Please read carefully these Terms of Services. By agreeing to the Terms and/or using the Zest application (“software”), you acknowledge to have read this agreement, understand it and agree to be bound by it. This Agreement defines the terms and conditions under which ZestMeUp SAS (“ZestMeUp” or “we”) will deliver the Service (as defined below at Section 3).
You are given the possibility of creating your user account online (“Account”) and thus becoming a client of the Service (“Client” or “you”). A Client may only be a company or any other type of legal entity.
Accounts created by robots or automatic methods are totally forbidden. The Client must provide complete identity and a valid e-mail address as well as all mandatory information to enable the Account’s creation. The Client has to create as many user names as Users (as defined below at Section 2.1). Each User will receive a user name and a password. A user name and password are private and can only be used by one User.
The Client (not the Users) is the only co-contracting party of ZestMeUp. The Client is responsible for all payments due to ZestMeUp under this Agreement, for complying with this Agreement and for the use of the Service by themselves or by others such as the Users.
2.1 You must accept these ToS in order to use the Service (as defined below at Section 3) and have the Users accept the terms and conditions of use of the Service set forth herein before they use the Service.
The ToS are applicable to all type of users, including (a) those who initially set up the Account (“Primary Owners”); (b) those who manage and run the solution for the Client (“Administrators”) (Primary Owners and Administrators are collectively referred to as “Administrative Users”), and (c) all other type of users (employees, managers, etc.) who are invited to join the Account or have been added as users of the Account by an Administrator (these users and Administrative Users are collectively referred to as “Users”).
These ToS describe both your rights and your obligations for using the Service. ZestMeUp only provides its Service (as defined below at Section 3) to you under this ToS.
2.2 At any point of time, ZestMeUp may change these ToS. If we make a material change to the ToS, we will provide you with reasonable notice prior to the changes either by emailing or by posting a notice on the Site (as defined below at Section 3). You can review the most current version of the ToS at any time by visiting this page. The revised ToS will become effective on the date set forth in our notice, and if you use the Service after that date, your use will constitute acceptance of the revised ToS. If any change to this ToS is not acceptable to you, your only remedy is to cancel your account and stop using the Services, which you may do by informing us through email or mail and we will process to delete your account.
2.3 The total number of Users is limited to the maximum number permitted for the Account. You are responsible for maintaining the confidentiality of your login, password and Account, and for all activities that occur under your login or Account. Each User is responsible for maintaining the confidentiality of their user name and password.
The “Service” means:
• ZestMeUp’s real-time application and web-based platform, enabling to share mood, feedbacks (anonymous or not), ideas (anonymous or not) and to ask for help, also to share key values around work with the Client (anonymously or not) and to analyze the efficiency of the User workday.
All communications, messaging, archiving and search services, and related systems and technologies, as well as the website http://zestmeup.com (the “Site”), are part of the Service.
• and all software (including the Software, as defined below at Section 4.2), applications, data, reports, text, images, and other content made available by or on behalf of ZestMeUp through any of the foregoing.
The Service does not include Your Data (we defined your Data as all the information that has been fulfilled non anonymously in the application by your users, your organizational structure and all the global reports you can have access to) or any software application or service that is provided by you or a third party, which you use in connection with the Service, whether or not ZestMeUp designates them as “official integrations” (each a “Non-Zest Product”).
Any modifications and new features added to the Service are also subject to this ToS. ZestMeUp reserves the right to modify or discontinue the Service (or any Service plan) or any feature or functionality thereof at any time without notice to you. All rights, title and interest in and to the Service and its components (including all intellectual property rights) will remain with and belong exclusively to ZestMeUp.
3.1 ZestMeUp offers the possibility to the Users to post or exchange content anonymously or not. At a company level, the data will be treated collectively. HR, managers or administrators of the Client will be able to access some reports and view collective results but privacy of anonymous posts, comments, feedbacks is guaranteed to the Users who choose anonymity. The Client may take some improvement decisions based on this data. However, ZestMeUp will not be responsible for any decisions made by the Client with the data that is collected through the Service, nor for any change made within the Client’s organization.
3.2 ZestMeUp makes available to the Client an option called “emergency call” in order to prevent any difficult situation at work where an employee feels in a very difficult working situation or sends an alert for a colleague who seems to feel in a very difficult working situation (including but not limited to burn-out situation, harassment, discrimination, incivility, ethical problems, etc.). However, ZestMeUp will not be responsible for the lack of appropriate treatment made by the Client after receiving this alert. We recommend to the Client to take quick and appropriate measures following the receipt of this type of alerts.
3.3 ZestMeUp reserves the right to use the Client’s name as a reference for marketing or promotional purposes on the Site and in other communications with potential ZestMeUp customers. The Client may also use the name of our company as an example of one of its live solutions.
4.1 You may access and use the Service only for lawful, authorized purposes and you shall not misuse the Service in any manner (as determined by ZestMeUp in its sole discretion). See Section 5 (User Conduct) for specific provisions outlining prohibited uses of the Service. Administrative Users shall be responsible for all actions taken by Users. You shall promptly notify ZestMeUp if you learn of a security breach related to the Service.
4.2 Any software that may be made available by or on behalf of ZestMeUp in connection with the Service, including ZestMeUp’s mobile and desktop applications, (“Software”) contains proprietary and confidential information that is protected by applicable intellectual property and other laws. Subject to the terms and conditions of this ToS, ZestMeUp only grants you a personal, non-sub licensable and non-exclusive license to use the object code of any Software solely in connection with the Service. Any rights not expressly granted herein are reserved.
All content posted or otherwise submitted via the Site by Users (“Content”) is the sole responsibility of the Account holder from which such Content originates. You acknowledge and agree that you, and not ZestMeUp, are entirely responsible for all Content that the Users post, or otherwise submit via the Site. ZestMeUp does not control the Content that is submitted via he Site and, as such, does not guarantee the accuracy, integrity or quality of such Content. You understand that by using the Site you may be exposed to Content that is offensive, indecent or objectionable.
As a condition of use, you promise not to use the Service for any purpose that is unlawful or prohibited by these ToS, or any other purpose not reasonably intended by ZestMeUp. By way of example, and not as a limitation, you agree not to use the Services:
1. To abuse, harass, threaten, impersonate or intimidate any person;
2. To post or transmit, or cause to be posted or transmitted, any Content that is libelous, defamatory, obscene, pornographic, abusive, offensive, profane, or that infringes any copyright or other right of any person;
3. For any purpose (including posting or viewing Content) that is not permitted under the laws of the jurisdiction where you use the Service;
4. To post or transmit, or cause to be posted or transmitted, any communication or solicitation designed or intended to obtain password, account, or private information from any ZestMeUp user;
5. To create or transmit unwanted spam to any person or any URL;
6. To create multiple accounts for the purpose of enhancing volunteering and/or donation information;
7. To post copyrighted Content which doesn’t belong to you, except where authorized by applicable law;
8. With the exception of accessing RSS feeds, you will not use any robot, spider, scraper or other automated means to access the Site for any purpose without our express written permission. Additionally, you agree that you will not: (i) take any action that imposes, or may impose in our sole discretion an unreasonable or disproportionately large load on our infrastructure; (ii) interfere or attempt to interfere with the proper working of the Site or any activities conducted on the Site; or (iii) bypass any measures we may use to prevent or restrict access to the Site;
9. To artificially inﬂate or alter vote counts, blog counts, comments, or any other Service or for the purpose of giving or receiving money or other compensation in exchange for votes, or for participating in any other organized effort that in any way artificially alters the results of Service;
10. To advertise to, or solicit, any user to buy or sell any products or services, or to use any information obtained from the Service in order to contact, advertise to, solicit, or sell to any user without their prior explicit consent;
11. To promote or sell Content of another person;
12. To sell or otherwise transfer your profile.
To report a suspected abuse of the Site and/or a breach of the ToS, please send written notice to Zest at firstname.lastname@example.org.
You are solely responsible for your interactions with other users of the Site. Zest reserves the right, but has no obligation, to monitor disputes between you and other users.
6.1 This ToS will remain in full effect unless and until the Account or this ToS is terminated as described herein. Service plans that are paid monthly will automatically renew for additional 1-month periods of time, and Service plans that are paid annually will automatically renew for additional 1-year periods of time. The Client has the right to deactivate the Account at any time by sending us an email at email@example.com. Only the Primary Owner or Administrator may deactivate and/or delete the Account.
6.2 We reserve the right to deactivate and/or delete the Account (or the access privileges of any User) and terminate this TOS at any time for any reason, or no reason, with or without notice. Without limiting the foregoing, ZestMeUp may publish policies whereby we may delete accounts for prolonged inactivity. Upon any termination of this ToS, we will have no obligation to maintain or provide Your Data. If the Account is deleted, we will delete or destroy all copies of Your Data in our possession or control, in a reasonably expedient way, unless legally prohibited.
6.4 All accrued rights to payment and the terms of Sections 7 through 16 shall survive termination of this ToS.
7.1 To the extent the Client uses a Service plan that is made available for a fee, the Client will be required to select a payment plan and provide ZestMeUp with accurate information regarding its credit card or other payment instrument. The Client will promptly update its account information with any changes in its payment information. The Client agrees to pay ZestMeUp in accordance with the terms of payment set forth on the Site (available at www.zest.com/pricing) and with this ToS, and authorizes ZestMeUp to bill its payment instrument in advance on a periodic basis in accordance with such terms.
7.2 If the Client disputes any charges, it must let ZestMeUp know within sixty (60) days after the date of issuance of the contested invoice. All amounts paid are non-refundable and we reserve the right to change our prices in the future. If we increase our prices for your Service plan, we will provide notice of the change on the Site and in email to the Client at least thirty (30) days before the change is to take effect. The Client’s continued use of the Service after the price change goes into effect constitutes its agreement to pay the changed amount.
7.3 Payment of the invoices is due within thirty (30) days from the date of their issuance.
7.4 Any late payment of an invoice shall result, as of right, without prior formal notice and without prejudice to any damages that may be claimed in court, in the payment by the Client to ZestMeUp (i) of late fees calculated on the basis of the interest rate applied by the European Central Bank in the course of its most recent refinancing operation increased by 10 percentage points and (ii) of a compensation for the recovery costs incurred by ZestMeUp, which may not be less than the lump sump indemnity specified by Article L. 441-6 I 12° of the French Commercial Code and its implementing decree (i.e. 40 euros). Should the recovery costs amount to more than this lump sum indemnity, ZestMeUp will be entitled to a complementary indemnity, upon providing written evidence. However, should the Client be subject to bankruptcy proceedings that prohibit the payment of the fees at their due date, ZestMeUp will not be entitled to any indemnity for recovery costs.
The Client and Users will promptly notify ZestMeUp of any infringement or attempted infringement of ZestMeUp’s rights in the Software of which they become aware. The Client and Users will actively cooperate with ZestMeUp in any action that ZestMeUp may undertake to protect any of its rights in connection with the Software.
The Client acknowledges that the Software and all intellectual property rights pertaining to the Software and to the Site are the property of ZestMeUp and that the structure, organization and code of the Software are valuable trade secrets of ZestMeUp. The Client must not export the Software into a country that does not have copyright laws that will protect ZestMeUp’s rights. From the first day of the contract with ZestMeUp, the Client agrees to use reasonable effort to prevent and protect the Software from unauthorized use, reproduction, distribution, or publication. The Client and Users shall not remove or obscure any ZestMeUp copyright or trademark notices.
10.1 The Service may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, or because of other causes beyond our reasonable control, but ZestMeUp shall use reasonable efforts to provide advance notice of any material scheduled service disruption. Further, you understand that Your Data may be transmitted or handled in an unencrypted manner if you choose to use unencrypted gateways to connect to the Service. Additionally, while ZestMeUp takes steps to ensure that information provided to its third party vendors and hosting partners is transmitted using reasonable security measures, it does not guarantee that these transmissions will be encrypted. Accordingly, you acknowledge that you bear sole responsibility for adequate security, protection and backup of Your Data. ZestMeUp will have no liability to you for any unauthorized access or use of any of Your Data, or any corruption, deletion, destruction or loss of any of Your Data.
10.2 THE SERVICE AND ALL RELATED COMPONENTS AND INFORMATION ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND ZESTMEUP EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, TO THE FULLEST EXTENT PERMISSIBLE BY LAW. YOU ACKNOWLEDGE THAT ZESTMEUP DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR VIRUS-FREE, NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICE, AND NO INFORMATION, ADVICE OR SERVICES OBTAINED BY YOU FROM ZESTMEUP OR THROUGH THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS TOS.
ZESTMEUP SHALL NOT BE LIABLE TO THE CLIENT, USERS AND/OR ANY THIRD PARTY (i) FOR ANY INDIRECT DAMAGES, INCLUDING BUT NOT LIMITED TO LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA AND/OR (ii) IN CASE OF A FORCE MAJEURE OR FORTUITOUS EVENT (AS DEFINED BELOW AT SECTION 13).
ZESTMEUP’S LIABILITY FOR DIRECT DAMAGES UNDER THIS AGREEMENT SHALL BE LIMITED TO THE FEES ACTUALLY PAID BY THE CLIENT IN THE SIX (6) MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM OR, IF NO FEES APPLY, TO FIVE HUNDRED EUROS (500€).
THE PROVISIONS OF THIS SECTION ALLOCATE THE RISKS UNDER THIS TOS BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THIS TOS.
IN ANY EVENT, ZESTMEUP’S WARRANTIES AND LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
You may not assign this ToS without the prior written consent of ZestMeUp, except in connection with a merger, re-organization or acquisition of all or a substantial portion of your assets by another company, but only upon a thirty (30)-day prior notice to ZestMeUp.
ZestMeUp may assign or transfer this ToS, in whole or in part, without restriction.
Neither party to this Agreement shall be liable to the other for delays or failures in performance of its obligations arising out of any force majeure or fortuitous event, such as defined by French case law.
Except as expressly provided otherwise in this ToS, dates and times by which a party is required to perform an obligation under this ToS shall be automatically postponed to the extent and for the period of time that such party is prevented from meeting them by reason of a force majeure or fortuitous event, provided the party so prevented promptly notifies the other party of the commencement and nature of such event or cause and the probable consequences thereof.
Except as otherwise set forth herein, all notices under this ToS will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or email; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.
“Confidential Information” means any material, data, or information in whatever form or media of a party to this Agreement that is provided or disclosed to the other, except for any information that is:
• (i) publicly available or later becomes available other than through a breach of this Agreement;
• (ii) known to a party to this Agreement or its employees, agents, or representatives prior to such disclosure or is independently developed by that party or its employees, agents, or representatives subsequent to such disclosure; or
• (iii) is subsequently lawfully obtained by a party to this Agreement or its employees, agents, or representatives from a third party without obligations of confidentiality.
The Client that has received Confidential Information shall exercise the same degree of care and protection with respect to the Confidential Information of ZestMeUp that it exercises with respect to its own Confidential Information and in any event, at least with a diligent and prudent care. The Client shall not directly or indirectly disclose, copy, distribute, republish, or allow any third party to have access to any Confidential Information of ZestMeUp. Notwithstanding the above, either party to this Agreement may disclose Confidential Information if so required by law (including court order or subpoena), provided that such disclosure is notified in time to the other party to permit it to seek confidential treatment of its Confidential Information. The Client shall exercise its best efforts to preserve the confidentiality of the Confidential Information including, without limitation, by cooperating with ZestMeUp to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded the Confidential Information.
ZestMeUp may access, compile, record and/or distribute statistical analyses and reports utilizing aggregated data derived from information and data obtained from the Client and Users, including, but not limited to, stack trace data and reports related thereto, but ZestMeUp will never access, compile, record and/or distribute information or data managed by the Client using the Software, unless at the express request of the Client for technical support purposes.
These ToS are governed by French law, and the parties to this Agreement irrevocably and unconditionally submit to the exclusive jurisdiction of the courts of Paris (France).