ACCENGAGE S.A. («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.
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.
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 thirty (30) days 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.