as of August 28th, 2019
These Terms are made available to you on the Website, and may additionally be provided to you upon request.
These Terms are enforceable vis-à-vis the Client who acknowledges being aware of these Terms and having accepted these Terms before placing any order. The confirmation of an order is deemed to incur full acceptation by the Client of the Terms in force on the date of the order, the record-keeping of which is handled by Mayday.
Any Client is then deemed to have full knowledge and having accepted without any reserve all the provisions of the Terms, that shall apply to any Services rendered by Mayday. These Terms shall prevail over any others contrary provisions or conditions which may be included in the general terms and conditions of purchase or any other document from the Client. Any contrary conditions set forth by the Client shall be unenforceable against Mayday, unless the latter accepts these conditions. Nevertheless, Mayday retains the right to derogate to some provisions of the Terms, depending on the negotiations conducted with the Client, by establishing specific conditions of sale (in particular through the entering into of a service agreement) which shall be approved by the Client.
Mayday 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. Notwithstanding the above, the Terms applicable to the Client for a given order are those available on such date. It is therefore specified that any amendment of the Terms shall not apply to any order placed before such amendment, unless prior approval of the Client.
Mayday recommends to the Client to store and/or print the Terms for a sustainable and safe storage, in order to be in a position to recourse to it throughout the duration of the contract if need be.
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.
By accessing the Website and using the Services, You acknowledge having received all the necessary details required to assess our technical and commercial proposal, and having confirmed that the Services are consistent with your activity needs. You further acknowledge having checked that your IT equipment is secured and up and running for the purpose of accessing the Services and the Website.
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. 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.
« End User » means any user accessing the Website and/or using the Services.
« Service » means the Mayday 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, Mayday may, at any time, discontinue providing a platform deemed undesirable and/or obsolete and migrate services to a new infrastructure; in which case, Mayday 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 (but not limited to) 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 described in the Service Documentation 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 Aditionnal services
We shall use reasonable efforts, in accordance with customary state of the art principles, to ensure that communication between You and your users 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: firstname.lastname@example.org 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 comply with the terms and use restrictions, if any, set out in these present Terms, and in the Operating Policies. You shall be responsible for ensuring that your users also comply with said Terms and use restrictions.
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.
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 undertake to (i) provide upon registration on the Website real, up to date and sincere information, and in particular not to use any wrong name or address or any name and address without due and valid title over it, and (ii) maintain up to date the registration information in order to maintain the above mentioned undertakings. You are responsible for the consequences of false or inaccurate information You have shared with us.
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 (including any assumption of 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;
- be false, misleading or inaccurate; or,
- be in breach with the Operating Policies and more generally with applicable laws (in particular as to personal data protection).
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 Mayday 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 (such as any indemnification we may be liable to pay, including proceedings-related fees) 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@example.com
Article 5. Plans – Financial Terms
We offer various options to our Clients, with or without a fixed commitment period. You can find these options and the relevant pricing on our Website at: https://www.getmayday.co/ The pricing of these plans is available in Euros.
5.1 Paid plans
Paid plans are without any fixed-term commitment. Premium features can also be added to these plans.
Your paid subscription shall be due and payable either on a monthly or yearly basis in advance from the date of your first paid subscription and will be automatically renewed thereafter on the same basis, subject to the full payment in advance of the fees due.
You may at any time terminate Your paid self-service plan. We nevertheless draw your attention to the fact that Mayday shall not reimburse You the unused fees paid for a started month or year, even on a pro rata basis; it is then Your responsibility to anticipate the termination of Your plan to make it effective at the most convenient time.
Payment may be made by credit card, or direct debit. You authorize Mayday to charge the credit card or bank account You provide to Us for any and all costs and amounts that You owe Us for the Services.
5.2 Paid plans Agency
Agency paid plans have a fixed-term commitment (generally set to 12 months), even lower use restriction limits than our other paid plans and offer more custom solutions. Premium features can also be added as well as Assistance Services.
When You subscribe to an Agency paid plan, the financial conditions that are applicable to You (fees, schedule, payment terms and any rebate that may be offered to You) are set forth on the Specific Terms signed by You. Unless otherwise stated, the Minimum Annual Fee is non-cancellable and non-refundable for any reason whatsoever.
Us or Yourself may terminate the plan at the end of each term (anniversary date), by giving prior a three (3) month notice. You will remain responsible to pay all amounts due to Us until the termination effective date. In the absence of such a termination, the plan shall be automatically renewed for the same fixed term, and You shall be invoiced according to the initial schedule payment not including any overage charges.
Service Provider or Yourself may also terminate the plan in advance in the event the other Party materially breaches the Agreement and fails to cure such material breach within thirty (30) calendar days after receipt of a notice of such breach, sent by certified mail, return receipt requested. Notwithstanding the foregoing, termination may be immediate in the event of the following circumstances: in the event of a breach of any laws and regulations ; in the event of a breach or attempted breach of the security of the Website; or, in the event of fraud or attempted fraud in connection with use of the Website or the Service.
5.4 Common provisions for all paid plans
The plan fees do not include the cost of equipment and Internet access enabling use of the Service, the costs of which shall be borne by You.
Client Account Services fees, if any, are specified on the purchase order and/or the special terms. They do not cover, and You agree to separately reimburse Us for all out-of-pocket expenses incurred by Us in connection with the Client Account Services including: (i) travel expenses, including airfare, car rental and travel time exceeding four hours per week; (ii) accommodation expenses, including the cost of hotels; (iii) meal expenses, including breakfast, lunch, and dinner; (iv) translation and/or interpretation services; and, (v) costs of materials. Client Account Services fees shall be invoiced when the purchase order is signed. They are non-cancellable and non-refundable.
The Client expressly acknowledges that any order placed on the Website is an order incurring a payment obligation, requiring the payment of a price against provision of the Services ordered.
Any delay in payment (i) will allow us to recover and without notice late interest, any collections fees and other amounts as allowed by law and (ii) may immediately, after notice, temporarily suspend access to and use of the Service and/or terminate your subscription. All amounts payable are quoted excluding taxes. You shall pay any and all taxes imposed by any government on the amounts payable for the Services, or reimburse Us in the event We have paid such amounts, for which You are personally responsible.
Mayday reserves the right to change the Services fees by notifying You by email with at least a thirty (30) day notice. If You do not accept the new fees as notified to You, You shall cease all use of the Services on or before the last day of the monthly period already paid at the date of the notification and terminate your plan. For fixed term plans, the fees applicable are the ones in force on the date of your order; the new fees will be applicable to You only on the renewal date of your plan.
You agree not to seek Mayday’s liability and not to dispute payment for the sending of Your emails, even in the event any of them are blocked by a third party and do not reach their recipient as You would have desired.
Article 6. Termination
6.1 Right of withdrawal
The Services are reserved exclusively for a professional use and any regulations on consumer or retraction rights are not applicable to the Services. You therefore do not benefit from any withdrawal right.
6.2 Termination and/or deletion of an account upon Mayday’s initiative
Mayday may terminate your Account and the performance of Services at its sole discretion under the following circumstances:
- after You have been notified by Mayday following any breach of laws or regulations or these Terms, including but not limited to: if payment or partial payment of any sum due by You is not received by Mayday; in the event of a payment incident; in the event of a breach or attempted breach of the Website security; or, in the event of fraud or attempted fraud when using the Website.
6.3 Consequences of the termination
Upon expiration or termination of your account for any reason whatsoever, all amounts still owed by You, shall become due and payable immediately. We will not refund any prepaid fees and will charge You the full amount that We would have been entitled to charge for the remaining term.
Article 7. Intellectual Property – Access and Use Rights
The service name Mayday 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 any text, file, picture, photography, video, logo, drawing, software, trademark, visual identity, database, structure of the Website, service names and any other intellectual property item as well as any other data or information (the « Elements ») are the property of Service Provider and its affiliates and are protected by French and international regulations applicable to intellectual property. 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 Website, 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 Website without Service Provider’s express written agreement.
As a consequence, no Element of the Website may be amended, duplicated, copied, sold, transmitted, published, distributed, broadcasted, stored, used, leased or operated by any mean, for free or against consideration, by a Client or by any third party, whatever the mean and support of use recoursed to, known or unknown to date, without the prior approval of Us, the Client being the sole responsible for the unauthorised use or exploitation.
You also cannot, unless expressly agreed by Mayday:
- Modify, reverse engineer, translate, decompile, disassemble, create derivative works based on the Services or otherwise attempt to extract the source code of our platform; or
- Remove any proprietary labels, notices, or marks from the Services; or
- Access the Services in order to (i) build a competitive product or service; or (ii) copy features, ideas, functions or graphics of the Services; or
- Use the Services in a way that:
- Violates the Intellectual Property Rights or any other rights of anyone else;
- Violates any law or regulation;
- Is harmful, deceptive, fraudulent, threatening, harassing, obscene, or otherwise objectionable;
- Attempts, in any manner, to obtain the password, account, or other security information from any other user;
- Violates the security of any computer network, or cracks any passwords or security encryption codes; or
- Runs any form of “spam” on the Services, or any processes that run while You are not logged into the Services, or that otherwise interfere with the proper working of the Services.
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, Mayday 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
Mayday 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. Mayday 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
Mayday 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. In particular, Mayday does not warranty that the Website and the Services will be running without any interruption nor malfunction. You acknowledge that the operation of the Website may be interrupted for maintenance, update or technical improvement, or to amend the content or layout of the Website. We shall do our best efforts to inform the Client ahead of any planned interruption, the Client acknowledging that some interruption may not be planned, in which case Mayday will not be in a position to inform the Client in advance.
If You notice a non-compliance issue, You must notify Mayday as soon as possible and Mayday undertakes to make every reasonable effort to remedy the non-compliance issue, as this is Your only recourse.
Mayday 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 Mayday’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 Mayday in the context of your access to the Website and use of the Services is accurate and up-to-date.
Furthermore, You acknowledge that Mayday 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.
You additionally acknowledge that the Internet does not allow to warranty the absolute safety, availability and integrity of the data circulating through it. In particular, We do not warranty that the Website and the Services will be running without any interruption nor malfunction. In particular, the operation of the Website may be interrupted for maintenance, updated or technical improvement, or to amend the content or layout of the Website.
Article 9. Limitation of Liability
The Service, as well as the Website may include links to other websites or other Internet sources. Such hypertext links are provided only for convenience purposes, in order to simplify the use of the resources available on the Internet, and such inclusion of any link does not imply that We endorse the linked websites or any part of their content. If the Client uses such hypertexts links, it will exit the Website and will then accept to use the third party websites at its own risks and in accordance with the conditions of use governing such websites.
In so far as We cannot control these sites and external sources, Mayday 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. In addition, Mayday 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.
Mayday will be freed from the performance of Services, following an event of Force Majeure, as defined in these Terms.
Furthermore, for maintenance reasons, Mayday may suspend temporarily access to the Services; in such cases, Mayday will endeavor to notify You and to keep the length of the interruption to a minimum.
Mayday’s liability may only be triggered on the basis of facts directly attributable to Us that would cause to the Client a prejudice directly incurred by such facts.
In any event, Mayday (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, prejudice resulting of misuse of the Website by the Client or from any breach of the Client, facts attributable to a third party, or Data loss, even if the parties were informed of the possibility of such damages.
Moreover, as to any indirect Mayday subscriber, in no event shall Mayday 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 Mayday Sending Policy by Yourself or the End User.
In all cases, Mayday’s total liability is limited, all damage combined, to the amount paid by You to Mayday, 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.
Notwithstanding the above, the Client expressly authorizes Mayday to indicate the name and logo of the Client as a commercial reference on any communication support (publication, website, quotation, press release, internal communication, etc.).
Privacy and security are of utmost importance to Mayday and we strive to ensure that our technical and organizational measures in place respect your data protection rights.
Article 12. Miscellaneous
12.1 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.
12.3 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.
12.5 Force Majeure
Mayday 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.
12.6 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.
12.7 Support service – contact
If you have questions, you can email Us at: firstname.lastname@example.org or by mail to: Mayday SAS, Attn: Damien Popote, 8 rue Fallempin 75015 Paris, France.
8 rue Fallempin 75015 Paris, France
Company being incorporated
Our technical infrastructure is provided by Amazon, OVH and Heroku relayed all over the world.
We may be contacted as follows:
– Email: email@example.com
The manager of the Website is: Hugo Martinez