FRANCE Law and Practice Contributed by: Clara Hainsdorf, Bertrand Liard, Saam Golshani and Guillaume Vitrich, White & Case LLP
ments, in particular its obligation to reach a spe - cific result, the parties usually agree on service levels and a quality assurance plan. This implies the definition of key performance indicators and the payment of penalties in the event those indi - cators are not met. In June 2022, the French Supreme Court (1-6-2022 No 20-19.476) reiter - ated the importance of contractually stipulating the service provider's obligations in IT contracts. On this occasion, it ruled that a software deploy - ment contract must be terminated to the detri - ment of the service provider if, being bound by an obligation of result, the latter was unable to resolve the blocking and recurring anomalies In software licence agreements, a key issue is whether the licensee can repair or correct bugs themselves or through a third party, or if only the licensor can perform maintenance. French law typically allows licensors to retain the right to correct bugs, posing challenges for licen - sees without a maintenance agreement. When a licensee has both a licence and a maintenance agreement with the same provider, it is important to clarify whether the termination of one affects the other. Transitioning to new service provid - ers requires a reversibility clause for a smooth transition. The Court of Justice of the European Union recently ruled that decompilation for bug fixing is lawful under certain conditions: neces - sity, lack of specific contractual provisions, and sole purpose of error correction (ECJ, 6 October 2021, C-13/20). Contracts should clearly regu - late decompilation and maintenance terms. complained of by the customer. Specific IT Service Agreements
with guaranteed performance and remedies for non-compliance, and should specify duration, renewal and termination conditions. Key provi - sions must address data privacy, security, liabil - ity limits, dispute resolution and force majeure. Equipment ownership and maintenance respon - sibilities, confidentiality clauses, legal compli - ance and signatures for legal enforceability are essential. Companies should use competitive bidding to negotiate flexible pricing and ensure clear termi - nation terms to minimise penalties. Favourable equipment terms should be sought, such as out - right ownership or low-cost leasing. Engaging legal and technical experts ensures the agree - ment meets operational and regulatory require - ments, and understanding their bargaining posi - tion aids successful negotiation. 8. Trust Services and Digital Entities 8.1 Trust Services and Electronic Signatures/Digital Identity Schemes Electronic Signatures Electronic signatures are governed by the EU regulation on electronic identification and trust services for electronic transactions of 2014 (eIDAS) and the French Civil Code. Three categories of electronic signatures exist pursuant to eIDAS: • advanced electronic signatures are those that meet the requirements set out in Article 26 of eIDAS; • qualified electronic signatures are advanced electronic signatures that are created by a qualified electronic signature creation device
7.2 Service Agreements and Interconnection Agreements
A telecommunications service agreement should clearly define the parties, scope of services, pric - ing and payment terms. It should include SLAs
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