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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.
2.3 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:
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”).
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.
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.
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.
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€).
IN ANY EVENT, ZESTMEUP’S WARRANTIES AND LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
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.
“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:
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.