Today the computer takes a essential place in the economy, however the computer science is a technical domain, and complex, that is why is generally included in the computer contracts a contract of computer maintenance which aims at the maintenance computer equipment.
In order to avoid such pitfalls, companies may have an internal IT service, albeit relatively expensive, or call on an outside company, a service provider. In addition to the use of a maintenance service, it is also necessary to supervise the contractual relations in order to optimize the maintenance of the computer park. The contract linking a company to an IT maintenance company is therefore a computer maintenance contract.
According to the definition given by Mr. Vivant (Lamy Computer and Network Law, Lamy Editions, 2004, 590), the maintenance contract is ” the contract by which a company undertakes to check, maintain or repair a technical apparatus, or a complex installation, such as a computer system or set . The computer maintenance contract is not intended for software interventions, which are only subject to improvement, and not maintenance, as Philippe Andrieu quite rightly points out in his article (Philippe Andrieu, Le maintenance contract).
The maintenance object of the contract is said to be ” linked ” or ” autonomous “.
It is said to be linked when it comes from a so-called ” principal ” contract, a contract for the sale of equipment, or rental.
It is said to be autonomous when it is independent of any other contract and relates to equipment acquired by the client company from a supplier other than the maintenance company.
Most often, maintenance contracts belong to the category of ” stand-alone ” maintenance , with client companies generally looking for an overall maintenance of all their equipment.
Entrusting the maintenance of all the computer equipment has the advantage of allowing the maintainer to have a global vision of the facilities of his client, and also allows him to intervene on network problems, relatively common in convenient. The related or autonomous maintenance qualification is not without legal consequences.
Indeed, the principle of the indivisibility of the obligations is provided by articles 1217 and following of the Civil Code. According to these principles, once the interdependence of the contracts underwritten has been characterized, the resolution of the main contract must lead to the resolution of the ancillary maintenance contract, as part of an inseparable whole.
This is the case in Cass. Civ. 1st, September 18th, 2002, Mr X. v / Mutuelle d ‘assurance des Armées (MAA), the Court decided that the resolution of the main contract of installation of the material entailed the automatic resolution of the maintenance contract, inseparable from the the first and the restitution of the sums paid under these two contracts. Cass. Com. February 13, 2007 confirmed this jurisprudence, deciding the interdependence of a set of training and maintenance contracts.
Maintenance can therefore be ” linked ” or ” autonomous “, but it can also be the subject of another distinction: it can be preventive or corrective. According to Philippe Le Tourneau, ” Corrective maintenance can dissociate corrective maintenance from curative maintenance; that one having a scope less vast than this one.
While corrective maintenance stricto sensu is intended to repair a breakdown or any other damage, curative maintenance aims to ” cure the harm ” as a whole, ie to repair the fault but to seek out its causes and consequences and eliminate them.
Thus, corrective maintenance aims to repair, while preventive maintenance aims to check equipment at regular intervals to prevent any problems.
It is understood that the parties must agree on the type of maintenance required. For example, the parties should specify in the contract that maintenance includes both preventive controls at a certain periodicity and all necessary repairs occurring at the option of breakdowns and material damage.
The parties have different obligations, which must be studied more precisely, those of the maintainer or service provider (I) and those of the customer (II).
- Obligations of the maintainer.
The principle of freedom of contract allows the parties to provide for various obligations for the parties. However, the law and case law impose some of them under specific contracts, as is the case with the computer maintenance contract.
In addition, certain obligations are of greater importance than others, which is why in this study we will first examine the obligation to inform (1) and then the performance of the service (2). and lastly the obligation of confidentiality, sensitive in the field of computer science (3).
- A) Obligation to inform
This duty of information of the computer service provider can be defined as being “the obligation made to the supplier to inform himself of the needs of his customer, to inform him of any information which could be useful for him concerning the material or the delivery to deliver (type, characteristics, conditions of use or granting, suitability of the environment, content of the envisaged contracts, costs, guarantees), to propose an adequate solution to his problems which fits in a rational way in his company and to warn him against any possible limitations of the proposed solution “.
The case law has drawn from this general duty of information a triple duty of warning, advice and intelligence. According to the information obligation imposed on the IT service provider, the latter must identify the client’s needs and provide objective information on the services required.
The obligation of advice requires him to guide the customer’s choices, to indicate the best solutions, adapted to his specific needs. The obligation to warn him to finally warn the customer of any risk, constraint or negative aspect of any of its past or present decisions about its computer. The counterpart this heavy obligation, sanctioned by the bringing into play of the contractual liability of the provider, lies in the obligation of collaboration weighing on the customer, obligation described below.
- B) Execution of the service: obligation of means or obligation of result?
It is generally considered that the maintainer is obliged, for the performance of the maintenance service, an obligation of means and not of result: he undertakes to implement the means necessary for the performance of his performance of maintenance.
In the event of litigation, it will be up to the customer to demonstrate that the maintainer did not respect this obligation, delicate proof and expensive to bring as often requiring the intervention of experts.
In addition to the indispensable qualification of the obligation by the contract, the case law has identified certain specific points such as the search for “causes of the failure, drawing up a” technical report “, to remedy it” and ” supply the case. spare parts and continue the execution of his task until perfect completion “(CA Paris, 25 February 1993); or its obligation to repair ” any damage resulting from a faulty repair or insufficient maintenance ” (CA Bordeaux, February 8, 1999).
- C) Obligation of confidentiality
According to the case law (CA Versailles, November 7, 1991), the maintainer is bound to an obligation of confidentiality , especially when he is brought to intervene on site, in services in which the computer system processes confidential and sensitive data of the client company (research and development, industrial, financial or commercial strategic data, personal files concerning staff or third parties, etc.).
With regard to personal data, it may be useful to include in the maintenance contract a clause whereby the service provider undertakes to comply with the requirements of the law of 6 January 1978.
In addition to these sensitive obligations, the contract must describe the equipment to be maintained, the time within which the service provider is required to intervene, the context surrounding the maintenance of the equipment taken by the service provider, etc.
- The obligations of the client.
- A) Obligation to collaborate
This obligation is the direct corollary of the information obligation imposed on the service provider. The balance between the service provider’s obligation to provide information and the client’s obligation of cooperation enables the courts to allocate responsibility between the parties, it being understood that the service provider cannot fulfill his obligation to inform without the active collaboration of his client. The objective is to avoid that the contractual liability of the provider is engaged as soon as any communication is made impossible because of the behavior of the customer.
The first part of the client’s obligation of collaboration lies in the obligation to clearly specify his needs and expectations, most often within a set of specifications that will serve as a support for the service provider in the execution of on the one hand and in the implementation of its obligation to inform.
In addition, the customer must be at the disposal of the service provider to provide all documents necessary for the performance of its service, such as manufacturer data, purchase invoices or the way in which the equipment is used. He must also allow him free access to the equipment, or let him carry the equipment when the maintenance or repair on the spot is obviously impossible.
As underlined by the Paris Court of Appeal, “in accordance with ordinary law, any fault of the beneficiary of the maintenance will diminish all the responsibility of the maintainer, even held by an obligation of result. Thus, was considered as partially responsible for the damage, a customer whose staff had insufficient initial training and was therefore unable to establish safeguards and had the same left the situation deteriorate. “(CA Paris, June 7 1994).
Similarly ” is partially responsible for the customer who, not having connected his computer to a telephone, had paralyzed remote maintenance ” (CA Poitiers, 12 Sept. 1995).
- B) Obligation to pay the price.
As part of a maintenance service, the price is called “royalty”, and according to common law, any beneficiary of such a service must pay this fee, which is quite logical. The case law has further specified that when this fee is fixed in the form of a fixed price, ” the customer owes nothing more, even if the maintainer has performed additional useful (or even indispensable) work, since it is not able to produce a purchase order”(CA Versailles, June 16, 2000).
- C) Receive the benefit.
Exactly as in sales, the customer must “verify” the performance of its obligations by the provider. He must therefore acknowledge receipt of the service. Like the common law of sale, the customer can simply receive the benefit, either to make reservations or refuse to receive it.
In conclusion, the computer maintenance contract is a complex contract, which must be precise in order to avoid a maximum of litigation. The parties must therefore be fully aware of their respective obligations and respect them, so that the performance is as good as possible. Much attention is therefore to be paid to the drafting of these contracts, now very common but still too vague.