, on the day of their availability, the proper functioning and compliance of the Platform and/or the Services with the Documentation.
SCALINGO makes no other express or implied warranties, including, as to the continuity, performance and/or durability of the Platform and/or Services, and/or as to the adaptation and/or conformity of the Platform and/or Services to a particular use or purpose or to the needs of the Client, other than those provided for in the Agreement.
The Client acknowledges that the use of the Platform and/or Services involves the knowledge and acceptance of the characteristics and limitations of internet networks, including technical performance, response times to transfer information, the risks of interruption, and more generally, the risks inherent in any connection and transmission of data. SCALINGO does not guarantee that the features of the Platform and/or Services or other components will be available at any time, uninterrupted or error-free, that any defects or errors will be immediately corrected, or that the Platform and/or Services will be free of viruses or any other component that could cause damage at any time.
As part of the provision of the Platform and the Services, SCALINGO may have access to (i) the Personal Data of the Client' staff, for the purposes of contracting the Agreement, (ii) Users, for access and management of the Platform and Services, or even (iii) Personal Data that may be contained in the Resources.
SCALINGO undertakes to process Personal Data in accordance with the terms of the DPA concluded with the Client.
SCALINGO considers the sensitivity of the Data processed and the potential risks to determine the appropriate security measures to be taken and to limit the probability of the risks to an acceptable level. These technical and organizational measures are detailed in the Information Systems Security Policy ("ISSP") developed by SCALINGO and regularly tested, analyzed, and evaluated by SCALINGO, as part of the certified information security management system (ISMS) set up by the latter, to ensure their effectiveness.
Upon express request of the Client addressed to SCALINGO's IT department, the latter will communicate the ISSP.
SCALINGO undertakes to implement, with respect to the requirements set out by the ISSP, all the necessary measures to ensure:
Any major changes to these measures must be documented and notified to the Client. Such modification shall in no way result in a decrease in the level of security of the Services during the term of the Agreement.
SCALINGO will regularly check, at least once a year, the conformity and adequacy of its technical and organizational security measures and must be able to demonstrate their effective implementation and effectiveness, as well as its compliance with the requirements set out by the ISSP and the certifications it has obtained, by testing regularly and auditing its information system.
SCALINGO will take all necessary precautions to prevent the introduction by SCALINGO or its Subcontractors of any malicious program into the Client's information system and will take appropriate measures if it detects the existence of such malware. In the event of the introduction of a malicious program, the Parties undertake to work together to determine its origin and eradicate its consequences. If it turns out that the introduction of a malicious program is solely attributable to the Client, the latter will bear the costs of diagnosis and restoration. If it turns out that the introduction of malware is solely attributable to intentional misconduct or negligence on the part of SCALINGO, SCALINGO will bear the costs of diagnosing and restoring the information system and Data if the Data is damaged.
Each Party undertakes to (i) protect and treat in the strictest confidentiality the Confidential Information provided to it by the other Party and/or to which it would have had access in the course of the performance of the Agreement; (ii) not to disclose to any third party, without the prior written consent of the other Party, the nature or content of the Confidential Information of the other Party, directly or indirectly; (iii) use the Confidential Information only for the purpose of performing the Agreement; (iv) not to copy the Confidential Information for purposes other than those of the performance of the Agreement.
The obligation of confidentiality does not apply to information: (i) that was known to one of the Parties, without obligation of secrecy, before its transmission by the other Party; (ii) that are obtained from third parties by one of the Parties, in a legitimate manner; (iii) that are or become publicly available, without a violation of the commitments undertaken by each Party; (iv) that are reasonably disclosed to employees, suppliers, contractors or others, for the performance of the Services; (v) which must be disclosed by law or a competent authority.
The Parties will have third parties and members of their staff who may intervene under the Contract sign a confidentiality agreement guaranteeing the same level of confidentiality. The confidentiality commitment remains in effect as long as the information concerned has not become public.
The use of the Services and/or the Platform is under the sole and entire responsibility of the Client. The Client will be solely responsible for the Resources and Data uploaded and hosted on the Platform and/or Services.
SCALINGO is subject to an obligation of means in the provision of the Platform and the Services. The Client expressly acknowledges that it has received all the necessary information from SCALINGO, allowing it to assess the suitability of the Platform and the Services to its needs.
SCALINGO may only be held liable by the Client for direct damages if it has committed a proven contractual breach during the performance of the services assigned to it under this Agreement.
SCALINGO shall not be held liable for any indirect damage of any kind suffered by the Client, including, without limitation, loss of profit, loss of Client, commercial disturbance, image damage, in relation or from the use of the Platform and/or the Services.
If SCALINGO is held to be liable before the courts, by a final decision of a competent court, the compensation sought by the Client would be expressly limited, in all cases, to the damage suffered by the Client, without being able to exceed the amount of sums collected by SCALINGO, under the Agreement, over the last twelve (12) months. It is specified that in the event of loss or deterioration of the Data, and if this loss or deterioration is exclusively attributable to SCALINGO, SCALINGO's liability will be limited to the reinstallation of the last backup made.
SCALINGO cannot be held liable for the information and Personal Data provided by the Client himself. As such, the Client is solely responsible vis-à-vis third parties, for the nature and content of the information and Personal Data that he provides via the Platform in the context of the use of the Services.
Neither Party shall be held liable with respect to the other for a breach or delay in performing an obligation under this GTC which is due to the other Party, following the occurrence of a force majeure event within the meaning of the Civil Code and jurisprudence.
If a force majeure event occurs, the affected Party shall immediately inform the other Party and the Parties shall take all reasonable measures to limit the consequences of such an event. The obligations of this GTC shall be suspended. If the force majeure event continues for more than THIRTY (30) days, these terms of service may be terminated by either Party as soon as the other Party receives notice by registered letter with acknowledgment of receipt without any other formality.
The Client shall not assign the Agreement to a third party in whatever capacity, for whatever cause and in any form or any of its rights and/or obligations of the Agreement, without obtaining prior express consent of SCALINGO.
SCALINGO may, subject to having informed the Client, transfer this Agreement to any affiliate within the meaning of the provisions of Article L.233-3 of the Code of Commerce, as well as to any third-party that is for example engaged in a capital transaction, change of control, merger, absorption, assignment, or transfer.
Communication. Except in cases where a stipulation of the GTC provides otherwise, exchanges between the Parties may take place by any means, in particular by e-mail.
Assurances. The Parties declare and under to maintain that they have taken out an insurance policy with a reputably solvent insurance company, covering their professional civil liability.
Waiver. It is expressly agreed that any tolerance or waiver by one of the Parties in implementing all or part of the obligations under this contract, whatever the frequency and duration, shall not amount to an amendment of this GTC, nor generate any right.
Intégrality. These provisions constitute the entire GTC between the Parties and in every respect replace the prior agreements, letters of intent, letters and proposals between the Parties, regardless of their form or title, and relating to the same purpose, with the exception of those listed in this agreement.
Severability. If any one of the provisions in this Agreement is partially or fully cancelled, the validity of the other provisions shall not be affected. In this case, the Parties must, if possible, replace this cancelled provision with a valid provision that is in line with the spirit and purpose of the GTC.
Commercial reference. Each Party may refer to the name of the other Party and use its distinctive signs as a commercial reference in its technical and commercial documents.
Subcontractors. SCALINGO may use one or more subcontractors to perform its obligations. However, with respect to the Client, SCALINGO shall remain liable for the proper performance of the services entrusted to such subcontractors.
Modification. The Agreement may be modified only by a written document duly signed by both parties and referencing this Agreement.
Address for services. The Parties choose their registered office as their address for service.
The Contract is subject to French law.
This Contract has been drawn up in several languages. The authentic version for the purposes of the interpretation of this Contract will be the French version. Any other version is provided as a translation.
In the absence of an amicable resolution, any dispute relating to the Agreement will be brought to the attention of the competent courts located in the territorial jurisdiction of SCALINGO's registered office, including in the event of summary proceedings, petitions or multiple defendants.