Terms of Service
HEEDIFY proprietary technology platform and solutions are the “Services” which are licensed to Customer to access under the Terms of this Agreement for the purpose of configuring callflow in the Customer’s team communication platform (Microsoft Teams). For clarity, “Users” means the named individuals, the Customer employees or consultants, authorized or assigned by Customer to use or access the Services as provided for herein. Customer is liable for any misuse of the Services and/or breach of this Agreement by its Users. Customer may transfer the rights to a new User, so long as the prior User discontinues all use of the Services and said transfer does not exceed the maximum number of Users authorized. Other limitations, if any, will be documented on the applicable Order Form. The Services are hosted on Microsoft Azure (“AZURE”) and are subject to the Microsoft terms and conditions of service. Except for the limited rights and licenses expressly granted hereunder, no other right, license or option is granted, no other use is permitted, and HEEDIFY owns and retains all rights, title and interests in and to the Services and HEEDIFY documentation.
Third Party Software
The Services may operate or interface with other software products or applications which shall be licensed from such third parties by Customer. The use of such third-party software may be subject to additional or different terms. Customer is responsible for installing, operating and maintaining all necessary rights to use third party software or applications with which the Services interact. HEEDIFY does not guarantee the availability of any third-party products. Additionally, HEEDIFY shall have no liability to Customer for Customer’s failure or inability to do any of the foregoing. Customer agrees to indemnify and hold HEEDIFY harmless from any claims by such third parties which result from Customer’s use of any such third-party software.
Term and Renewal
Unless otherwise documented on the Order Form, the Initial Term is 12 consecutive months from the Start Date on the applicable Order Form. Thereafter, on each (1) year anniversary of such Start Date, this Agreement will renew automatically for successive one (1) year periods unless terminated as provided for herein below. At time of Renewal, Customer may change the number of Users. This Agreement will remain in effect until the Agreement is terminated.
Upon any expiration or termination of this Agreement, Customer’s right to use the Service shall cease. (i) Termination for Convenience: During any Renewal Period, either Party may terminate as provided on the Order Form. (ii)Termination for Cause: Either Party may terminate this Agreement in the event of breach by the other Party which is not cured within 20 days after receipt of Notice stating the nature of the breach.
Fees, Payment and Taxes
Customer shall pay HEEDIFY the all applicable fees for the Service and number of Users as set forth in the applicable Order Form. Payment obligations are non-cancelable, and fees paid are non-refundable. The per User pricing during any automatic Renewal Term will be no more than five percent (5%) higher than that during the immediately prior term for the same number of Users for the same functionality unless HEEDIFY has provided Customer with written notice of a different price increase at least ninety (90) days prior to the commencement of the next Renewal Term or unless the Fees in such prior period were designated on the Order Form as ‘promotional’ or ‘pilot’. Customer agrees and acknowledges that HEEDIFY may, from time to time, add newly engineered additional features or functionalities to the Service for which HEEDIFY may charge an additional fee. Customer shall reimburse HEEDIFY for any sales or use taxes that HEEDIFY is required to collect in connection with Customer’s use of the Services and the provision of services under this Agreement.
‘Confidential Information’ shall include the Services, planned future functionality of the Services, pricing, the Terms and any non-public information, data or know-how, any proprietary data and any other information disclosed by one party to the other in writing and marked “confidential” or disclosed orally and, within five business days, reduced to writing and marked “confidential”. With respect to Confidential Information, the receiving Party shall (i) use it solely for the purposes specifically provided in this Agreement; and (ii) only disclose such on a ‘need to know’ basis to employees, consultants, affiliates, agents or subcontractors who are bound by nondisclosure agreements at least as strict as this Agreement and provided that such parties are not direct competitors of the disclosing Party. Any Confidential Information disclosed by either Party shall remain confidential for a period of four (4) years from the date of last disclosure or in perpetuity if the Confidential Information constitutes a trade secret under applicable law. The receiving Party is liable for any misuse of Confidential Information by its third parties including its Users, agents, subcontractors, consultants and affiliates. The foregoing obligations do not apply to information that (a) was rightfully in the possession of, or was known by, the receiving Party prior to its receipt from the disclosing Party, free of any obligation of confidence; (b) is or becomes generally known to the public without violation of this Agreement; (c) is obtained by the receiving Party from a third party, without an obligation to keep such information confidential; or (d) is independently developed by the receiving Party without use of or reference to the Confidential Information of the disclosing Party. In the event the receiving Party is required to disclose Confidential Information pursuant to a judicial or governmental order, or valid subpoena, and if such order or subpoena allows, such Party will promptly notify the other Party in writing. In the event of any breach or threatened breach of Confidentiality, Customer agrees that HEEDIFY will suffer irreparable damage for which it will have no adequate remedy at law. Accordingly, in addition to any other remedy, HEEDIFY shall be entitled to seek injunctive and other equitable remedies to prevent or restrain such breach or threatened breach, without the necessity of proving actual damages or posting any bond.
THE SERVICE AND ONLINE HEEDIFY DOCUMENTATION ARE PROVIDED “AS IS” WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND. NEITHER HEEDIFY NOR ITS SUPPLIERS WARRANT THAT THE SERVICE WILL FUNCTION IN ANY ENVIRONMENT OR BE COMPATIBLE WITH ANY THIRD-PARTY APPLICATION OR THAT HEEDIFY SERVICES WILL BE ERROR-FREE, BUG FREE, UNINTERRUPTED OR OTHERWISE MEET CUSTOMER’S BUSINESS REQUIREMENTS. TO THE FULLEST EXTENT PERMITTED BY LAW, HEEDIFY HEREBY EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, ORAL OR WRITTEN, REGARDING THE SERVICE INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF ACCURACY, CORRECTNESS, RELIABILITY, INTEGRATION, INTEROPERABILITY, TITLE, NON-INFRINGEMENT, QUIET ENJOYMENT, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE. YOU AGREE THAT YOUR USE OF THE SERVICES ARE AT YOUR OWN RISK. Some jurisdictions do not allow the exclusion of certain warranties in certain circumstances. Accordingly, some of the limitations set forth above may not apply.
Limitation of Liability
EXCEPT FOR A BREACH OF HEEDIFY INTELLECTUAL PROPERTY RIGHTS; CUSTOMER’S PAYMENT OBLIGATIONS; BREACH OF CONFIDENTIALITY; OR INDEMNITY OBLIGATIONS, TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL EITHER PARTY, ITS AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS OR LICENSORS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL (INCLUDING LOSS OF USE, DATA, BUSINESS, OR PROFITS) DAMAGES, REGARDLESS OF LEGAL THEORY, WHETHER OR NOT HEEDIFY HAS BEEN WARNED OF THE POSSIBILITY OF SUCH DAMAGES, AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THESE TERMS, HEEDIFY AGGREGATE LIABILITY FOR ALL CLAIMS RELATING TO ANY LOSS OR DAMAGE SUFFERED BY CUSTOMER AND ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT OR CUSTOMER’S USE OF THE SITE AND/OR SERVICES, WILL NOT EXCEED THE GREATER OF $100 OR THE TOTAL AMOUNTS PAID BY CUSTOMER TO HEEDIFY FOR THE PAST TWO MONTHS OF THE SERVICES IN QUESTION. Some states do not allow the types of limitations in this paragraph, so such may not apply. In these states, liability will be limited to the maximum extent permitted by law.
HEEDIFY agrees to defend, hold harmless and indemnify Customer from and against any and all third-party damages and losses arising from any claim, action, suit, or proceeding (“Claim”) asserted against Customer by a third party based on a claim that the Service as used as permitted hereunder, infringes any valid United States patent or copyright of such third party, but only to the extent that Customer’s use of the Service was in accordance with the terms of this Agreement. HEEDIFY’s indemnification obligations are conditioned upon Customer: (a) giving HEEDIFY prompt written notice of any Claim for which Customer is seeking indemnity hereunder, provided, however, that any delay in providing such notice shall not relieve the HEEDIFY of its obligations to the extent HEEDIFY is prejudiced by such delay; (b) HEEDIFY has sole control of the defense of the Claim and will not settle a claim without consent of the Customer, if such settlement involves an admission of guilt or any financial or performance obligations; and (c) Customer provides to HEEDIFY, at HEEDIFY’s request and expense, with the assistance, information and authority necessary to perform HEEDIFY’s obligations. If the Service becomes or, in HEEDIFY’ opinion, is likely to become the subject of an injunction, HEEDIFY may, at its option, (i) procure for Customer the right to continue using such Service, (ii) replace or modify such Service so that it becomes non-infringing without substantially compromising its functionality, or, if (i) and (ii) are not reasonably available to HEEDIFY, then (iii) terminate Customer’s license to the allegedly infringing Service and refund any pre-paid amounts for any unused portion of the term. The foregoing is HEEDIFY sole liability and Customer’s sole remedy for an<m=y infringement by the Service and states the entire liability of HEEDIFY with respect to infringement of patents, copyrights, trade secrets or other intellectual property rights. The foregoing indemnification obligations set forth herein above shall not apply to: (i) Service modified by any party other than HEEDIFY, if the alleged infringement relates to such modification, (ii) Service combined or bundled with any non-HEEDIFY products, processes or materials where the alleged infringement would not have occurred but for the creation of such combination, (iii) the use of a version of the Service other than the version that was current at the time of such use, as long as HEEDIFY shall have made available Customer with such non-infringing version, (iv) Service created to the specifications of Customer when the infringement would not have occurred but for such specifications provided by Customer; or (v) infringement or misappropriation of any proprietary right in which Customer has an interest.
Upon demand by HEEDIFY, Customer agrees to and shall defend, hold harmless and indemnify HEEDIFY, our subsidiaries, affiliates, and licensors and their respective officers, agents, partners and employees, from and against any loss, liability, costs (including reasonable attorneys’ fees), damages, expenses, claims, or demands, made by any third party due to or arising out Customer’s use of the Service in breach of the licensed right, Customer’s content and/or arising from a breach of these Terms.
Neither party shall be responsible for any failure to perform its obligations under this Agreement (other than obligations to pay money) caused by an event beyond its reasonable control, including but not limited to, wars, riots, labor strikes, natural disasters, the infrastructure of the internet, or any law, regulation, ordinance or other act or order of any court, government or governmental agency. Any delays resulting from Customer’s failure to perform or fulfill its responsibilities (such as not having systems ready or failing to provide necessary data) will not affect fees due to HEEDIFY.
HEEDIFY appreciates it when Customer, Users or individuals (each a “Submitter”) in any form or any manner, sends or communicates to HEEDIFY, or post to HEEDIFY forums, comments or suggestions about our Service or website (“Feedback). Should any Submitter choose to make a submittal, HEEDIFY may use or utilize any Feedback without any obligation or any kind to the Submitter. Further, by submitting Feedback to HEEDIFY, Submitter hereby assigns, to HEEDIFY all of their right, title and interest in Feedback. In the event such assignment may not be valid, the Submitter agrees and grants to HEEDIFY a royalty-free, worldwide, perpetual license to use or incorporate into the Service any suggestions, enhancement requests, recommendations or other information provided by the submitter relating to the Service.
This Agreement constitutes the entire agreement between the Parties regarding Customer’s use of the Services. This Agreement may only be modified by a fully executed written amendment signed by the Parties which references this Agreement or the HEEDIFY Order Form. Terms on the Customer’s purchase orders or other ordering documentation or email which purports to modify or supplement this Agreement shall not add to or vary the terms and conditions of this Agreement and are of no force and affect even when signed by HEEDIFY. This Agreement replace and supersedes any prior verbal understanding, written communications or representations made by the Parties regarding the subject matter contained in this Agreement.
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