General Terms of Sale

Preamble

The company OPTIMUS NETWORK, a simplified joint-stock company (société par actions simplifiée) with share capital, registered with the Trade and Companies Register (Registre du Commerce et des Sociétés) of Bazas under number 101 785 269, whose registered office is located at 1 Cours du Maréchal Joffre, 33430 Bazas, represented by its President, Mr Fabien MICHEL (hereinafter the "Publisher"), publishes and markets the software solution ScaleUp, a SaaS platform dedicated to distributors and wholesalers in the Print & IT sectors (hereinafter the "Solution").

These General Terms of Sale (hereinafter the "GTS") apply to all services provided by the Publisher to any legal entity acting for professional purposes (hereinafter the "Client"). The Client acknowledges having reviewed these GTS prior to signing any order and accepts their terms without reservation.

1. Definitions

In these GTS, the terms below have the following meaning:

• "Solution": all ScaleUp software features accessible in SaaS mode, including its interfaces, API, documentation and updates.
• "Pack": the functional scope marketed by the Publisher (Starter, Business, Premium or any other future pack), as described on the Site and in the Order Form.
• "Order Form": the contractual document signed by the Parties specifying the scope, the Fees, the term and the options selected.
• "Site": the website accessible at the address scale-up.app.
• "Client Data": all data, content, information and files provided, imported, entered or generated by the Client or its Users within the Solution.
• "User": any natural person authorised by the Client to use the Solution.
• "Party/Parties": the Publisher and/or the Client, as the context requires.
• "Contract": the whole formed by these GTS, the Order Form, the SLA annex and the DPA, as applicable.

2. Purpose

The purpose of these GTS is to define the conditions and terms under which the Publisher grants the Client a right to access and use the Solution, together with the associated services (integration, training, support).

3. Contractual documents - Order of precedence

The Contract is made up, in decreasing order of priority in the event of conflict, of the following documents:

1. the Order Form signed by the Parties;
2. the SLA annex;
3. the data processing agreement (DPA);
4. these GTS;
5. the technical documentation of the Solution.

No document issued by the Client (purchase order, general terms of purchase, etc.) may prevail over these GTS, save with the express written agreement of the Publisher.

4. Subscription - Entry into force

Subscription is made by signing an Order Form issued by the Publisher, either in paper form or electronically (electronic signature deemed reliable within the meaning of article 1367 of the French Civil Code (Code civil)). The Contract enters into force on the date the Order Form is signed by both Parties (the "Effective Date").

5. Description of the services

The Publisher provides the Client with access to the Solution in SaaS mode, hosted and operated by the Publisher or its subcontractors. The functional scope corresponds to the subscribed Pack.

The Publisher reserves the right to make the Solution evolve. Any change that:

• improves or maintains existing features gives rise to no compensation;
• substantially reduces features will be notified to the Client with reasonable notice and will give rise, where applicable, to a right of termination without penalty.

The following are expressly excluded from the scope of the Solution, unless otherwise stated in the Order Form:

• specific developments;
• the supply of hardware;
• internet connections and the provision of workstations;
• third-party services (integrators, consultants, external training).

6. Fees - Financial terms

The fees in force on the Effective Date are those indicated in the Order Form. For information, the standard Packs are marketed at the following prices:

• Starter Pack: 290 € excl. VAT / month
• Business Pack: 590 € excl. VAT / month
• Premium Pack: 990 € excl. VAT / month

The Fees are exclusive of tax. The VAT in force is applied (intra-Community VAT number FR13101785269).

The Fees are revised annually, on each anniversary date of the Contract, according to the following indexation formula: application of the latest published annual variation of the SYNTEC index, with a floor of 0% and a cap of 5%. The Publisher further reserves the right to modify its fees, subject to sixty (60) days' written notice, giving the Client a right of termination without penalty should it refuse the new schedule.

7. Payment terms

Unless otherwise stipulated in the Order Form, billing is monthly or annual, payable in advance. Invoices are payable within thirty (30) days of the invoice date, by SEPA direct debit or bank transfer.

Any late payment automatically gives rise, without any formal notice being required, to:

• the application of late-payment penalties at a rate of three (3) times the legal interest rate in force;
• a fixed indemnity for collection costs of forty (40) euros (art. L.441-10 of the French Commercial Code (Code de commerce)), increased by reimbursement, on supporting documents, of the actual collection costs incurred beyond that amount;
• the immediate suspension of access to the Solution, after a formal notice that has remained without effect for eight (8) days;
• the immediate payability of all sums remaining due under the Contract.

The Client may not, save with the prior written agreement of the Publisher, carry out any set-off between the sums due to the Publisher and any claims it may hold against the latter.

8. Term - Renewal

Unless otherwise stipulated in the Order Form, the Contract is concluded for an initial term of one (1) month, tacitly renewable for successive periods of the same duration. Where the Order Form provides for an annual commitment, the Contract is concluded for an initial term of twelve (12) months, tacitly renewable for successive periods of twelve (12) months, save termination by either Party in writing with three (3) months' notice before the expiry date.

9. Termination

9.1 Termination for convenience. In the absence of a fixed-term commitment, each Party may terminate the Contract at any time, without cause, subject to thirty (30) days' written notice. In the case of an annual commitment, termination for convenience may only take place under the conditions set out in article 8.

9.2 Termination for breach. In the event of a serious breach by either Party of its contractual obligations, and after a formal notice by registered letter with acknowledgement of receipt that has remained without effect for thirty (30) days, the other Party may terminate the Contract as of right, without prejudice to any damages.

9.3 Immediate termination. The Contract may be terminated without notice and as of right in the event of: (i) insolvency proceedings affecting one of the Parties, subject to mandatory public-policy provisions; (ii) a serious and irremediable breach of confidentiality or intellectual property obligations; (iii) fraudulent or unlawful use of the Solution by the Client.

9.4 Effects of termination. Termination entails the immediate cessation of the right to access the Solution. The Client remains liable for all sums remaining due as at the effective date of termination. Commitments entered into before termination which are intended to survive (confidentiality, intellectual property, liability, personal data) survive the end of the Contract.

10. Service levels (SLA)

The Publisher undertakes to provide Solution availability of ninety-nine point nine per cent (99.9%) on a monthly average, calculated 24/7 over the scope of productive features, excluding:

• scheduled maintenance announced with at least forty-eight (48) hours' notice;
• emergency corrective maintenance;
• force majeure events (article 17);
• unavailability attributable to the Client, a User or a third party (internet provider, DNS, subcontractor designated by the Client);
• incidents related to non-standard configurations or integrations.

In the event of a failure to comply with the SLA observed over a calendar month and notified by the Client within thirty (30) days, the Publisher grants a credit, capped at fifteen per cent (15%) of the monthly amount excl. VAT of the Pack, to be applied to the following invoice. This credit constitutes the Client's sole and exclusive remedy in respect of the failure to comply with the SLA, to the exclusion of any other compensation.

11. Support

The Publisher provides the Client with support accessible on business days and hours, by e-mail at support@scale-up.app, as well as an online knowledge base. Specific support levels (response time, channel, priority) are specified in the Order Form or the SLA annex according to the subscribed Pack.

12. Client's obligations

The Client undertakes to:

• provide accurate, complete and up-to-date information at subscription and throughout the Contract;
• use the Solution in accordance with its intended purpose, these GTS, the Order Form and the documentation;
• keep confidential the login credentials assigned to Users and report any compromise without delay;
• ensure that Users comply with the Client's obligations under the Contract;
• obtain and maintain all authorisations, licences and consents necessary regarding the Client Data;
• not impair the security, integrity or performance of the Solution;
• not carry out reverse engineering or decompilation, nor massive scraping or systematic extraction of the data accessible via the Solution, save within the limits provided for by article L.122-6-1 of the French Intellectual Property Code (Code de la propriété intellectuelle);
• cooperate in good faith with the Publisher in the performance of the Contract, in particular during the integration and migration phases.

13. Publisher's obligations

The Publisher undertakes to:

• provide the Solution in accordance with the Order Form, the documentation and the SLA;
• implement appropriate technical and organisational measures to ensure the security and availability of the Solution;
• inform the Client in the event of a major change to the Solution;
• comply with its obligations regarding the protection of personal data.

The Publisher's commitments constitute a best-efforts obligation, save for an express and explicit obligation of result.

14. Intellectual property

The Solution, its components, its documentation, its interfaces and its source code are and remain the exclusive property of OPTIMUS NETWORK or its licensors. These GTS entail no assignment of intellectual property rights for the benefit of the Client.

The Publisher grants the Client a personal, non-exclusive, non-transferable and non-sublicensable right to use the Solution for its internal needs, for the term of the Contract and within the limit of the scope of the subscribed Pack.

The ScaleUp trademark and the associated logo are the exclusive property of OPTIMUS NETWORK. The Client may not use them without prior written authorisation, except for a factual mention of the use of the Solution.

Suggestions, feedback, ideas or improvement proposals made by the Client (hereinafter the "Feedback") may be freely exploited by the Publisher, without consideration or additional authorisation, subject to not disclosing any confidential information of the Client.

15. Client Data - Personal data

The Client Data remains the exclusive property of the Client. The Publisher holds over it only the rights strictly necessary for the performance of the Contract.

In connection with the performance of the Contract, the Publisher acts as a processor within the meaning of article 28 of Regulation (EU) 2016/679 ("GDPR"), on behalf of the Client acting as data controller. The precise terms of the processing (nature, purposes, categories of data, duration, sub-processors, transfers) are defined in a data processing agreement ("DPA") annexed to the Order Form.

The Publisher undertakes in particular to: (i) process the Client Data only on documented instructions from the Client; (ii) ensure the confidentiality of the persons authorised to access the data; (iii) implement appropriate technical and organisational security measures; (iv) assist the Client in exercising the rights of data subjects and managing data breaches; (v) delete or return the data at the end of the Contract under the conditions provided for in article 18.

The Publisher hosts the Client Data within the European Union. Any transfer to a third country will be subject to appropriate safeguards within the meaning of articles 44 et seq. of the GDPR.

16. Confidentiality

Each Party undertakes to keep strictly confidential all information, of whatever nature, exchanged in connection with the performance of the Contract and identified as such or which is manifestly confidential in character (hereinafter the "Confidential Information").

This confidentiality undertaking remains in force throughout the term of the Contract and for a period of five (5) years from its expiry or termination.

Excluded from the scope of confidentiality is information which: (i) is or becomes public without breach of this article; (ii) was already known to the receiving Party without any confidentiality obligation; (iii) is legitimately received from a third party not bound by confidentiality; (iv) must be disclosed pursuant to a mandatory legal or regulatory obligation.

17. Force majeure

Neither Party may be held liable for a failure to perform its obligations resulting from a force majeure event as defined by article 1218 of the French Civil Code (Code civil) and the case law of the French courts, in particular: natural disasters, armed conflicts, acts of terrorism, epidemic or pandemic, general strike, general electricity or telecommunications outage, large-scale cyberattack affecting the entire sector.

The prevented Party informs the other Party as soon as possible. If the force majeure event continues beyond thirty (30) days, each Party may terminate the Contract as of right, without indemnity.

18. Reversibility - Return of Data

Upon expiry or termination of the Contract, the Publisher makes available to the Client, for a period of thirty (30) days, an export of all the Client Data in one or more open and structured formats (CSV, JSON or equivalent). Additional reversibility-assistance services may be ordered on a time-spent basis according to the Publisher's fees in force.

After the thirty (30) day period, the Publisher deletes the Client Data from its production environments within a maximum of ninety (90) days, subject to legal retention obligations (in particular tax, accounting and anti-fraud). Encrypted backups are purged according to standard rotation cycles, within a maximum of twelve (12) months.

19. Warranties

The Publisher warrants that it holds all the rights, authorisations and titles necessary to market the Solution and to perform the Contract.

The Publisher indemnifies the Client against any third-party claim based on an infringement of the intellectual property rights attached to the Solution, provided that: (i) the Client informs the Publisher as soon as possible; (ii) the Client leaves the Publisher in control of the defence and cooperates loyally; (iii) the Solution was used in accordance with the Contract and the documentation. If an infringement is established by a decision having the force of res judicata, the Publisher may, at its option: (a) obtain a right to continue use; (b) modify the Solution to make it non-infringing; (c) terminate the Contract and refund the Client for the unused portion of the prepaid sums. Excluded are any infringements resulting from non-compliant use, modification or combination not authorised by the Publisher.

The Client warrants to the Publisher ownership of, or authorisation to use, all the Client Data, and indemnifies the Publisher against any third-party action (including by the CNIL or data subjects) that would result from a breach of this warranty.

20. Liability

Each Party is liable for breaches of its contractual obligations under ordinary law. The Publisher's liability may only be engaged in the event of proven fault.

In any event, and subject to cases where the law prohibits such a limitation (wilful misconduct, gross negligence, bodily injury), the Publisher's total and cumulative liability, on any grounds whatsoever, under or in connection with the Contract, is strictly capped at the total amount excluding tax actually paid by the Client to the Publisher in respect of the twelve (12) months preceding the event giving rise to the damage.

The Publisher is in no event liable for indirect or intangible damages, such as, without limitation: loss of operations, loss of turnover, loss of clientele, loss of data, harm to image or reputation, loss of opportunity, loss of profit.

Any litigation action based on these GTS must be brought, on pain of being time-barred, within one (1) year from the time the claiming Party became aware of the triggering event.

21. Insurance

The Publisher declares that it has taken out, with a notoriously solvent company, an insurance policy covering its professional civil liability. A certificate may be provided to the Client on request.

22. Subcontracting

The Publisher may use subcontractors for the performance of the Contract, in particular for the hosting and operation of the Solution. It remains responsible for their services vis-à-vis the Client. The list of subcontractors processing personal data is kept up to date in the DPA.

23. Non-solicitation of staff

Throughout the term of the Contract and for the twelve (12) months following its expiry, each Party refrains from soliciting or recruiting, directly or indirectly, any employee of the other Party who took part in the performance of the Contract, save with prior written agreement. In the event of a breach, the defaulting Party shall pay the other, as a penalty clause, an indemnity equal to twelve (12) months of the gross remuneration of the employee concerned.

24. Audit

The Publisher undertakes to maintain up-to-date documentation enabling it to demonstrate compliance with its obligations regarding security and data protection. The Client may, once a year, at its own expense and subject to thirty (30) days' notice, request the communication of certifications, third-party audits (SOC 2, ISO 27001 or equivalent) and relevant policies. Any additional on-site audit is subject to a specific agreement between the Parties.

25. Notices

Any notice under the Contract is validly given by registered letter with acknowledgement of receipt addressed to the registered office of the recipient Party, or by e-mail to the addresses designated in the Order Form, with electronic acknowledgement of receipt. The postmark or the date of sending of the e-mail is authoritative.

26. Assignment - Transfer

The Client may not assign or transfer all or part of its rights and obligations under the Contract without the prior written agreement of the Publisher, which may not be refused without legitimate cause. The Publisher may freely assign or transfer the Contract to any company within its group or in connection with a restructuring, merger, acquisition or transfer of assets, subject to informing the Client.

27. Independence of the Parties

The Parties are and remain independent commercial partners. No provision of the Contract may be interpreted as creating between them a company, an economic interest grouping, an agency relationship, an employment contract or a franchise.

28. Partial invalidity - No waiver

If any of the provisions of the Contract were to be declared null, unenforceable or inapplicable, the other provisions will retain their full effect. The Parties will endeavour to replace the invalidated provision with a clause of equivalent effect.

The fact that one of the Parties does not avail itself, at a given time, of a breach by the other Party of any of its obligations, may not be interpreted as a waiver of the right to avail itself of that breach subsequently.

29. Modification of the GTS

The Publisher reserves the right to modify these GTS at any time. The new GTS will be notified to the Client with reasonable notice and will apply at the end of that notice period unless the Client objects in writing, which entails a right of termination without penalty as at the date the new GTS enter into force.

30. Evidence agreement

The Parties agree that computer records, connection logs, electronic exchanges and electronic signatures are authoritative between them, subject to their integrity, in accordance with articles 1366 et seq. of the French Civil Code (Code civil).

31. Governing law - Competent jurisdiction

The Contract is governed exclusively by French law, to the exclusion of any conflict-of-laws rule leading to the application of another law.

FAILING AN AMICABLE RESOLUTION WITHIN A PERIOD OF THIRTY (30) DAYS FROM THE OCCURRENCE OF A DISPUTE, ANY DISPUTE RELATING TO THE FORMATION, PERFORMANCE OR INTERPRETATION OF THE CONTRACT WILL BE SUBMITTED TO THE EXCLUSIVE JURISDICTION OF THE COMMERCIAL COURT OF BORDEAUX (TRIBUNAL DE COMMERCE DE BORDEAUX), INCLUDING IN THE EVENT OF SUMMARY PROCEEDINGS, MULTIPLE DEFENDANTS OR THIRD-PARTY PROCEEDINGS.

32. Contact

For any question relating to these GTS: support@scale-up.app.