This Subscription Agreement is entered by and between:
Youzer, a French incorporated corporation (SASU), whose registered offices are located at 11 rue de Lourmel, 75015, Paris, and registered on the Paris Trade and Companies Register under number 837 796 614, represented by its Chairman and:
Your company or organization, as identified for this purpose in Your Youzer Account (hereinafter “Client”, “You” or “Your”).
Client and Youzer are sometimes referred to herein individually as a “Party” and together as the “Parties”.
The Parties agree as follows:
When used in this Subscription Agreement with the initial letters capitalized, the following terms have the following meanings:
1.1 Order Form: means any of Youzer’s generated service order forms at Your request, which may detail the number of Associates.
1.2 Listing of Third Party Services: means the area of Your Youzer Account which gives You access to the listing of Third Party Services for which Your Youzer Account can manage Third Party Accounts.
1.3 Associate: means any natural person (for example an employee, a subcontractor, a consultant of Client) who uses any Third Party Account, subscribed by Client from Third Party Services, the management of the said Account being carried out as part of the Services.
1.4 Third Party Account: means any Account subscribed by Client from Third Party Services.
1.5 Youzer Account: means any account created by Client through the Platform.
1.6 Subscription Agreement: means this subscription agreement entered by and between the Parties.
1.7 Documentation: means any written or electronic documentation, including documentation available through the Site.
1.8 Service Data: means electronic data, text, messages, communications or other materials submitted to and stored within a Service by You in connection with Your use of such Service, which may include, without limitation, Personal Data. Service Data are sent at Your request to Services, especially by direct data input into Services, by import through the Services or by collection from Third Party Services to which You have otherwise subscribed.
1.9 Subscription Term: means the period during which You have subscribed to a Service.
1.10 Initial Subscription Term: means the initial period during which You have agreed to subscribe to the applicable Service, this period being by default one (1) month.
1.11 Software: means software provided by Youzer (either by download or access through the Internet) that allows You to use any functionality in connection with the applicable Service.
1.12 Applicable Data Protection Law: means the EU Regulation 2016/679 entitled “On the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation)” and any national law applicable under this Subscription Agreement.
1.13 Platform: means the website accessible at the url address: app.youzer.net.
1.14 Beta Services: means a product, service or functionality provided by Youzer that may be made available to You to try at Your option at no additional charge which is clearly designated as beta, pilot, limited release, non-production, early access, evaluation or by a similar description.
1.15 Service(s): means the services (whether provided on a trial or paid basis) that are ordered by You from Youzer by virtue of a prior acceptance of this Subscription Agreement. Youzer makes available to You the Service from Your Youzer Account, after downloading Software. “Services” as defined in this Subscription Agreement excludes Third Party Services.
1.16 Site: means the website operated by Youzer accessible through the following address: www.youzer.net.
1.17 Third Party Services: means third party products, applications, services, obtained separately by You which You may connect to Services to which You have subscribed under an Order Form entered into under this Subscription Agreement. Third Party Services are listed in the Listing of Third Party Services.
1.18 User: means an individual authorized by Client to use a Service through a Youzer Account having for this purpose an identifier and a password. User can be for example an employee, a supplier, a consultant of Client.
2. PURPOSE OF THE SUBSCRIPTION AGREEMENT AND ENTRY INTO FORCE
2.1 Subject matter. The purpose of this Subscription Agreement is to describe the terms and conditions under which You may purchase and use the Services on a “Software As a Service” basis to enable You to manage Third Party Accounts used by Your Associates.
2.2 Order of precedence. In the event of any inconsistency or conflict between the terms of the Subscription Agreement and the terms of any Order Form, the terms of the applicable Order Form will prevail.
2.3 Entry into force. This Subscription Agreement will enter into force on the date of its acceptance online by Client or on its execution date as applicable (“Effective Date”).
3. ACCESS TO AND USE OF THE SERVICES
3.1 Provision of the Services. Youzer will (a) make the Services and Service Data available to You pursuant to this Subscription Agreement and the applicable Order Form(s); (b) provide You with the applicable standard customer support for the Services at no additional charge, or “Premium” support if purchased, as both detailed on the Site ; (c) use its best efforts to make the Services available 24 hours a day, 7 days a week, except (i) during planned downtime for upgrades and maintenance to the Services; in such event, Youzer will use commercially reasonable efforts to notify You in advance through the Platform (“Planned Downtime”); and (ii) for any unavailability caused by circumstances beyond the reasonable control of Youzer, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem (other than one involving the employees of Youzer), Internet service provider failure or delay, Third Party Services, or acts undertaken by third parties, including without limitation, denial of service attack (“Force Majeure Event”).
3.2 Functionalities. Youzer undertakes to maintain the general Service functionality allowing You to manage Your Third Party Account as subscribed by You for Your Associates, for the duration of Your Subscription Term.
3.3 Usage restrictions. In addition to complying with the other terms, conditions and restrictions set forth below in this Subscription Agreement, You agree not to (a) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time-share or otherwise commercially exploit or make the Services available to any third party, other than authorized Users in furtherance of Your Third Party Account management purposes as expressly permitted by this Subscription Agreement; (b) use the Services to process data on behalf of any third party other than Users ; (c) modify, adapt, or hack the Services or otherwise attempt to gain unauthorized access to the Services or related systems or networks; (d) use the Services in any unlawful manner, including, but not limited to, violation of any person’s privacy rights; (e) use the Services to send unsolicited or unauthorized bulk mail, junk mail, spam, pyramid schemes or other forms of duplicative or unsolicited messages; (f) use the Services to store or transmit files, materials, data, text, audio, video, images or other content that infringes on any person’s intellectual property rights; (g) use the Services in any manner that interferes with or disrupts the integrity or performance of the Services and its components; (h) attempt to decipher, decompile, reverse engineer or otherwise discover the source code of any Software making up the Services; except in cases authorized by the French Intellectual Property Code (i) use the Services to knowingly post, transmit, upload, link to, send or store any content that is unlawful, racist, hateful, abusive, libelous, obscene, or discriminatory; (j) use the Services to store or transmit any “protected health information”, as defined in Applicable Data Protection Law, unless expressly agreed to otherwise in writing by Youzer; (k) use the Services to knowingly post transmit, upload, link to, send or store any viruses, malware, Trojan horses, time bombs, or any other similar harmful software (“Malicious Software”); (l) use or launch any automated system that accesses a Service (i.e., bot) in a manner that sends more request messages to a Service server in a given period of time than a human can reasonably produce in the same period by using a conventional online web browser; or (m) use, or attempt to use the Services in violation of this Subscription Agreement. Without prejudice to any of its other rights, Youzer reserves the right, at its reasonable discretion, to suspend temporarily Your access to and use of a Service if it suspects or detects any Malicious Software connected to Your Youzer Account or relating to Your use of a Service.
3.4 Confidentiality of Youzer Account Login. As between You and Youzer, You are responsible for compliance with the provisions of this Subscription Agreement by Your Users for any and all activities that occur under Your Youzer Account. Without limiting the foregoing, You are solely responsible for ensuring that use of the Services to store and transmit Service Data is compliant with all applicable laws and regulations. You agree and acknowledge that each User will be identified by a unique username and password (“Login”) and that a User Login may only be used by one (1) individual. You will not share a User Login among multiple individuals. You and Your Users are responsible for maintaining the confidentiality of all Login information for Your Account.
3.5 Audit. Youzer reserves the right to periodically verify that Your use of the Services complies with the Subscription Agreement. Should Youzer discover that Your use of a Service is not in compliance with this Subscription Agreement, Youzer reserves the right to charge You, and You hereby agree to pay for the said usage in addition to other remedies available to Youzer.
3.6 Direct competitor. You may not access the Services if You are a direct competitor of Youzer, except with Youzer’s prior written consent. You may not access the Services for competitive purposes.
3.7 Free Trial. If You register for a free trial for a Service, Youzer will make such Services available to You on a trial basis free of charge until the earlier of (a) the end of the free trial period for which You registered to use the applicable
Service(s); (b) the start date of any subscription to such Service purchased by You for such Service(s). Any Service Data You enter into such Services, and any configuration or customizations made to such Services by or for You, during Your free trial, will be permanently lost unless You purchase a subscription on a pay basis for the applicable Services.
3.8 Beta Services. Youzer may possibly make Beta Services available to You at no charge. You may choose to try such Beta Services at Your sole discretion. Beta Services are intended for evaluation purposes and not for production use, and are not supported. Beta Services are not considered “Services” under this Subscription Agreement; however, all restrictions, Youzer’s reservation of rights and Your obligations concerning the Services and use of any Third Party Services will apply equally to Your use of Beta Services. Unless otherwise stated, any Beta Services trial period will expire upon the earlier of one year from the trial start date or on the date that a version of the Beta Services becomes generally available without the applicable Beta Services designation. Youzer may discontinue Beta Services at any time at its sole discretion and will remain free to never make them generally available. Youzer will have no liability for any harm or damage arising out of or in connection with a Beta Service.
4. CONFIDENTIALITY: SECURITY AND PRIVACY
4.1 Definition of Confidential Information: “Confidential Information” means all information disclosed by You to Youzer or by Youzer to You which is in tangible form and labeled “confidential” (or with a similar legend) or is information, regardless of form, which a reasonable person would understand to be confidential given the nature of the information and circumstances of disclosure, including, but not limited to, information relating to Youzer’s security policies and procedures. For purposes of this Subscription Agreement, this Subscription Agreement as well as Service Data will be deemed Confidential Information. Notwithstanding the foregoing, Confidential Information will not include information that (a) was already known to the receiving Party at the time of disclosure by the disclosing Party; (b) was or is obtained by the receiving Party from a third party not known by the receiving Party to be under an obligation of confidentiality with respect to such information; (c) is or becomes generally available to the public other than by violation of this Subscription Agreement or another valid agreement between the Parties; or (d) was or is independently developed by the receiving Party without use of the disclosing Party’s Confidential Information.
4.2 Protection of Confidential Information. Subject to the express permissions of this Subscription Agreement, each Party will protect each other’s Confidential Information from unauthorized use, access or disclosure in the same manner as each protects its own Confidential Information, but with no less than reasonable care. Except as otherwise expressly permitted pursuant to this Subscription Agreement, each Party may use each other’s Confidential Information solely to exercise its respective rights and perform its respective obligations under this Subscription Agreement and shall disclose such Confidential Information (a) solely to the employees and/or non-employee service providers and contractors who have a need to know such Confidential Information and who are bound by terms of confidentiality intended to prevent the misuse of such Confidential Information; (b) as necessary to comply with an order or subpoena of any agency or court of competent jurisdiction; or (c) as reasonably necessary to comply with any applicable law or regulation. The provisions of this “Confidentiality: Security and Privacy” Section will supersede any non-disclosure agreement by and between the Parties and such agreement will have no further force or effect.
4.3 Safeguards for Service Data protection. Youzer will maintain reasonable administrative, physical, and technical safeguards for protection of
the security, confidentiality and integrity of Service Data, as described in the Subscription Agreement and the Documentation.
4.4 Data Protection. The conditions under which Youzer will process on behalf of the Client Personal Data, as included in Service Data, are detailed in the attached Data Processing Agreement.
5. INTELLECTUAL PROPERTY RIGHTS
5.1 Service usage license. Youzer grants You a limited right to access and use the Services for Your internal needs in terms of Third Party Account management, subject to Your compliance with this Subscription Agreement. This license is non-transferrable, non-exclusive and granted worldwide, for the duration of the Subscription Term.
5.2 License on suggestions, enhancement requests, recommendations and other feedback. Youzer will have a fully paid-up, royalty-free, worldwide, transferable, sub-licensable (through multiple layers), assignable, irrevocable and perpetual license to implement, use, modify, commercially exploit, and/or incorporate into the Services or otherwise use any suggestions, enhancement requests, recommendations or other feedback Youzer may receive from You or Your Users.
6. THIRD PARTY SERVICES
6.1 Liability exclusion relating to Third Party Services. When You use Third Party Services, be advised that Your access and use of such Third Party Services are governed solely by the terms and conditions of such Third Party Services, and Youzer does not endorse, is not responsible or liable for, and makes no representations as to any aspect of such Third Party Services, including, without limitation, their content or the manner in which they handle, protect, manage or process data (including Service Data) or any interaction between You and the provider of such Third Party Services. Youzer cannot guarantee the continued availability of such Third Party Service features, and may cease enabling access to them without entitling You to any refund, credit, or other compensation, if, for example and without limitation, the provider of a Third Party Service ceases to make the Third Party Service available for interoperation with the corresponding Service. You irrevocably waive any claim against Youzer with respect to such Third Party Services. Youzer is not liable for any damage or loss caused by or in connection with Your access or use of any such Third Party Services, for example with regards to the privacy or data security policies of such Third Party Services.
6.2 Authorization of communication with Third Party Services. You may be required to register for or log into such Third Party Services on their respective websites. By enabling any Third Party Services, You are expressly permitting Youzer to interact with such Third Party Services and You are permitting Youzer to obtain Service Data from such Third Party Services as necessary to facilitate the management of Your Third Party Account.
7. BILLING, PLAN MODIFICATIONS AND PAYMENTS
7.1 Billing frequency and late payment. Unless otherwise indicated on an Order Form or in an invoice referencing this Subscription Agreement, and subject to the “Taxes” Section hereinafter, all charges associated with Your access to and use of a Service (“Subscription Charges”) are due within thirty (30) days of the invoice date. If You fail to pay Your Subscription Charges or other charges indicated on any Order Form within thirty (30) days of Youzer’s notice to You that payment is due or delinquent, or if You do not update payment information upon fifteen (15) days of Youzer’s request, such breach shall be considered as a material breach and, in addition to other remedies,
Youzer may suspend or terminate access to and use of such Service by You. If You fail to pay Your Subscription Charges or other charges indicated on any Order Form on the due date, these Subscription Charges or other charges may bear interest at the rate of three (3) times the French legal interest rate for this amount per month and an additional fixed amount of 40 euros will automatically be due by You as a lump sum compensation for the recovery costs payable by the creditor in the event of late payment. Your Subscription Charges are calculated based on the number of Your Associates.
7.2 Payment terms. Client acknowledges and agrees that payment can only be made by credit card, wire transfer or direct debit.
7.3 Taxes. Unless otherwise stated, Youzer’s charges do not include any taxes, levies, duties or similar governmental assessments, including value-added, sales, use or withholding taxes assessable by any local, state, provincial or foreign jurisdiction (collectively “Taxes”). You are responsible for paying Taxes, except those assessable against Youzer measured by its net income. Youzer will invoice You for such Taxes if Youzer believes it has a legal obligation to do so and You agree to pay such Taxes if so invoiced.
8. CANCELLATION AND TERMINATION
8.1 Duration and extension of the Subscription Agreement. This Subscription Agreement is entered into for the Initial Subscription Term and will be automatically renewed, except if the Client provides a termination notification in accordance with the terms below.
8.2 Termination by the Client. You may terminate this Subscription Agreement at any time for any reason, including for a material breach, without notice. The Subscription Charges will be due in full for the entire then current month. The Subscription Charges due for the current month on the notification date will not be calculated on a pro rata basis, which the Client acknowledges and agrees to. Termination will take effect following the end of the then current month on the termination notification date.
8.3 Suspension of the Services. Youzer reserves the right to restrict functionality or suspend the Services (or any part thereof), and/or Your Youzer Account within a forty-eight (48) hours-notice if Youzer detects that You have violated the obligations provided under the “Restriction of use”, “Service License” or “Direct competitor” Sections of this Subscription Agreement.
8.4 Termination by Youzer. Youzer may terminate this Subscription Agreement at any time in the event of Client’s material breach of the Client under this Subscription Agreement, provided that Client has been notified such termination within a reasonable period of time. Termination will take effect following the end of the then current month on the termination notification date.
9. REPRESENTATIONS, WARRANTIES AND DISCLAIMERS
9.1 Legal power. Each Party represents that it has validly entered into this Subscription Agreement and has the legal power to do so.
9.2 Warranty. Youzer warrants that during the applicable Subscription Term (a) the applicable Documentation will accurately describe the Services, including the technical and organizational safeguards for protection of the security, confidentiality and integrity of Service Data. Client acknowledges and agrees that the Documentation may change during the Subscription Term.
9.3 Beta Services. The Beta Services are provided on an “as is” and “as available” basis, without any warranties of any kind. The Beta Services are not supported.
9.4 Exclusion of warranty. In the case of Beta Services, and more generally Services, Youzer expressly disclaims, to the maximum extent permitted by law, any and all warranties, whether express or implied, including, but not limited to, any warranties of title, fitness for a particular purpose, and non-infringement.
10. LIMITATION OF LIABILITY
10.1 Excluded damages. Under no circumstances will either Party to this Subscription Agreement be liable to the other Party for any lost profits, lost sales or business, business interruption, loss of goodwill, image or reputational damages incurred by the other Party in connection with this Subscription Agreement, and the Services, regardless of whether such Party has been advised of the possibility of or could have foreseen such damages and that such damages are direct or indirect.
10.2 Liability cap. Each Party’s aggregate liability to the other Party arising out of this Subscription Agreement or the Services, will in no event exceed the amount equal to three (3) years of the Subscription Charges for the Services You have subscribed to. You acknowledge and agree that the essential purpose of this “Liability cap” Section is to allocate the risks under this Subscription Agreement between the Parties and limit potential liability considering the Subscription Charges amount, which would have been substantially higher if Youzer was to assume any further liability other than as set forth herein. Youzer has relied on these limitations in determining whether to provide You with the rights to access and use the Services provided for in this Subscription Agreement.
10.3 Liability cap exclusions. The liability cap stated in the above “Liability cap” Section will not apply in the event of personal injury or death.
11.1 Indemnification by Youzer. Youzer will indemnify and hold You harmless from and against any claim brought by a third party against You by reason of Your use of a Service as permitted hereunder, alleging that such Service infringes a third party’s copyright (an “Copyright Claim”). Youzer shall, at its expense, defend such Copyright Claim and pay damages finally awarded against You in connection therewith, including the reasonable fees and expenses of the attorneys engaged by Youzer for such defense, provided that (a) You promptly notify Youzer of the threat or notice of such Copyright Claim; (b) Youzer will have the sole and exclusive control and authority to select defense attorneys, and defend and/or settle any such Copyright Claim (however, Youzer shall not amicably settle any claim involving the engagement of Your liability or Your acknowledgement of any liability without Your prior written consent); and (c) You fully cooperate with Youzer in connection therewith. If the use of a Service by You has become, or, in Youzer’s opinion, is likely to become, the subject of any such Copyright Claim, Youzer may, at its option and expense, (I) procure for You the right to continue using the Service(s) as set forth hereunder; (II) replace or modify a Service to make it non-infringing; or (III) if options (I) or (II) are not commercially reasonable or practicable as determined by Youzer, terminate Your subscription to the Service(s) and repay You, on a pro-rata basis, any Subscription Charges previously paid to Youzer for the corresponding unused portion of Your Subscription Term for such Service(s). Youzer will have no liability or obligation under this “Copyright Claim” Section if a Copyright Claim is caused in whole or in part by (i) compliance with data or instructions provided by You; (ii) modification of the Service(s) by anyone other than Youzer; or (iii) the combination, operation or
use of the Service(s) with other hardware or software where a Service would not by itself be infringing. The provisions of this “Indemnification by Youzer” Section state the sole, exclusive and entire liability of Youzer to You and constitute Your sole remedy with respect to a Copyright Claim brought by reason of access to or use of a Service by You or Your User.
11.2 Indemnification by the Client. You will indemnify and hold Youzer harmless against any claim against Youzer alleging that the copyright of a third party have been violated in connection with Your access or use of Services (“Copyright Claim”). You must, at Your own expense, defend Youzer against such Copyright Claim and pay damages finally awarded against Youzer, as well as the reasonable fees and expenses of the attorney engaged by You for such defense; provided (a) Youzer promptly notifies You of the threat or notice of such Copyright Claim; (b) You will have the sole and exclusive control and authority to select defense attorneys, and defend and/or settle any such Copyright Claim (however, You will not amicably settle any claim involving the engagement of Youzer’s liability or Youzer’s acknowledgement of any liability without its prior written consent); and (c) Youzer fully cooperates with You in connection therewith.
The provisions of this “Indemnification by the Client” Section define Your sole, exclusive and entire liability to Youzer and define Youzer’s sole remedy for You with respect to Copyright Claim as defined in the “Indemnification by the Client” Section.
12. GENERAL PROVISIONS
12.1 Contract assignment. Each Party hereby expressly consents in advance that the other Party may assign this Subscription Agreement in connection with any merger or change of control of the other Party or the sale of all or substantially all of its assets. Subject to the foregoing restrictions, this Subscription Agreement will be fully binding upon, inure to the benefit of and be enforceable by the Parties and their respective successors and assigns.
12.2 Entire Subscription Agreement. This Subscription Agreement, together with any Order Form(s) constitute the entire agreement and supersede any and all prior agreements between You and Youzer with regards to the subject matter hereof. This Subscription Agreement will apply in lieu of the terms or conditions in any purchase order or other order documentation You or any entity which You represent provides (all such terms or conditions being null and void), and, except as expressly stated herein, there are no other agreements, representations, warranties, or commitments which may be relied upon by either Party with respect to the subject matter hereof.
12.3 Modification of the Subscription Agreement. Youzer may amend this Subscription Agreement, in which case the modified Subscription Agreement will supersede the prior version. Youzer will notify You no less than fifteen (15) days prior to the effective date of any such amendment in order to enable You to terminate the Subscription Agreement, if need be.
12.4 No waiver. Youzer’s failure to enforce at any time any provision of this Subscription Agreement does not constitute a waiver of that provision or of any other provision of this Subscription Agreement.
12.5 Autonomy of provisions. If any provision in this Subscription Agreement is held by a court of a competent jurisdiction to be unenforceable, such provision will be modified by the court and interpreted so as to best accomplish the original provision to the fullest extent permitted by law, and the remaining provisions of this Subscription Agreement will remain in effect.
12.6 Relationship between the Parties. The Parties are independent contractors. This Subscription Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties.
12.7 Notice. The terms “notification”, “notify” or “notifies” when used within this Subscription Agreement will mean a notification made under the conditions defined below. All notices provided by Youzer to You under this Subscription Agreement may be delivered in writing (a) by registered letter with acknowledgement of receipt to the contact mailing address entered in Your Youzer Account; or (b) by email to the email address entered in Your Youzer Account. You must give notice to Youzer in writing by registered letter with acknowledgment of receipt to the mailing address indicated on the Site, together with an email to the address: [email protected] All notices will be deemed to have been given immediately upon delivery by email; or, if delivered by registered letter with acknowledgement of receipt as indicated by the acknowledgement of receipt.
12.8 Business reference. Youzer reserves the right to mention, as a business reference, the existence and the purpose of this Subscription Agreement, by disclosing the Client’s corporate name, and Client agrees to grant Youzer for the Subscription Term the worldwide right to reproduce and communicate to the public any item used to identify commercially the Client (e.g., its figurative, verbal, semi-figurative mark or any copyright protected element) on Youzer’s commercial documents shared with the public including Youzer’s customers and prospects on paper or through an electronic medium, for instance. Client may at any time object to apply this “Business reference” Section provided that it notifies Youzer in writing.
12.9 Governing law. This Subscription Agreement will be governed by the laws of France, without reference to conflict of laws principles. It is specified for all purposes that the Vienna Convention on the International Sale of Goods will not apply to this Subscription Agreement.
12.10 Venue. Any dispute arising from this Subscription Agreement will be resolved by the courts of Paris. You hereby expressly agree to submit to the exclusive jurisdiction of such jurisdiction for the purpose of resolving any dispute relating to this Subscription Agreement or the access to or use of the Services.
12.11 Language. The French version of any document issued by Youzer (including this Subscription Agreement) will prevail over any English version