The singular of these terms shall include the plural and vice versa.
“Agreement” refers collectively to the Non-Disclosure Agreement, the Order, these General Terms and Conditions, and the Data ProtectionAgreement, all of which are incorporated herein by reference and deemed part ofthe Agreement.
"Affiliate"refers to an entity that is controlled by, or is under common control, with a Party. For purposes of this definition, “control” meanspossessing, directly or indirectly, the power to direct or cause the directionof the management, policies, or operations of that Party, whether through ownership of voting securities or by contract.
“AssociatedServices” refers to any services provided by WY related to the Software (e.g., studies, implementation, training, assessment…), ordered by the Client by inclusion in an Order.
“Client” refers to the legal entity that is a signatory to the Order. The Client is considered as a User.
“Data Protection Agreement” refers to provisions stated in a separate document regarding the Personal Data that is collected from Users.
“Non-disclosure Agreement” refers to any separate confidentiality document supplied by WY to the Client and signed by the Client.
“Order” refers to a document, such as a quote, supplied by WY and signed by the Client, by which the Client places an order to be given access to the Software and Associated Services, and accepts to pay the license fees for the Software and the price for the Associated Services. The Orders may contain an annex with Specific Terms and Conditions, if negotiated by the Client with WY.
“Party” refers to WY or the Client. Each Party representsand warrants to the other that it has the authority to enter into this Agreement and to fully perform all of its obligations under the Agreement.
“Personal Data” refers to personal data collected from Client and other Users under the Agreement.
“Server” refers to third party technical infrastructure hosting the Software.
“Software” refers to WY online computer programs, which are described on WY Web site and in the Order and which are installed on the Server. Software includes elements such as databases, all data mentioned in the Agreement, documentation (e.g., specifications) and any upgrade, modification, addition or change to the Software. Releases and new versions of the Software may be released by WY in its sole discretion. The access to the Software is on demand, via the Internet network only, and allows the Users to benefit from WY services.
“User” refers to Client and to any person (employees or contractors) duly authorized by the Client to use the Software and Associated Services, and whois registered as such.
The Order, these General Terms and Conditions, the Non-disclosure Agreementand the Data Protection Agreement constitute the Agreement. The Agreement prevails over any other oral or written agreement or document. In the event of any conflict between these General Terms and Conditions and the Order, the Order shall prevail.
The Client states that he has the authority to enter into and bind the above legal entity to the terms of these Agreement. WY and the Client are independent contractors, and no joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this agreement. The Agreement may not be assigned by the Client, without the prior written consent of WY. Any Affiliates of the Client may become Clients and as such be allowed to use the Software subject to the signature of an Order.
WY may amend these General Terms and Conditions at any time by posting online the amended and restated Agreement. WY shall inform the User of the new amended and restated General Terms and Conditions. The amended and restated Agreement shall be effective immediately upon posting. The use of the Software and Associated Services by the User shall be deemed acceptance of the amended and restated terms. The Client shall be entitled to terminate the Agreement if he does not acceptthe amended and restated Agreement and does not manage to achieve a satisfactory agreement with WY stated in an amendment. In such case, the Client shall notify his/her decision to WY by email (Account Manager email weyield.io) and the Contract will be terminated upon 30 days notice following the Client’s notification. The Client shall only pay the fees that are due for the previous and current months, and the price for any performed Associated Services and the Agreement shall terminate automatically.
WY guarantees that it is the lawful holder of intellectual property rights attached to the Software, or where appropriate, that it has acquired the sufficient rights to grant a user right to the User.
WY grants the Client a non-exclusive, non-transferableand non-sublicensable license (the “License”) to use the Software, subject to the complete payment of the fees stated in the Order. This license is granted to Client and its Users for its internal needs only at the exclusion of any other purposes.
As a condition of the access to and use of the Software, the Client agrees(a) to pay the fees described in the Order and (b) that Users will not use theSoftware in violation of the intellectual property rights of WY and others in any way.
WY will in appropriate circumstances terminate the accounts of Users or terminate the Agreement a) if the Client does not pay the fees and/or b) in case of infringement of the copyrights, or other intellectual property rights or Competition Law rules in force and/or c) if WY believes that Users conduct is harmful to the interests of WY, its Affiliates, or other persons.
The Software embodies trade secrets and intellectual property rights protected under worldwide copyright and other laws. All title, ownership and intellectual property rights in the Software shall remain with WY, its Affiliates or licensors of elements of the Software’s content, as the case may be. All rights not otherwise granted under this Agreement by WY are hereby reserved.
(a)Regarding the Software: The Users shall not (i) modify, copy, or otherwise reproduce the Software in whole or in part; (ii) reverse engineer, decompile, disassemble, orotherwise attempt to derive the source code form or structure of the Software used in the Services except as authorized by law; (iii) permit access to theSoftware through Internet links, frames, or content mirrors (other than through User’s own intranet system or otherwise for its own internal business purposes) or attempt to gain unauthorized access to the Software; (iv) modify or create a derivative work of any part of the Software or create a competitive work by using the Software; (v) license, sublicense, sell, resell, rent lease, transfer, assign, distribute, commercially exploit the Software, or otherwise provide third party access to the Software; (vi) interfere with or disrupt the Software and the Software’s Content such as defined hereunder; (vii) disclose any confidential or proprietary information of WY to third parties unless compelled by law after providing timely written notice to WY; or (viii) use the Softwaref or any unlawful purpose.
(b) Regarding the Software Content: In exercising its rights under the License, the Client and its Users shall not copy, reproduce, download, use any database, data such as, text, images, video clips, directories, files, or listings available on or through theSoftware (“Software Content”) for the purpose of re-selling or re-distributing the Software Content, mass mailing, operating a business that competes with WY, or otherwise commercially exploiting the Software Content. Systematic retrieval of the Software Content from this Software to create or compile, directly or indirectly, a collection,compilation, database or directory (whether through robots, spiders, automatic devices or manual processes) without written permission from WY is prohibited. The use of the Software Content or materials for any purpose not expressly permitted in this Agreement is prohibited.
(c)Regarding Third Party Content: Part of Software’s content is provided or posted by or comes from third parties (“Third Party Content”). WY is not the author of Third-Party Content, whether contributed by anonymous users or paid content providers or collected by WY. Neither WY nor any of its Affiliates, directors, officers or employeeshas entered into any sales agency relationship with such third party by virtue of WY's display of the Third Party Content on the Software. Any Third Party Content is the sole responsibility of the party who provided the content. WY is not responsible for the accuracy, propriety, lawfulness or truthfulness of any Third Party Content, and shall not be liable to Client in connection withClient’s reliance on such Third Party Content.
(d) Regarding Users Data: In order to access and use the Software, the Client and its Users may have to communicate information relating to Client’s activity, such as its turnover and personal data (“Users Data”). WY may also have access to this information via other WY solutions used by the Customer which the Client expressly accept.
Client and its Users have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of Users Data and its back-up.
Client grants an irrevocable, perpetual, worldwide, royalty-free and sublicensable (through multiple tiers) license to WY to display and use all UsersData provided with the purposes set forth in this Agreement and to exercise the copyright, publicity, and database rights it has in such material or information, in any media now known or not currently known.
The Client represents, warrants and agrees that:
1. It shall be solely responsible for ensuring that any material or information Users post on the Software or provide to WY, or authorize WY to display, does not violate any third party rights, or is posted with the permission of the owner(s) of such rights. Client undertakes to inform WY of the existence of any User Data forwhich Client or Users does not own all the intellectual property rights. In such case, it is the obligation of the Client to obtain the required authorizations from the author or publisher or, in WY's discretion, replace the concerned UserData. The Client guarantees WY against any action or claim by third parties.
2. It shall be solely responsible for compliance by Users with the conditions of use of theSoftware set out in this these Terms and Conditions and in the Data ProtectionAgreement.
3. The Client and its Users shall not display Users Data containing fraudulent information or information which violate any applicable law or regulation. For instance, UsersData shall not contain any material that constitutes unauthorized advertising or harassment (including but not limited to spamming), invades anyone’s privacy, contain any computer viruses or other destructive devices and codes that have the effect of damaging the Software or any hardware system, data or personal information.
WY reserves the right in its sole discretion to remove any User Datadisplayed on the Software which it reasonably believes is unlawful, couldsubject WY to liability, violates this Agreement or is otherwise foundinappropriate in WY's opinion.
WY reserves the right to cooperate fully with governmental authorities,private investigators and/or injured third parties in the investigation of anysuspected criminal or civil wrongdoing. Furthermore, WY may disclose the User’s identity and contact information, if requested by a government or law enforcement body, an injured third party, or as a result of a legal action, and WY shall not be liable for damages or results thereof, and User agrees not to bring any action or claim against WY for such disclosure. In connection with any of the foregoing, WY may suspend or terminate the Account of any User as WYd eems appropriate in its sole discretion.
(e)Regarding Third-party Web software: WY may allow the User access to content, products or services offered by third parties (“Third-party Web Software”) through hyperlinks (in the form of word link, banners, channels or otherwise). The Client is cautioned that Users must read Third-party Web Software terms and conditions and/or privacy policies before using such Third-party Web Software. The Client acknowledges that WY has no control over such Third-party Web Software, does not monitor such software, and WY shall not be responsible or liable to anyonefor such Third-party Web Software, or any content, products or services made available on such Third-party Web Software.
(f)Regarding data derived from the Software (“Data”):Data refers to all customized query results, information, reports, or other data gathered through the use of the Software.
The Client and its Users shall not (i) display, disclose, or make any Data available to any third party except as permitted in this Agreement; (ii) create any derivative work or compilation of any part of the Data, (iii) sell, rent, lease, loan, provide, distribute, re-package, or otherwise transfer or conveyall or any portion of the Data except as specifically provided in this Agreement; (iv) remove, alter, cover, or obfuscate any copyright notices, trademark notices, or other proprietary rights notices placed or embedded on or in the Data.
WY undertakes to make its best efforts to ensure a level of security appropriate to the risk associated with the processing of Users Data. WY maintains organizational, technical and administrative measures designed to protect Users Data within its organization against unauthorized access, destruction, loss, alteration or misuse.
These technical and organizational security measures shall include, as a minimum standard of protection, the security requirements set out hereunder:
a) The host provider of the Server chosen by WY complies with physical security requirements ;
b) Data Access control: Measures to ensure that persons entitled to use a data processing system have access only to the data to which they have a right of access, and that Client information cannot be read, copied, modified or removed without authorization in the course of processing. WY ensures that all employees of WY handle Users Data with most care and confidentiality. Assignment of access privileges to the databases holding Users Data is based on individual personnel’s job classification and function, limiting access to relevant data only.
WY does not sell or rent Users Data to third parties. However, WY may share Users Data with a limited number of its service providers who need to access Users Data in order to perform their services, such as Software hosting or data analysis. They are subject to an obligation of confidentiality.
WY collects personal data from Users (“Personal Data”) in order to allow Users to access and use the Software and WY uses the Personal Data to provide the Software as a Service.
Each person authorized by the Client (employee or contractor) to become a “User” must fill out an online registration form and provide WY with information such as his first and last names, name of his employer, e-mail address and any other personal information requested to identify the User. WY will establish an account for each User.
The Client and its Users shall not undertake any scheme to undermine the integrity of the computer systems or networks used by WY and/or any other Userand no User shall attempt to gain unauthorized access to such computer systemsor networks. Clients and its Users may not sell, attempt to sell, offer to sell, give, assign or otherwise transfer an Account, User ID or Password to a third party without the prior written consent of WY. WY may suspend or terminate the Account of a User or the transferee of a User in the event of a sale, offer to sell, gift, assignment or transfer in violation of this Section.
If Users submit any information to WY to be published on the Software through the publishing tools, then Users are deemed to have given their consent to the publication of such information.
A data protection agreement (“Data Protection Agreement” or “DPA”)supplements these Terms and Conditions and forms part of the Agreement.
In the eventthat the use of the Software by the Client and its Users is likely to become the subject of an infringement-related claim, by a third-party, WY will, in its discretion and at its own expense, (a) replace the Software or the concerned item of the Software by a non-infringing program or to modify it in order to remove any infringement or to stop the access to the Software, or (b) obtain the right for the Client and its Users to continue using the Software. WY does not offer any warranty of non-infringement of any intellectual property rights on or in connection with the use of Software or part thereof.
WY shall defend and/or settle, at its own expense, any claim, action, or proceeding (collectively, "Claim") brought against the Client to the extent based upon a claim that the Software (or use thereof by the User) infringes any copyright in France, and shall indemnify and hold Client harmless from and against any and all damages finally awarded against the Client (including reasonable attorney fees) which are attributable to such Claim, provided that theClient: (a) notifies WY promptly in writing of any such Claim,(b) gives WY the sole control of the defense and/or settlement of such Claim, where any amounts paid to the party bringing the claim will be considereda final award for purposes of this indemnity, and where such settlement may not involve any other restrictions or covenants by the Client unless the Client expressly agrees to same in writing in advance, and (c) gives WY all reasonable information and assistance at WY’s expense, excluding time spent by User employees or consultants. The Client shall execute any documents, render any assistance, and take any other actions as WY may reasonably request, at WY’s expense, to apply for, register, perfect, confirm, and protect WY’s rights in any intellectual property covered by in this Agreement or included in or associated with the Software.
WY’s standard monthly average for uptime for the Software’s platform is noless than 90%, which uptime does not include WY’s scheduled upgrades, any force majeure events, unavailability of Internet telecommunication facilities and maintenance work on the Software and on the IT infrastructure.
The Client understands that scheduled and unscheduled interruptions may occur, and that there is no guarantee of uninterrupted availability of the Software. Nonetheless, normal Software or hardware upgrades are scheduled and designed to avoid significant interruption to availability of the Software. The Client will receive advance notice of such activity.
However, emergency maintenance may occur at unscheduled times. During these interruptions, the Client and its Users may be unable to transmit and receive data through the Software. The Client agrees to cooperate with WY during interruptions if assistance from the Client is necessary in order to restore the Software to a working order.
The Client acknowledges that the inability to use the Software wholly or partially for what ever reason may have adverse effects on its business. The Client hereby agrees that in no event shall WY be liable to the Client and/or its Users or any third parties for any inability to use the Software (whether due to disruption, limited access, changes to or termination of any features on the Software or otherwise), any delays, errors or omissions with respect to any communications or transmission, or any damage (direct, indirect, consequential or otherwise) arising from the use of or inability to use the Software or any of its features.
Technical support for the Client and Users use of the Software will be provided by WY. WY provides technical support regarding: (i) The Users initial access and registration to the Software; and (ii) The Users ongoing use of the Software; provided, however, such support will be limited to problems and/or inquiries related directly to the Users use of the Software and shall not include any problems related to the Users connection to the Software or the Users interface with the Software.
Complementary Associated Services may be ordered by the Client to WY in the Order, such as development and consulting services, training and studies. The price for these Associated Services is indicated in the Order separately from the license fees.
WY may suspend or terminate the Agreement or a User’s Account at any time and without prejudice to damages and interests that WY may claim in case of:
(a) Client’s breach of the Agreement, or
(b) If WY has reasonable grounds to suspect that information provided by the Client is un true, inaccurate or is not current or complete, or
(c) If WY believes that the User actions may cause financial loss or legal liability to such User, WY’s other Users, or WY or its Affiliates (e.g., infringes WY protection system, or executes illicit copies of the Software) or
d) In case the Software is used by the Client and/or its Users to breach any applicable law ordinance or regulation such as Competition Law rules (consumer protection, unfair competition…).
Termination or suspension will occur if the User does not cure the breach within the time mentioned in the written notice sent by registered letter with acknowledgement of receipt (no less than 24 hours except in case of emergency) by WY.
License fees and fees for the Associated Services to be paid by the Client to WY and billings schedule are indicated in the Orders. License fees depend on the volume of units declared by the Client (e.g., number of cars, number of rate shops) in the Order. Any change of volumes will result in the change of the monthly license fees to pay to WY. WY will then send a new Order to the Client.
11.1 Taxes: Prices are understood to be exclusive of taxes. The taxation applicable shall be as laid down under current regulations. If WY has the legal obligation to pay or collect taxes for which Client is responsible, the appropriate amount will be invoiced to and paid by Client, unless Client provides WY with a valid tax exemption certificate authorized by the appropriate taxing authority.
11.2 Invoices – Payments: Invoices are issued on the first day of each month. Client shall pay all fees no later than the due dates set forth in each Order, if not specified therein, within 30 calendar days from the date of invoice. Payment by Client that originates outside of France shall be made by wire transfer. Upon Client’s request, WY will send a copy of the invoice by email.
Fees are non-refundable and all fees are payable in euros.
Any portion of the fees that is not paid when due will accrue interest at three (3) times the legal interest applicable in France from the due date until paid, and the amount for recovery costs is set at a minimum amount of 40 euros, without prejudice to any other damages and interest.
Furthermore, in the event of non-payment, WY may suspend performance of the services or deny the Client and/or Users access to the Software 24 hours after an unavailing formal demand, pending payment in full of the outstanding amounts. WY shall be allowed to terminate automatically the Agreement in case of non-payment of the license fees by the Client.
WY reserves the right, upon reasonable prior notice to Client and during Client’s normal business hours, to audit Client and its Users use of the Software and Data and Users Content for the sole and limited purpose of verifying compliance with this Agreement and the accuracy of information declared by the Client in the Order (volumes). In the event that any audit reveals any under payment of fees or non compliance with this Agreement, Client shall promptly pay WY any shortfall in WY fees. If the underpayment is greater than five percent (5%) of the total amount owed during the applicable period, Client shall in addition reimburse WY the reasonable costs of such audit and WY shall be entitled to terminate with no other formalities and no indemnities the right for Client and its Users to access and use the Software.
WY shall operate the Software with reasonable care and skill and inaccordance with best industry practice but shall not be liable for downtime caused by routine or emergency maintenance or occasioned by third parties.
WY undertakes to choose host providers who undertake to take all technical measures in accordance with the state of the art in order to protect their Servers and the Software and to store data. However, the User acknowledges that the Internet is an open system and WY cannot and does not warrant or guarantee thatthird parties cannot or will not intercept or modify User Data and more generally the Software.
Under no circumstances shall WY be held liable for any delay or failure ordisruption of the content or services delivered through the Software resulting directly or indirectly from force majeure events such as defined by French courts.
WY shall not be liable in case of third party fault or actions of the User himself. WY isnot liable for damages caused by the User passing passwords or User names to non-entitled parties.
The Software is provided on an “as is” and “as available” basis and WY makes no representations or warranties of any kind concerning any informatio nor service offered or displayed on the WY Software. It is the Client sole responsibility to verify that the Software meets its own needs and specifications.
It is the responsibility of the Client and its Users to verify data obtained via or in relation to the Software.
WY does not represent or warrant that the display and/or use of informatio nor services offered or displayed on the Software does not violate any third party rights.
Any material downloaded or otherwise obtained through the Software is done at each User’s sole discretion and risk and each Client is solely responsible for any damage to its computer system or loss of data that may result from the downloading of any such material.
WY assumes no liability for the combination, operation, or use of the Software with non-WY programs or data, or use of the Software not in accordance with the permitted uses in this Agreement or any third-party use.
In no event will either Party have any liability to the other for any lost profits, loss of use, costs of procurement of substitute goods or services, or for any indirect damages however caused and whether or not the Party has been advised of the possibility of such damage.
Except for WY's indemnification obligation set forth in the section “Intellectual Property Rights - Indemnification”, in no event shall WY's aggregate liability arising out of or related to the Agreement, for all types of damages and for any reasonwhatsoever, exceed twice the last monthly license fee paid by the Client to WYunder this Agreement for monthly subscribers or twice the last amount of credit paid by the Client to WY under this Agreement if it is a one-time client, without exceeding €10,000. the indemnity will not exceed twice the amount of the last monthly license fee paid by the client or twice the last amount of credit paid by the client if it is a one-time client, without exceeding 10,000 € all damage and all claims combined. The Client acknowledges that this indemnity is determined in consideration of the various elements of the contract, that it is not trivial and that it is a determining clause of the Contract.
WY will not be responsible for any violation of legal rules by the Client due to the use of the Software and will not assume any financial or other consequences arising from a violation of laws and regulations by Client.
The Client shall defend and/or settle, at its own expense, any claim, brought against WY to the extent arising from or related to the Users use, or the Users failure to comply with this Agreement. The Client shall indemnify and hold WY harmless from and against any and all damages and costs as are finally awarded against WY including reasonable attorneys’ fees attributable to such claims, provided that WY: (a) notifies theClient promptly in writing of any such action, (b) gives the Client sole control of the defense and/or settlement of such action where any amounts paid to the party bringing the claim will be considered a final award for purposes of this indemnity, and where such settlement may not involve any other restrictions or covenants by WY unless WY expressly agrees to same in writing in advance, and (c) gives Client all reasonable information and assistance at the Client’s expense excluding time spent by WY’s employees or consultants.
The Agreement shall be governed by the laws of France without regard to its conflict of law provisions.
IN THE EVENT OF A DISPUTE ENSUING FROM THE VALIDITY, INTERPRETATION, EXECUTION OR NON-EXECUTION, INTERRUPTION OR TERMINATION OF THE AGREEMENT,THE PARTIES UNDERTAKE TO INITIALLY SEEK AN AMICABLE SOLUTION, DIRECTLY BETWEEN THEIR TWO COMPANIES THEN, FAILING DIRECT AMICABLE SOLUTION, THEY RESORT TO A MEDIATOR AS PART OF A MEDIATION, UNDER PENALTY OF INADMISSIBILITY OF ANY JUDICIAL ACTIONS. TO THIS END, THE PARTIES SHALL CONTACT THE MEDIATION AND ARBITRATION CENTER OF PARIS (CMAP) - CHAMBER OF COMMERCE OF PARIS, AND SHALL EQUALLY SHARE THE COSTS RELATING TO THIS MEDIATION.
IF SUCH AMICABLE SOLUTION CANNOT BE REACHED, THE DISPUTE WILL BE FOR THE EXCLUSIVE COMPETENCE OF THE COURTS OF EVRY (91),FRANCE.
If any provision herein is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced.
Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section.
WY’s failure to enforce any right or failure to act with respect to any breach by a User under these terms and conditions will not waive that right nor waives WY’s right to act with respect with subsequent or similar breaches.
All notices or demands to or upon WY shall be effective if in writing andshall be duly made when sent to WY at the following address: We Yield SAS, 4villa Bois de Bailleul, 91080 Courcouronnes, France, Attn: Legal Department. All notices or demands sent by WY shall be effective if either delivered personally, sent by courier, certified mail or email, to the correspondence, fax or email address provided by the User to WY, or by posting such notice or demand on an area of the Software that is publicly accessible without a charge. Notice to the Client shall be deemed to be received by the Client if and when (a)WY is able to demonstrate that communication, whether in physical or electronic form, has been sent to the Client, or (b) Immediately upon WY’s posting such notice on an area of the Software that is publicly accessible without charge.
updated on May 29, 2020