as of September 5, 2018
THESE GENERAL TERMS OF SERVICE (the « Terms ») are a legal and binding “Agreement” between Harvestr SAS, a French corporation (« Harvestr » or « We » or « Service Provider ») and you, or if you represent an employer or client, then the employer or client (« You » or « Client »), governing your use of Harvestr’s https://harvestr.io website and all other related services that Harvestr provides (collectively the « Services »).
Harvestr reserves all rights to change or update these Terms at any moment and at its sole discretion, by posting on its Website or by providing any other notice, if possible at least 30 days before its entry into effect, and your rights under these Terms will be subject to the most current version posted on the Website and all other related services that Harvestr provides (collectively the « Services »).
PLEASE CAREFULLY READ THESE TERMS. BY SUBSCRIBING OR BY ACCESSING OR USING THE WEBSITE OR THE SERVICES, YOU AGREE THAT YOU HAVE READ AND AGREE, WITHOUT RESERVATIONS, TO BE BOUND BY THE LATEST VERSION OF THE AGREEMENT BEING THE FOLLOWING DOCUMENTS, LISTED BY ORDER OF PRIORITY:
- Specific Terms (defined below in article 1), if any;
- These Terms;
The Services are exclusively reserved for a professional use and are not available to minors under the age of 18.
Article 1. Definitions
Each capitalized term herein shall have the meaning given below unless otherwise expressly stated.
« Assistance Services » means any consulting services, development, configuration and settings assistance provided by Service Provider in order to allow Client to access and use the Service, including integration of an API into its own website or implementation of an « SMTP-IN » protocol for email transfers. Assistance Services include Consulting Services, On-boarding and training services, as well as all related services.
« Data » means Client’s electronic data, whether or not personal data, which are collected, managed, processed and/or shared by Client and Service Provider, and which may be intended for third parties, through the Service access and use rights.
« Service » means the Harvestr externalized application solution that is hosted on the servers and/or cloud that Service Provider designates and that Client may execute remotely.
The Service offers various features, including, but not limited to, managing customer feedback in the form of messages coming from multiple channels. Service Provider expressly reserves the right, at any time during the term of the Agreement, to adapt, arrange and/or modify any of the components granting access and use rights to the Service and the associated documentation, provided that the maintenance and support commitments are complied with for these operations. Similarly, Harvestr may, at any time, discontinue providing a platform deemed undesirable and/or obsolete and migrate services to a new infrastructure; in which case, Harvestr will endeavor to inform You as early as possible and invite You to migrate your account to the new infrastructure.
« Intellectual Property Right » means all industrial property and copyrights including patents, trademarks, designs and models, copyrights (audiovisual effects, graphic interfaces, preparatory design material, software and source code, specifications and ancillary documentation).
« Specific Terms » means all specific terms and conditions mutually agreed with the Client stating in particular the financial and technical elements specified in quotation.
« Website » means the web pages associated with the technological features of the Service that can be accessed by and configured for and/or by Client, especially the “Admin” interface, in accordance with the Agreement.
Article 2. Support and Service Levels
2.1 We shall use reasonable efforts, in accordance with customary state of the art principles, to ensure that communication between your users and You are properly routed.
You may also subscribe to additional recommended services in order to improve the Service. Such additional services shall be invoiced separately and shall be provided only after your prior acceptance of a quotation and are as referenced in the Specific Terms.
2.2 Support and Service Levels
You shall be responsible for appointing an administrator (the « Administrator »), who shall be in charge of collecting information and assistance requests from your users and for trying to respond to them.
We shall provide second level support for the Service (« Support »), consisting of (i) responding to the Administrator’s requests for information and support in connection with use of the Service, or (ii) resolving anomalies arising from use of the Service that the Administrator has not been able to fix despite its best first level support efforts.
The Administrator is to create a Support ticket by sending a request to: [email protected] including as much detail as possible relating to the request for Support, it being agreed that only the Administrator may contact/access the Support service.
Article 3. Use of the Services
3.1 Use of the Services
You shall not interfere with or disrupt operation of the Service and shall comply with the Agreement for access to and use of this service.
When You use the Harvestr API, You shall be responsible for your usage of the Harvestr platform and shall limit your API calls to a reasonable volume. Harvestr reserves the right, at its sole discretion, to take any necessary action to address any improper use.
You subscribe to the Services in your name and on your behalf, and You are not entitled to send via our Services promotional emails for a third-party, nor to assign the use of all or part of the Services to your own customers, even for free.
You shall keep confidential and secure all credentials, User IDs and passwords associated with your account, and to immediately notify Us of any unauthorized use of your account, or of any theft or loss of credentials allowing access to the account. Each account is personal and can only be accessed and used by You or the users duly authorized by You. You recognize and acknowledge that You may be liable for any unlawful, wrongful or fraudulent use of the account, and You shall indemnify and hold Us harmless against any action or claim arising from such a use. We reserve the right to request proof of your identity or authority before granting access to your account.
You shall be solely and wholly liable (i) for any Data, information or content, in particular the content of discussion sent by You or your users through the Service, including if such content is provided by a third party, such as a bot (hereinafter collectively referred to as « Content »), and (ii) for the Content’s compliance with the regulations in force in accordance with article 4 below.
You acknowledge and warrant that the Content, whether in whole or in part, shall in no event:
- infringe, misappropriate or violate any right, especially any Intellectual Property Right, of any third party whatsoever;
- contain any virus or program designed to cause damage, intercept or misappropriate any system or Data or personal data in a fraudulent manner;
- contain any unlawful, bullying, harassing, libelous, abusive, threatening, harmful, vulgar, obscene or otherwise objectionable material of any kind or nature or any material that encourages conduct that could constitute a criminal offense, give rise to civil liability or otherwise violate any applicable laws or regulations ;
- contain any sensitive personal data, including social security number, individually identifiable health or health insurance information, bank account information or credit card information; or,
- be false, misleading or inaccurate.
You acknowledge that We have the right, but not the obligation, to monitor the Service and any Data submitted to the Service. To comply with legal obligations in this respect, We may take any actions (including removing Content or denying routing of certain Data and emails) We reasonably believe are necessary to prevent unlawful activity in connection with the Service.
You expressly acknowledge and agree that Harvestr shall not be liable for any loss or destruction of the Content, including the Data, and that You shall be responsible for ensuring that You have proper backups thereof.
Article 4. Compliance with the Law
You (i) shall comply with all laws and regulations in force that are applicable in any country from which You access the Website and/or use the Service, as well as in any country to which You send emails, and (ii) shall indemnify and hold Us harmless from any action brought against Us, judgment entered against Us or loss We may sustain due to Your non-compliance with applicable laws and regulations.
Furthermore, You agree to reimburse Us for any action or formality We may be required to carry out to comply with a legal demand or request from an administrative or judicial authority in relation to your use of the Service.
In the event You become aware of a violation by any third party of any provision of these Terms or of any laws or regulations and, in particular, if You become aware of a security breach by a third party or discover a security breach, You shall immediately notify Us by any means, including by sending an email to [email protected]
Article 5. Payment obligations
5.1 Payment terms
For Clients that purchase a subscription to use our Services, fees are specified through the Services interface or in the Order Form(s) — and must be paid in advance. Payment obligations are non-cancelable and, except as expressly stated in the Agreement, fees paid are non-refundable. For clarity, in the event Client downgrades any subscriptions from a paid plan to a free plan, Client will remain responsible for any unpaid fees under the paid plan, and Services under the paid plan will be deemed fully performed and delivered upon expiration of the initial paid plan subscription term. If we agree to invoice Client by email, full payment must be received within thirty (30) days from the invoice date. Fees are stated exclusive of any taxes, levies, duties, or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction (collectively, “Taxes”). Client will be responsible for paying all Taxes associated with its purchases, except for those taxes based on our net income.
5.2 Billing policies
If you elect to purchase a subscription to use our Services, or certain other paid aspects of the Services, Client agrees to the pricing communicated to you by us. We may add new services for additional fees and charges, or add or amend fees and charges for existing services, at any time in our sole discretion, by giving to the Client at least 60 days’ written notice, such increase to take effect at the beginning of the next billing cycle. If the Client is unhappy with the increase, the Client may give notice to terminate the Agreement, by giving at least 30 days’ written notice to us, such notice to expire no later than the end of the then-current billing cycle. The fees will not increase during the notice period; otherwise, any change to such pricing shall become effective in the billing cycle following notice of such change as provided under the Agreement.
5.3 Payment information
If any of your account, order, or payment method information changes, you agree to promptly update this information, so that we or our service provider(s) may complete your transactions and contact you as needed. We are not liable for any unauthorized use of your credit card, debit card, or other payment method by a third-party in connection with your use of the Services or your subscription.
Article 6. Term and Termination
6.1 Agreement term
6.3 Termination for Cause
6.4 Termination Without Cause
6.5 Effect of Termination
Upon any termination for cause by Client, we will refund Client any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. Upon any termination for cause by us, Client will pay any unpaid fees covering the remainder of the term of those subscriptions after the effective date of termination. In no event will any termination relieve Client of the obligation to pay any fees payable to us for the period prior to the effective date of termination.
Article 7. Intellectual Property – Access and Use Rights
The service name Harvestr and all trademarks referenced on the Website, without limitation, are among the registered trademarks of Service Provider. You are not allowed to use any such trademarks without Service Provider’s express written agreement. All Website content, including graphics, logos, page headers, icons, and service names are the property of Service Provider and its affiliates. Other trademarks that appear on the Website are the property of their respective owners, who may or may not be affiliated with, connected to, or sponsored by Service Provider.
All elements on the site, such as graphic elements (including graphical interface), logos, headers, icons, service names,literary content, computer programs, etc. are protected by copyright laws, and remain the full property of their authors. You are not allowed to use the content or design of the site without Service Provider’s express written agreement. You may not use, copy, modify, create or distribute a derivative work. Concerning the computer programs used, You also cannot reverse engineer,decompile or otherwise attempt to extract the source code of our platform. Any activity that infringes terms of the Agreement violates copyright law and will be prosecuted according to the current applicable laws.
7.3 Right of Access and Use
Subject to full payment of all fees when due for any paid plans, Harvestr authorises/grants You a limited, non-exclusive, non-transferable, personal and temporary right to access and use the Service.This grant of rights shall not be deemed an assignment of any intellectual property rights.
7.4 Exclusive rights
Harvestr has the exclusive right to intervene to adapt, arrange and/or modify any of the components of the Service and in particular, to correct any errors. Harvestr remains the owner of all intellectual property rights, protecting, where appropriate, the works and services performed by Us in connection with our Services, as well as all associated documentation, but also all copies of such works and services, their derivatives, modifications and enhancements.
Article 8. Warranties
Harvestr makes all reasonable efforts to deliver a functional Service and substantially compliant with its documentation, but does not guarantee an error or “bug” free service. If You notice a non-compliance issue, You must notify Harvestr as soon as possible and Harvestr undertakes to make every reasonable effort to remedy the non-compliance issue,as this is Your only recourse.
Harvestr also ensures that Support Services will be provided, where appropriate, according to the description given in the Specific Terms signed by You, where applicable, and proper codes of practice, as the Service Provider is only bound by an obligation of means in this instance.
You declare, warrant and agree, in Harvestr’s favor, that: (1) You have the right and authority to subscribe and use the Services, and accept these Terms, and if You accept the Agreement on behalf of a corporation or other entity, to link that company or other entity hereunder; (2) You have the right and executing authority of your obligations under these Terms; and, (3) all Data, information or content that You provide to Harvestr in the context of your access to the Website and use of the Services is accurate and up-to-date.
Furthermore, You acknowledge that Harvestr does not control the transfer of Data via the internet, and cannot be held responsible for delays or delivery problems arising from internet or other outside connection issues.
Article 9. Limitation of Liability
The Service, as well as the Website may include links to other websites or other Internet sources. In so far as We can not control these sites and external sources, Harvestr cannot be held responsible for the availability of such external websites or sources, and may not be held liable in any way for the content, advertising, products, services or other materials on or available from such external websites or sources. Harvestr provides links only as a convenience, and such inclusion of any link does not imply that We endorse the linked websites or any part of their content. In addition, Harvestr cannot be held responsible for the behavior or actions of other users, nor for any proven or alleged damage or loss subsequent to or in connection with access to, use of or the fact of having relied upon the content, products or services available on such external sites or sources.
Harvestr will be freed from the performance of Services, following an event of Force Majeure, as defined in article 11.5 of these Terms.
Furthermore, for maintenance reasons, Harvestr may suspend temporarily access to the Services; in such cases, Harvestr will endeavor to notify You and to keep the length of the interruption to a minimum.
In any event, Harvestr (including its third party suppliers, employees or representatives) may not, under any circumstances, be liable for indirect or consequential damages of any kind, including and without limitation, loss of revenue, profits, chance, business interruption, or Data loss, even if the parties were informed of the possibility of such damages.
Moreover, as to any indirect Harvestr subscriber, in no event shall Harvestr be liable for any End User, in particular in the event of temporary or permanent suspension of the Services due to non respect of the Harvestr Sending Policy by Yourself or the End User.
In all cases, Harvestr’s total liability is limited, all damage combined, to the amount paid by You to Harvestr, if any, for use of the Website and Services during the twelve (12) months preceding the date on which the damage occurred. This limitation does not apply to damage due to bodily injury (including death) or to willful misconduct or gross negligence.
You acknowledge that You have subscribed to the Services with knowledge of (i) the risks related to them, and (ii) the level of risk accepted by You. The prices applicable have been agreed upon inconsideration of this article, which is integral to the economic balance of the Agreement.
Article 10. Confidentiality
Service Provider and You undertake to treat as confidential, and to not reproduce or disclose, other than for the sole purposes of performing the Agreement, the information and documents exchanged between them as well as any disclosures obtained during this Agreement.
Both Parties shall also oblige all contracting parties, subcontractors, client or any third party to maintain confidentiality with the same reasonable care standard as its own confidential information.
Both Parties acknowledge that any breach of its obligations with respect to confidential information may cause the other party irreparable injury for which there are inadequate remedies at law, and that the injured party shall be entitled to seek equitable relief in addition to all other remedies available to it. Client shall not disclose to a third party the results of any performance tests conducted on the Service, without the prior written consent of Service Provider.
Excluded from the obligation to maintain confidentiality is information that is generally available to the public or whose disclosure is required for legal reasons, or due to a judicial or administrative ruling.
Article 11. Miscellaneous
11.1 Transfer of the Agreement – Change of Control
For the avoidance of doubt, it is hereby reiterated that Client has a personal, temporary, non-transferable and non-exclusive right to access and use the Service.
Under these conditions, it is expressly agreed that Client shall not transfer the Agreement or any right derived from the access and use of the Service to a third party, whether by a contribution,assignment, concession, merger, demerger, loan or otherwise, including without consideration, or within the group to which Client belongs, without Service Provider’s prior written agreement.
Service Provider reserves the right to use subcontractor(s) of its choice to provide the services in connection with the Services, and shall remain liable to Client for the performance thereof in accordance with the present Terms and subject to the reservations stipulated in the Agreement.
11.3 Entire Agreement
These Terms, including the Operational Policies along with any purchase order and/or special conditions, constitute the entirety of the commitments between You and us. It establishes all of the Parties’ rights and obligations and supersedes all prior oral or written commitments that directly or indirectly concern the subject matter of the agreement between us. This Agreement binding us may only be modified by a written amendment which is signed and designated as such by both Parties (You and us).
If any one of the provisions of the Agreement is deemed void under any legal principle, law or regulation, or is invalidated by a court decision, it shall be severed from the Agreement, but the other provisions of the Agreement shall remain in full force and effect.
11.5 Force Majeure
Harvestr shall not be responsible for any default or delay due to extraordinary events beyond its control including,without limitation, strikes, lock-outs, shutdown of internet connections by Internet provider, cyber-attacks on the Website (« Force Majeure »).
If a Force Majeure event occurs, this Agreement shall be automatically suspended during the time the Force Majeure event continues, and neither Party shall be liable to the other for non-performance or delay in the performance of required obligation(s) due to the Force Majeure event, provided the non-performing Party gives prompt written notice of its inability to perform specified obligation(s) due to the event and uses reasonable efforts to resume its performance of its obligation(s) as soon as possible. It is agreed that the other Party may, during the time the Force Majeure event continues, similarly suspend performance of its obligations until such time as the non-performing Party resumes performance of its obligation(s).The Parties shall meet in order to jointly determine the conditions for resuming performance of the Agreement as soon as possible. If a Force Majeure event continues for more than a period of sixty (60) days, the Agreement may be terminated by either Party, by giving notice by certified mail, return receipt requested, effective immediately, if the impacted obligations are material obligations under the Agreement. Notwithstanding the foregoing, in no event shall a Force Majeure event.
11.6 Governing Law – Jurisdiction
These Terms are subject to French law. Failing amicable settlement, any difficulties related to their interpretation or validation, and any dispute between us will be the exclusive jurisdiction of the Paris courts, notwithstanding multiple defendants or third party claim.
5 avenue du Général De Gaulle 94160 Saint-Mandé, France
RCS: 839 239 704 R.C.S. Créteil
VAT: FR 25 839239704
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