ACCENGAGE S.A.S («Company», located at 31 rue du 4 septembre, 75 002 PARIS, FRANCE) and “Customer”, enter into this Customer Agreement (“Agreement”) to establish the terms and conditions by which Customer may use of ALL ASPECTS of the Service ACCENGAGE made available by ACCENGAGE (collectively referred to in this agreement as the “Service”).
ACCENGAGE reserves the right to change or modify any of the terms and conditions contained in this Agreement at any time, in its sole discretion, by posting changes at www.Accengage.com. Customer continued use of any part of the Service following the posting of such changes or modifications will constitute Customer acceptance of such changes or modifications.
ACCESS TO THE SERVICE
Pursuant to this Agreement, Customer may order from ACCENGAGE (a) licenses to access and use one or more of ACCENGAGE’s hosted online services and/or (b) related configuration, customization or other professional services.
The specifics of each Customer order will be set forth on one or more order forms or other ordering documents (“Order Form”). Services may be ordered as part of an aggregated platform offering or as individual service offerings (all as further described on the relevant Order Form).
Subject to the terms and conditions of this Agreement, ACCENGAGE grants Customer a limited, revocable, non-exclusive, non-transferable, non-sublicenseable license to access the Services listed on an Order Form for the applicable Subscription Term through the www.Accengage.com website (the “Website”) to gain access to, upload, manipulate and manage data owned, provided or aggregated by Customer as uploaded to the Service solely for Customer’s own business purposes.
Customer: (a) is solely responsible for all Customer Data regardless of whether such data is uploaded directly by Customer or by ACCENGAGE at the direction of Customer; (b) acknowledges that ACCENGAGE has no control over and will not monitor the content of the Customer Data; and (c) agrees that Customer will be responsible for (i) establishing all terms and conditions applicable to its users (ensuring that such terms and conditions comply with this Agreement) and (ii) obtaining all necessary consents of third parties to the collection, processing, and use of Customer Data, including any processing by ACCENGAGE in connection with ACCENGAGE’s provision of the Service. Customer may access the Service only as permitted by this Agreement.
Customer will be assigned a unique user identification name and password for access to and use of the Service by Customer. Customer acknowledges that it will be fully responsible for all liabilities incurred through use of its unique user identification name and that any transactions completed under its unique user identification name will be deemed to have been completed by Customer. ACCENGAGE shall not be responsible for any loss, claim or other liability that may arise from the anauthorized use of Customer password
ACCENGAGE reserves the right to upgrade and update the Site and/or Service at its discretion, including without limitation the software upon which the Service is based, and the features and functionalities available through the Service.
RESTRICTIONS AND PROHIBITIONS ON APPLICATIONS
The Service is only licensed, not sold. This agreement only gives Customer some rights to access and use the Service. ACCENGAGE reserves all other rights. Customer may use the Service only as expressly permitted in this agreement. Customer must comply with any technical limitations in the Service. Customer may not reverse engineer, decompile or disassemble the Service, except and only to the extent that applicable law expressly permits, despite this limitation; or rent, lease, sublicense, or lend the Service or any of its components.
Customer warrants, represents and agrees that it will not contribute, submit or make available through the Services, or use the Services in connection with, any Content that is infringing, libelous, defamatory, obscene, pornographic, abusive, offensive or otherwise violates any law or right of any third party.
Customer agrees that the Content made available through the Service will not, to the best of Customer knowledge: (a) be racist, supportive of terrorist activities, defamatory, libelous, unlawfully threatening or unlawfully harassing; (b) contain nudity, violence, or offensive subject matter or contains a link to an adult website; (c) solicit personal information from anyone under eighteen (18) years of age without expressly complying with all applicable laws; (d) harass or advocate harassment of another person; (e) infringe any third party’s copyright, trademark, service mark, trade secret, or other proprietary rights or rights of publicity or privacy; (f) promote information, material, or content that Customer knows is false or misleading or promotes illegal activities or conduct that is abusive, threatening, obscene, defamatory, libelous, obscene, scandalous, inflammatory, pornographic, or profane material, or any other content that could give rise to any civil or criminal liability under the law; (g) involve the transmission of “junk mail,” “chain letters,” unsolicited mass mailing, or “spamming”; nor (h) violate any law or regulation (including without limitation those governing consumer protection, unfair competition, anti-discrimination or false advertising).
ACCENGAGE reserves all rights with respect to the Service, and may pursue all legally available options under both civil and criminal laws (and may cooperate with law enforcement agencies) in the event of any violations.
Customer must at any time comply with Apple IOS, Google Android, Facebook and other OS guidelines.
USER DATA – PRIVACY
Customer will have sole control over any and all Customer Data which Customer uploads through the Service. Customer understands that the technical processing and transmission of the Service, including any Customer Data provided by Customer, may involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices, and Customer consents to such transmission and changes.
The Service collects data concerning the characteristics and behavior of end users.
Customer must comply with all privacy laws or regulations passed at any time by any government having jurisdiction Customer.
ACCENGAGE shall have the right to use, create derivative works of, distribute and otherwise exploit anonymous, aggregate usage data derived from Customer Data provided that in no event will ACCENGAGE disclose or make available any Customer Data in a manner that contains or reveals any personally-identifiable information or is specifically attributable to Customer.
PROTECTION OF PERSONAL DATA AND RULES APPLICABLE TO PUSH NOTIFICATIONS
The ACCENGAGE solution allows for collecting and processing personal data as well as technical data related to the terminals or behaviours of end users, for the purposes of sending electronic communications that constitute notifications or commercial prospecting according to the purposes defined below. Consequently, the Parties agree to comply with the following provisions:
1) Protection of personal data
Each Party undertakes to comply with the regulations in force on the matter of the protection of personal data, within the framework of this Contract, including, in particular, the General Data Protection Regulation No. 2016-679 of 27 April 2016 and any amendments to French legislation.
In this respect, the Client is the “Controller” of the personal data of clients and prospects, which it may transfer to the Provider for the performance of the Services. ACCENGAGE intervenes as “Processor”, strictly within the scope of the Services defined in this Contract.
ACCENGAGE will process the personal data listed in the Annex and related to the persons defined in the Annex. ACCENGAGE will process the aforementioned data solely for the purposes prescribed by the Client, in accordance with the instructions from the Client and for a period defined with the Client (see Annex).
Regarding the security and confidentiality of personal data, ACCENGAGE undertakes to (i) keep the personal data strictly confidential, (ii) implement the appropriate organisational and technical security measures to protect the personal data within the framework of its Solution and its services, (iii) ensure that members of its staff that have access to the data, that intervene within the framework of the Contract and for the aforementioned purposes, are held to the obligation of confidentiality and have received the necessary awareness training, and (iv) establish, maintain and provide, upon first request, the documentation describing the security and confidentiality measures implemented in the Solution to protect personal data.
Personal data shall only be collected, processed and kept within the territory of the European Union. ACCENGAGE undertakes not to carry out any transfer of personal data outside the territory of the European Union except within a framework that complies with the regulatory requirements, either towards countries that present an “adequate” level of protection according to the European Personal Data Protection Authorities (the CNIL in France) or towards entities that have signed standardised contractual clauses as prescribed by the European authorities.
ACCENGAGE has appointed a data protection officer and established a record of processing activities. The Client undertakes to do the same, under its responsibility. ACCENGAGE shall provide the Client with any and all useful information to document its record of processing activities.
Regarding the protection of personal data, ACCENGAGE undertakes to (i) assist and cooperate with the Client, in particular in the case of implementing an impact analysis or a request from the control authority, (ii) implement and maintain a procedure to report any breaches or unauthorised access to the data, whether proved or suspected, leading to a notification to the Client as quickly as possible and, where appropriate, to the individual concerned, (iii) modify or eliminate, upon request from the Client or the individual concerned, any personal data in the event that the person concerned exercises the rights granted to him or her by virtue of the regulations, so that the data remain accurate, up to date and lawful, and (iv) cooperate with the personal data protection authority in coordination with the Client, where appropriate.
It is up to the Client to deploy equivalent measures, under its responsibility, in its own information system and with its own suppliers or subcontractors, in particular for the purpose of ensuring the strict lawfulness (obtainment of consents, information of individuals) of the personal data to be transferred to ACCENGAGE for the purposes of the performance of its services or that would be loaded onto the Solution for the purposes of performing its functions.
In any case, it is important to note that the Solution and the services provided by ACCENGAGE represent a supplementary component but are insufficient to make the Client compliant with all the regulatory requirements on the matter of data protection and that the responsibility of ACCENGAGE on the matter of compliance with regulations is strictly limited to the Solution delivered and the services provided by it. The Client must have an information system and internal rules that comply with the regulatory requirements, decide whether it wishes to carry out an impact analysis, where appropriate, and raise awareness among its employees, suppliers and subcontractors regarding the regulatory requirements, under its exclusive responsibility. In no case shall ACCENGAGE be held liable in the event of non-compliance, by the Client, with the organisational and technical measures for the protection of the personal data under its responsibility, nor, more generally, in the determination, by it, of the categories of data collected, the purposes sought, the consents obtained and the processing implemented under its authority or at its request.
ACCENGAGE does not process nor store personal data classified as “sensitive”.
Consequently, it is forbidden to create, on the ACCENGAGE software, database fields aimed at recording the following information: racial or ethnic data, data about political, philosophical or religious opinions, union membership, sexual orientation, health data or bank details.
2) Regulations applicable to notifications
Each Party undertakes to comply with the regulations in force on the matter of electronic prospecting, within the framework of this Contract, including Law No. 2004-575 of 21 June 2004, for trust in the digital economy, which establishes the principle of Consent before receiving direct prospecting (article L34-5 of the Code of Post and Electronic Communications) and ordinance 2011-1012, of 24 August 2011, on electronic communications, aimed at collecting and processing behavioural data, in light of Directives 2009/136/EC and 2009/140/EC as well as any amendments, in particular to French legislation.
Consequently, it is up to the Client to collect, prior to any processing and to any transfer of data to ACCENGAGE, express consent from the persons concerned (end users, end clients, prospects, etc.), in compliance with the regulatory requirements and, in particular, the aforementioned regulations on the protection of personal data. Consent must expressly cover the collection and processing of the personal and behavioural data of the persons concerned and must be free, informed, positive and unambiguous, for specific purposes, and subject to objection or revocation of consent from the person concerned.
The Client shall transfer, to ACCENGAGE, any evidence of the consents so gathered, as well as, more generally, any requests from the persons concerned relating to the revocation of their consent (as well as any other request for access, erasure, modification, limitation or portability of their data). The Client acknowledges that ACCENGAGE will be unable to collect and process any personal or behavioural data of end users that has not been subject to traced consent.
Furthermore, the Client acknowledges that the persons concerned must be able to object, at any time, to the sending of notifications and that ACCENGAGE will comply with this request and inform the Client. The Client shall thus indemnify ACCENGAGE against any recourse from a person concerned, as well as any penalties issued by a control authority, if non-compliance by the Client with its obligations, in particular of information and obtainment of prior consent, leads to the collection and processing of data in breach of applicable regulations.
Furthermore, the Client undertakes to comply with the guidelines provided by Apple, Google and Facebook and any operating system or telecom operator regarding the use of notifications as well as the guidelines of any new operator, browser or OS subsequently implemented in the ACCENGAGE solution. The Client shall hold ACCENGAGE harmless in the event of recourses from the companies in relation to contents, messages or Campaigns not compliant with their rules.
In any case, the Client shall be responsible for (i) the Files, contents and messages sent through the ACCENGAGE solution, (ii) the quality of the Files as well as their compliance with the legal provisions and guidelines established by Apple, Google and Facebook and any other operating system or telecom operator, (iii) the formatting of Campaigns, the planning and validation of notification Campaigns and the management of requests or complaints from individuals relating to the Files of the Client.
In particular, the Client expressly undertakes to ensure that the contents of each Message and, more generally, its Campaigns:
o Are lawful, not misleading, loyal and decent and do not contain any information or component of an unlawful nature (including material that is offensive, defamatory, copyright-infringing, xenophobic or otherwise infringes upon applicable laws and regulations, public order and human dignity in any manner whatsoever) or that infringe upon the rights to personality, personal data, intellectual property, trademarks, private life or, more generally, the rights of third parties;
o Are strictly compliant with the requirements and prohibitions or advertising regulations applicable to certain regulated industries or products (tobacco, alcohol, pharmaceutical products, legal services, accounting services, financial services, etc.), as well as with the recommendations of the ARPP, in particular those relating to children and the image of women;
o Comply, in terms of their presentation and contents, with the legal obligation to use the French language and the provisions of consumer law (comparative, misleading or likely to induce to error, deceptive and/or aggressive advertising);
o Are not likely to damage the brand image of ACCENGAGE.
ACCENGAGE reserves the right to perform or have others perform, through any appropriate means of its choice, any tests aimed at ensuring the compliance of each Message.
Furthermore, the Client undertakes to ensure that each of its websites or apps (as well as other websites affiliated with it or accessible through hyperlinks, where appropriate) is compatible with public order, human dignity and all legal, regulatory or administrative requirements.
The Client shall take responsibility for the requests eventually submitted by users that are sent consecutively to Campaigns and Messages.
The Client shall be responsible for any potential complaints and disputes with the aforementioned users, in particular those relating to its contractual commitments and the contents of Messages and the use of data on the websites accessible from Campaigns. Any dispute shall be processed and financially borne solely by the Client, in particular in the event of an exchange or refund of the sale price received from one of the aforementioned users, in the case of a sale of products and/or services.
In the event of non-compliance with the foregoing provisions, ACCENGAGE reserves the right to suspend the dissemination and routing of the Messages and Campaigns of the Client immediately, without the latter being able to claim any damages whatsoever on these grounds.
In any case, the Client shall indemnify ACCENGAGE against any recourse and/or action that may be brought by any individual or legal entity, for any reason whatsoever, due to the dissemination of the Messages and Campaigns of the Client through the ACCENGAGE solution. Consequently, the Client undertakes to compensate ACCENGAGE with the amount of any final sentence or transaction, in principal, interest and accessory costs, handed down against ACCENGAGE on the basis of an action brought by any person on the grounds of non-compliance, by the Client, with its obligations under this article, as well as to bear the entire costs and fees that would be charged to the Client directly or charged to ACCENGAGE.
Customer guarantees that data regarding consumers gained by use of the Service will be only used for legal purposes and Customer will indemnify, defend and hold harmless ACCENGAGE from any and all losses, liabilities, claims, obligations, costs, expenses (including without limitation reasonable attorney’s fees) and losses which result from any claim of damages brought or sought against ACCENGAGE that alleges consumer data gained by use of the Service was used for any purpose in violation of any applicable laws. The indemnity obligations of this paragraph are contingent on ACCENGAGE giving prompt written notice of any such claim. ACCENGAGE will have sole control over the litigation or settlement of such claim. The provisions of this Paragraph shall survive the termination of this Agreement.
Customer will indemnify and hold ACCENGAGE, its parents, subsidiaries, affiliates, officers, directors, employees, suppliers, users or affiliates, harmless from and against any and all claims, liabilities, penalties, settlements, judgments, losses, damages, fines and expenses (including attorney’s fees and costs) arising out of or relating to (a) any claims that Customer has used the Service in violation of another party’s rights, in violation of any law, in violations of any terms of this Agreement, or (b) any content that Customer or anyone using Customer account may submit or access in the course of using the Service; (c) Customer use of, or inability to use, the Service; (d) Customer violation of the terms of this Agreement; and (e) any violation or failure by Customer to comply with all laws and regulations in connection with Customer use of the Service, whether or not described herein.
PAYMENT AND CREDIT TERMS
All payments will be made in advance unless agreed upon otherwise or credit is approved and ACCENGAGE is under no obligation to perform agreed upon services until payment is received.
Set-up, tagging plan, training fees are invoiced at signature.
Total minimum Service Fees are invoiced annually in advance upon signature of Order Form or Contract. Any additional fees due to increase in usage are billed quaterly in arrears as incurred.
Each year, on the Contract or Order Form renewal date (or on each renewal date), total minimum Service Fees for the coming period will also be invoiced annually in advance.
If Customer fails to pay overdue invoices for previous use of Service, ACCENGAGE reserves the right to immediately terminate any active campaigns.
Customer agrees to follow dispute resolution agreement as specified in section “MISCELLANEOUS” herein.
All payments must be made in EUROS. Customer understands and agrees that in no event, and under no circumstance will data provided by any ACCENGAGE representative constitute final billing numbers. Only invoices mailed directly to Customers and Agencies are to be construed as representative of billable amounts.
Acceptance and test phase of Customer application : any test phase beyond the initial test of the Customer application will be charged at 500 € (excluding TAX) per test, per application and per OS.Provision of developers : any provision of developers by Accengage to the Client in order to assist them on their application due to a poor implementation of the ACCENGAGE SDK will be charged at the price of 1 500 € per day (excluding TAX).
TERM & TERMINATION
This Agreement shall continue in effect until terminated as set in the Order Form.
The initial subscription term for each Service license purchased will be as set forth in the applicable Order Form. The Agreement will be tacitly renewed for an equal period of time after the expiration of the Initial Subscription Term except if the Order Form specifies a different duration of automatic renewal. Each Initial Subscription Term will commence on the date that both parties have executed the Order Form under which Customer acquires such license, unless a later commencement date is expressly set forth on such Order Form. During each Renewal Subscription Term, the terms and conditions (including Fees) that were in effect during the preceding Initial Subscription Term or Renewal Subscription Term will apply unless either party notifies the other at least three (3) months prior to the commencement of the renewal term that it does not intend to renew the Subscription Term upon the same terms. In addition, this Agreement and/or any Order Form may be terminated by either party if the other party materially breaches this Agreement and does not cure the breach within thirty (30) days after receiving written notice thereof from the non-breaching party.
Upon termination or expiration of this Agreement or Order Form for any reason: (a) any amounts owed to ACCENGAGE under this Agreement or Order Form before such termination or expiration will be immediately due and payable; (b) all licensed rights, including rights of access to the Service, granted in this Agreement or Order Form will immediately cease to exist, and ACCENGAGE will cease making the Service available, and if applicable, cease performing all Professional Services; (c) Customer must promptly discontinue all use of the Service for the terminated licenses; and (d) upon ACCENGAGE’s receipt of all payments from Customer, ACCENGAGE will return all data uploaded by or for the Customer under this Agreement. Any termination of a particular Order Form will not, by itself, terminate this Agreement; rather all other Order Forms then outstanding will remain in effect.
Company may terminate or suspend any and all Services and access to the www.Accengage.com website immediately, without prior notice or liability, if Customer breaches any of the terms or conditions of this Agreement.
Customer acknowledges that termination and/or monetary damages may not be a sufficient remedy if Customer breaches this agreement and that ACCENGAGE will be entitled, without waiving any other rights or remedies, to injunctive or equitable relief as may be deemed proper by a court of competent jurisdiction in the event of a breach.
Upon termination of the Customer’s account, Customer’s right to use the Services will immediately cease and Customer will remove all Company code from Customer’s Mobile Properties. All provisions of this Agreement which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, and limitations of liability.
REPRESENTATIONS AND WARRANTIES
CUSTOMER represents and warrants to Company that (i) CUSTOMER is the owner of each Mobile Property CUSTOMER designates in connection with the use of Services or that CUSTOMER is legally authorized to act on behalf of the owner of such Mobile Property for the purposes of this Agreement, and (ii) CUSTOMER has all necessary right, power and authority to enter into this Agreement and to perform the acts required of CUSTOMER hereunder. CUSTOMER further represents and warrants to Company that each of CUSTOMER’s Mobile Properties and any material displayed therein: (a) comply with all applicable laws, statutes, ordinances and regulations; (b) do not breach and have not breached any duty toward or rights of any person or entity including, without limitation, rights of intellectual property, publicity or privacy, or rights or duties under consumer protection, product liability, tort, or contract theories; and (c) are not hate-related in content.
“Confidential Information” includes any proprietary data and any other information disclosed by one party to the other in writing and marked “confidential” or “priviledged”. Notwithstanding the foregoing, Confidential Information will not include any information that is or becomes publicly known, which is already in the receiving party’s possession prior to disclosure by a party or which is independently developed or collected by the receiving party without the use of Confidential Information. Neither party will use or disclose the other party’s Confidential Information without the other’s prior written consent except for the purpose of performing its obligations under this Agreement or if required by law, regulation or court order. Upon termination of this Agreement, the parties will promptly either return or destroy all Confidential Information and, upon request, provide written certification of such.
ACCENGAGE is not liable for delays in delivery and/or non-delivery in the event of an act of God, actions by any governmental or quasi-governmental entity, Internet failure, equipment failure, power outage, fire, earthquake, flood, insurrection, riot, act of terrorism, act of war, explosion, embargo, strike (whether legal or illegal), labor or material shortage, transportation interruption of any kind, work slow-down, or any condition beyond ACCENGAGE’s control affecting production or delivery in any manner.
NON-SOLICITATION – NON HIRING OF PERSONNEL
Customer agrees that without expressed written consent of Accengage, at all times while Customer is employing the services of Accengage and for twenty four (24) months after contract period terminates, Customer will not, directly or indirectly, whether individually or as an officer, director, employee, consultant, partner, stockholder, individual proprietor, joint venturer, investor, lender, consultant or any other capacity whatsoever: solicit, divert hire, retain (including as a consultant) or encourage to leave the employment or contract period of Accengage and any employee or contractor of Accengage, or hire or retain (including as a consultant) any former employee of Accengage who has left the employment or contract period of Accengage within twenty four (24) months prior to such hiring or retention.
In the event that Customer does not respect this non-solicitation agreement, Customer commits to compensate Accengage by paying a compensation equal to thirty six (36) months of the last gross remuneration received by the concerned employee.
DISCLAIMER OF WARRANTY AND LIMITATION OF LIABILITY AND EXCLUSION OF REMEDIES AND DAMAGES
THE SERVICES, CONTENT AND SITE ARE PROVIDED ON AN “AS IS” BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. FURTHER, ACCENGAGE AND ITS SUPPLIERS DO NOT MAKE, AND HAVE NOT MADE, ANY REPRESENTATION OR WARRANTY THAT THE SERVICE IS ACCURATE, COMPLETE, RELIABLE, CURRENT, ERROR-FREE, OR VIRUS-FREE OR THAT THE OPERATION OF THE SERVICE WILL BE UNINTERRUPTED, AND CUSTOMER ASSUMES ALL RISK AND RESPONSIBILITY WITH RESPECT THERETO.
IN NO EVENT SHALL COMPANY, ITS SUBSIDIARIES, AFFILIATES OR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS, BE LIABLE TO CUSTOMER OR ANY OTHER PERSON OR ENTITY, UNDER ANY THEORY, INCLUDING WITHOUT LIMITATION NEGLIGENCE, FOR DAMAGES OF ANY KIND ARISING FROM OR RELATED TO THE SERVICE OR ANY INFORMATION, CONTENT OR MATERIALS IN OR ACCESSIBLE THROUGH THE SERVICE, INCLUDING, BUT NOT LIMITED TO, DIRECT, INDIRECT, ACTUAL, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES, LOST INCOME, REVENUE OR PROFITS, LOST OR DAMAGED DATA, OR OTHER COMMERCIAL OR ECONOMIC LOSS, THAT RESULT FROM YOUR USE OF, OR INABILITY TO USE, THE SERVICE, EVEN IF ACCENGAGE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES ARE FORESEEABLE.
IN NO EVENT SHALL THE TOTAL LIABILITY OF ACCENGAGE OR ANY OF THE ABOVE-REFERENCED PERSONS OR ENTITIES OR THEIR SUPPLIERS, UNDER ANY THEORY, ARISING OUT OF OR RELATING TO THIS AGREEMENT EXCEED 30% OF THE NET AMOUNT PAID BY CUSTOMER TO COMPANY DURING THE THREE MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE RELEVANT CLAIM. CUSTOMER CANNOT RECOVER ANY OTHER DAMAGES, INCLUDING CONSEQUENTIAL, LOST PROFITS, SPECIAL, INDIRECT OR INCIDENTAL DAMAGES.
This Agreement constitutes the entire agreement between Customer and ACCENGAGE and governs Customer use of the Service, superseding any prior agreements between Customer and ACCENGAGE with respect to the Service.
The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder.
Company shall not be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond Company’s reasonable control.
If any provision of this Agreement is found to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable.
This Agreement is not assignable, transferable or sublicensable by Customer except with Company’s prior written consent.
This Agreement shall be governed by and construed in accordance with the laws of FRANCE without regard to the conflict of laws provisions thereof.
In the event of litigation arising from the interpretation or performance of the Agreement, the courts of PARIS (FRANCE) shall have sole jurisdiction even in case of multiple parties.
Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all modifications must be in a writing signed by both parties, except as otherwise provided herein. In the event of a conflict between this Agreement and any document incorporated herein by reference, this Agreement shall govern.
No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Company in any respect whatsoever.
Customer allows ACCENGAGE to use the Customer name, or any other distinctive sign belonging to Customer, as a business reference and in press releases indicating trade references. ACCENGAGE may also include the Customer name on a list of references intended to be provided to prospects of ACCENGAGE.
ANNEX 1 – DETAILS OF THE PROCESSING
Nature and Purpose of Processing
Accengage will Process Personal Data as necessary to perform the Services pursuant to the Agreement, as further specified in its Documentation, and as further instructed by the Client in its use of the Services.
Duration of Processing
Accengage will Process Personal Data for the duration of the Agreement, unless otherwise agreed upon in writing.
Categories of Data Subjects
The Client may submit Personal Data to the Services, the extent of which is determined and controlled by the Client in its sole discretion, and which may include, but is not limited to Per-sonal Data relating to the following categories of data subjects:
● Prospects, customers
● Client’s Users authorized by Client to use the Services
Type of Personal Data
The Client may submit Personal Data to the Services, the extent of which is determined and controlled by the Client in its sole discretion, and which may include, but is not limited to the following categories of Personal Data:
● First and last name
● Contact information (email, phone, physical address…)
● ID data
● Connection data
● Localisation data
The Client is not allowed to submit the following Personal Data to Accengage :
Racial and ethnic data, political, philosophical or religious belief, sexual orientation, health data, bank data
ANNEX 2 – TECHNICAL AND ORGANISATIONAL MEASURES
Physical access monitoring
Measures to prevent unauthorised persons from gaining physical access to data processing facilities where Personal Data are processed and used:
– 3 access steps : control gate, identification and access gate to datacenter
– Gatekeeper 24hours / 365 days
– Video control 24hours / 365 days, identity card reader
– Inside datacenter: limited access, identity card reader on each door
System access monitoring
Measures to prevent unauthorised persons from being able to use the data processing systems:
– Accengage platform protected by a dedicated firewall (Juniper)
– Database servers stored in a private network, can’t access from outside
– Each client datas are hosted on a separate database with separate access codes.
– Rights depend on the persons, dedicated passwords
Data access monitoring
Measures to ensure that the persons authorised to use a data processing system have access only to the data which they have the authority to access and that the Personal Data cannot be read, copied, altered or removed without authorisation during the processing, use or after the storage thereof:
– Rights depend on the persons, dedicated passwords
– Database supervision to prevent interruptions and problems
– Intrusion Prévention System implemented to identify attacks (patterns, backdoors, Worms, Trojans, Syn Floods, spanning, ARP, IP Spoof).
Measures to ensure that the Personal Data are not read, copied, altered or removed without authorisation during the electronic transmission or transport or data carrier backup thereof and that it will be possible to review and determine which bodies have been envisaged as the recipient of a Personal Data transfer by way of data transmission facilities:
– Transport security
Measures to ensure that it will be possible to review and determine after the fact whether and by whom Personal Data was entered into, modified in or removed from data processing systems:
– Transport security
Measures to ensure that Personal Data, which are processed under commission, can be processed only in accordance with the Controller’s Instructions (Job monitoring)
– Unambiguous wording of the Agreement
– Formal commissioning (text form required)
– Subcontractors may be engaged only with written consent of the Client in each individual case
Measures to ensure that the Personal Data are protected against accidental destruction and loss:
– Servers Redundancy
– Second platform in another location with all data saved in case of emergency
– Backup procedures
– Uninterruptible power supply (UPS)
– Anti-virus/firewall systems
– Disaster recovery plan
Measures to ensure that data collected for different purposes can be processed separately:
– Each client datas are hosted on a separate database with separate access codes.
ANNEX 3: Airship Customer Engagement Platform Terms
This Annex 2 includes additional terms and conditions to the Customer Agreement and applies only to ACCENGAGE’s Customers who purchase a subscription to access and use the Airship Customer Engagement Platform or the Apptimize Testing Platform from ACCENGAGE. All references to Accengage in the Customer Agreement shall include all Affiliates of Accengage, and all references to the Service in the Customer Agreement shall also include the Airship Customer Engagement Platform and the Apptimize Testing Platform, if purchased by the Customer:
1. DEFINITIONS. In addition to the terms defined in the body of the Customer Agreement, the following terms have the following meanings:
“Accengage” means Accengage S.A.S, and its Affiliates.
“Acceptable Use Policy” means the Airship policy for appropriate use of the Service. The most recent copy of such Acceptable Use Policy is available here: http://airship.com/legal/acceptable-use-policy.
“Account User” means an individual who is authorized by Customer to use the Service and to whom Customer (or Airship at Customer’s request) has supplied a login ID and password to access and use the Service. Account Users may include Customer’s employees, consultants, contractors and agents, but may not include any competitors of ACCENGAGE.
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Airship” means Urban Airship, Inc., d/b/a Airship, a Delaware corporation and its subsidiary, Apptimize LLC. (“Apptimize”).
“Airship Library” means the latest version of Airship’s proprietary code and binary library made available by Airship for use in connection with the Service, and includes Airship SDKs and APIs, and Apptimize SDKs and APIs.
“Applicable Laws” means laws, statutes, regulations or directives created by common or statutory laws that are applicable to the provision or use of the Service.
“Customer” means You or if You are accepting this Agreement on behalf of a company or other legal entity, Customer shall mean such company or other legal entity.
“Customer Data” means electronic data and content submitted by or for Customer, or processed by, the Service and includes Notifications.
“Customer Digital Asset” shall mean mobile applications, web domains, devices, software applications and/or communication channels owned by Customer and made available to End Users.
“End User” shall mean any end user of one or more of Customer Digital Asset(s).
“Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.
“Notification” shall mean any communication with End Users made by or for Customer via the Service in connection with a Customer Digital Asset, and if the Service includes SMS Service, then “Notification” includes “SMS Notifications”.
“Professional Services” means consulting services, implementation services, configuration services, technical support services, and/or other professional services identified in the applicable Order Form or statement of work, and relating to the Service.
“Prohibited Data” means: (a) government issued ID numbers such as passport numbers, taxpayer numbers, driver’s license numbers, (b) individual medical or health information (including without limitation, protected health information under HIPAA), (c) individual financial information or account numbers (including without limitation, credit or debit card numbers or bank account numbers), (d) security codes or passwords (other than passwords for Customer’s account on the Service), or (e) “special categories of personal data” under the EU General Data Protection Regulation) or similar sensitive information under other comparable laws or regulations.
“SMS Notifications” means short message service (SMS), multimedia messaging service (MMS) or text-based messages to an MSISDN (phone number) to third party devices.
“SMS Service” means the functionality within the Service that allows Customer to send SMS Notifications.
“Subscription Term” means the subscription period for the Service specified in an applicable Order Form.
“Third Party Applications” means third party Web-based or offline software applications, operating systems (such as iOS or Android), platforms, networks, certificates or devices that interoperate with the Service that is provided by the Customer or a third party.
2. USE OF SERVICE.
2.1. Subscriptions. Unless otherwise provided in the applicable Order Form, access to the Service is purchased as a subscription to access and use the Service during the Subscription Term. Delivery of the Service occurs upon Company’s delivery of the initial login to the Service to the Account User designated by Customer.
2.3. Usage Restrictions. Customer shall not (a) make the Service available to, or use the Service for the benefit of, anyone other than Customer or Account Users, (b) sell, resell, license, sublicense, distribute, rent or lease the Service, include the Service in a service bureau or outsourcing offering, or make the Service available to any third party, (c) use the Service in a manner that violates Applicable Law or any applicable Third Party Application terms, (d) use the Service to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of the Service or third-party data contained therein, (f) attempt to gain unauthorized access to the Service or its related systems or networks, (g) permit direct or indirect access to or use of the Service in a way that circumvents a contractual usage limit, or bypass or breach any security device or protection included in the Service, (h) copy the Service or any part, feature, function or user interface thereof, (i) access the Service in order to build a competitive product or service or for other competitive purposes, (j) use the Service to make a decision regarding an individual based solely on automated processing which produces legal effects concerning such individual or similarly significantly affects such individual, including, without limitation, establishing an individual’s eligibility for credit, employment or insurance, or (k) use the Service to submit, collect, transmit, process or store any Prohibited Data. ACCENGAGE shall have the right (but not the obligation) in its reasonable discretion to refuse to transmit or remove any Customer Data that, in ACCENGAGE’s reasonable judgment violates any of the terms of this Agreement, the Acceptable Use Policy or any Applicable Law. Notwithstanding the foregoing, ACCENGAGE has no obligation to review Customer Data or any Notification content. If Customer’s or any Account User’s use of the Service, in ACCENGAGE’s reasonable judgment, imminently threatens the security, stability, integrity or availability of the Service or otherwise harms other customers or third parties or violates the Acceptable Use Policy or Applicable Law, ACCENGAGE may immediately suspend the Service; provided that ACCENGAGEwill use commercially reasonable efforts under the circumstances to provide Customer with prior notice and opportunity to correct usage prior to any suspension. Airship will have no liability for any such suspension made in good faith.
2.4. SMS Service. This Section applies only if Customer’s use of the Service includes SMS Service. In sending SMS Notifications or in accessing or using the SMS Service, Customer shall, and shall ensure that all Account Users, comply with (i) all Applicable Laws in every applicable jurisdiction, (ii) the additional requirements applicable to the use of the SMS Service set forth in the Acceptable Use Policy, and (iii) all applicable telecommunications or network provider rules. ACCENGAGE shall not be liable, either directly or vicariously, for Customer’s or any Account User’s failure to comply with any Applicable Law. ACCENGAGE shall have the right, but not the obligation, to audit Customer’s access or use of the SMS Service, upon reasonable notice to Customer. Customer will provide ACCENGAGE with any information or material relating to Customer’s access or use of the SMS Service as reasonably requested by ACCENGAGE in order to carry out any such audit.
2.5. Third Party Applications. The Service may enable Customer to link Third Party Applications with the Service. By linking a Third Party Application with the Service, Customer: (i) authorizes ACCENGAGE to access, receive and, in certain cases, store data from the Third Party Application via the Service (all such data accessed, received and/or stored being Customer Data), and (ii) grants ACCENGAGE permission to allow the provider of that Third Party Application to access Customer Data via the Service, in each case solely as required for the interoperation of that Third Party Application with the Service. ACCENGAGE is not responsible for any usage, transmission, disclosure, loss, modification or deletion of Customer Data or any other content sent to, provided by or accessed by a Third Party Application that Customer links to the Service. Customer is solely responsible for obtaining and securing from the Third Party Application provider all rights and permissions necessary for Customer to link such Third Party Application to the Service, and ACCENGAGE shall have no liability in connection therewith. Customer’s access to and use of any Third Party Application (including the linking of the Third Party Application to the Service) is subject to such Third Party Application provider’s terms and conditions that govern the access and use of the Third Party Application, or any separate agreement or transaction that Customer enters into with the Third Party Application provider, and Airship shall have no liability in connection therewith.
3. PROPRIETARY RIGHTS AND LICENSES; CUSTOMER DATA.
3.1. Ownership of the Service. Airship (and its licensors, where applicable) shall own all right, title and interest, including all inventions (whether patented or not), patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and trade secrets, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world, in and to the Service and all modifications, extensions, customizations, scripts or other derivative works of the Service. Airship owns all right, title and interest in the technical, performance, usage and operational data of its Service, which Airship will use to analyze, improve, develop, support and operate the Service. No rights are granted to Customer hereunder other than as expressly set forth herein, and Airship (and its licensors, where applicable) reserve all rights not expressly granted herein.
3.2. License to Use the Airship Library. ACCENGAGE hereby grants to Customer a worldwide, limited-term license to use the Airship Library solely in connection with the Service and in accordance with this Agreement and the Documentation during the applicable Subscription Term.
3.3. Ownership of Customer Data. As between Customer and Airship, Customer exclusively owns all right, title and in and to all Customer Data and all Customer Digital Assets. Customer hereby grants to ACCENGAGE a non-exclusive, royalty-free, non-transferable (except pursuant to a permitted assignment under this Agreement), worldwide license during the applicable Subscription Term to receive, copy, modify, display, store, perform and distribute copies of Customer Data for the purpose of providing the Service (including interoperation of the Service with any linked Third Party Applications) and any applicable Professional Services in accordance with this Agreement. Customer has all the rights or permissions (including, but not limited to, permissions from any Third Party Application providers) necessary to grant ACCENGAGE the rights in the Customer Data under this Agreement.
3.4. Aggregated Usage Data. ACCENGAGE aggregates and compiles de-identified Customer Data with de-identified data from ACCENGAGE’s other customers (“Aggregated Usage Data”). Customer agrees that ACCENGAGE may use the Aggregated Usage Data to analyze, improve, develop, support and operate the Service, and to prepare and distribute general benchmarking and industry reports derived from Aggregated Usage Data as part of the Service and publish on ACCENGAGE’s blogs and websites. For clarity, this Section 3.4 does not give ACCENGAGE the right to use the Aggregated Usage Data to identify an individual, an End User or Customer as the source of any Aggregated Usage Data, or permit ACCENGAGE to sell or disclose the raw data included in the Aggregated Usage Data to any third party.
3.5. Feedback. Providing any suggestions, enhancement requests, recommendations, corrections or other feedback (collectively, “feedback”) is strictly voluntary. If Customer provides any feedback to ACCENGAGE, orally or in writing, Customer hereby grants to ACCENGAGE a worldwide, perpetual, irrevocable, transferable, sub-licensable, royalty-free license to use and incorporate into the Service and/or Professional Services any feedback relating to the Service and/or Professional Services.
4. LIMITATION OF LIABILITY.
4.1. Limitation of Liability. ACCENGAGE’s AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL EXCEED THE AMOUNT PAID BY CUSTOMER HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT. THE ABOVE LIMITATIONS WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY.
4.2. Exclusion of Consequential and Related Damages. OTHER THAN INDEMNIFICATION OBLIGATIONS, IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR REVENUE, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION OF LIABILITY WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW IN THE APPLICABLE STATE OR JURISDICTION.