V 1.0 published 26 September 2019
Mindsay - RCS Paris n° 822 349 288
5 rue des Italiens – 75009 Paris, France
Accounts: means the accounts opened on the App for each Authorised User. Each Account is nominative and individual to the relevant Authorised User.
Agreement: means these Terms and conditions contained herein, together with the SLA, the DPA and a completed and signed Sales Order Form. For the avoidance of doubt, each Sales Order Form between the Client and Mindsay forms one separate and distinct Agreement.
App: Means Mindsay’s Saas platform, which embarks Mindsay’s technology and allows to create the Client’s Chatbot. Modules of the App are available to Authorized Users.
Authorised Users: means those employees, agents and independent contractors of the Client who have been authorised by the Client to use the App in accordance with these Terms.
Business Day: means any day that is not a Saturday, Sunday or public holiday in France.
Channel: means either Mindsay’s web widget available for a website or as a webview in an app, Facebook Messenger, Twitter DM, text message, Wechat, Google Home, Amazon Alexa, or any other messaging and/or voice channel that can integrate a Chatbot.
Chatbot: software designed to simulate a conversation between a human User and a conversational agent via any textual interfaces (Facebook Messenger, Webchat, SMS etc.)
Confidential Information: means any information disclosed by or on behalf of a party (the “Disclosing Party”) to the other party (the “Receiving Party”) as a result of the Agreement and that are expressly indicated as confidential by the Disclosing Party, by any written means, including information relating to the business, affairs, customers, clients, suppliers, plans, intentions, market opportunities, operations, processes, product information, know-how, designs, trade secrets or software of a party or any of its subsidiaries or affiliates. Information shall not constitute Confidential Information for the purposes of the Agreement to the extent that the information (a) is or becomes publicly available through no fault of the Receiving Party; (b) is already in the Receiving Party’s lawful possession prior to the Disclosing Party’s disclosure; (c) is received by the Receiving Party from a third party without any restriction and without breach of any confidentiality obligation; (d) is developed independently without assistance of the Disclosing Party and without the use of any information disclosed by the Disclosing Party or (e) is required to be disclosed in a judicial or administrative proceeding, or is otherwise requested or required to be disclosed by law or regulation or in order to demonstrate one Party’s right under the Agreement.
Client: means Mindsay’s client, as identified in the Sales Order Form.
Conversations: a conversation consists of a set of messages exchanged between a User and the Chatbot provided by Mindsay.
Data: means information, publications and more generally, all data from the Client's database the use of which is subject to the Agreement and which can be viewed only by Authorised Users.
DPA: means the Mindsay Data Processing Agreement, which is annexed hereto as Appendix “2” and is incorporated herein by reference.
Effective Date: is the date defined in the Sales Order Form.
Fees: means the fees payable to Mindsay for the Solution by the Client that are detailed in the Sales Order Form, and paid in accordance with clause 6 below.
Initial Subscription Term: means the fixed period of 12 months commencing on the Effective Date.
Normal Working Hours: means the time between 10:00 AM and 7:00 PM in France on a Business Day.
Personal Data: means the Personal Data as defined the the DPA
Renewal Term: means the period described in clause 11.1 of this Agreement.
Sales Order Form: means the ordering document for the Solution, which together with these Terms and conditions form this Agreement.
SLA: means the Mindsay standard service level agreement for the Solution, which is annexed hereto as Appendix “1” and is incorporated herein by reference.
Subscription Term: has the meaning given in clause 11.1 below (being the Initial Subscription Term together with any subsequent Renewal Term(s).
Services: refers to all services offered by Mindsay and detailed in these Terms.
Solution: means the Chatbot and the App made available to the Client as part of the Services of this Agreement, as more particularly described in the Sales Order Form.
Terms and Conditions: means these terms and conditions of services.
User: Anyone who has an exchange with Chatbot.
Website: Mindsay website.
These Terms and Conditions apply without restriction or reservation to all Services provided by Mindsay to the Client.
Mindsay provides consulting, development and maintenance services, resulting in the implementation of a Chatbot that will use the technology developed by Mindsay, but configured and customized to specifically meet the needs of the Client. These Services are available in "Software as a Service" (SaaS) mode.
The purpose of these Terms and Conditions is to define the terms and conditions of provision of Services, as well as to define the rights and obligations of each of the parties within this context.
These Terms and Conditions will prevail over any other general or special terms and conditions not expressly agreed by Mindsay. They form an Agreement together with the Sales Order Form, the SLA and the DPA. This Agreement includes, by order of priority: (i) the Sales Order Form, (ii) the DPA and the SLA (of equal legal value) and (iii) these Terms and Conditions. In the case of any inconsistency between two documents, the document of higher rank shall prevail.
Any order for Services is subject to a Sales Order Form that the Client must expressly accept.
Unless otherwise stated, the Sales Order Form is valid for one ( 1 ) month as of its date of issue by Mindsay. In the absence of an agreement from the Client being issued within that time limit, the Sales Order Form shall be no longer valid.
The Agreement comes into force when the Client sends back to Mindsay by any written means, including by email, a signed copy of the Sales Order Form.
Any order for Services that are not included in the Sales Order Form shall be subject to a supplementary or amending Sales Order Form, which shall be validated under the same conditions as those mentioned hereabove.
The acceptance of the Sales Order Form entails full and complete acceptance of these Terms and Conditions.
This acceptance can only be full and complete. Any qualified acceptance is considered as null and void. Any Client who does not accept to be bound by these Terms and Conditions must not place any order to Mindsay.
Mindsay grants the Client a non-exclusive, personal and non-transferable license to use the Solution, in its current version as of the date hereof and in any future versions, in SaaS mode via the App, for the sole purpose of the use of a Chatbot allowing the implementation of Conversations with Users.
The aforementioned license is granted solely for the use of the Solution by the Client, in the manner specified herein and in the Sales Order Form, for its own needs and by the Users only.
The Client is prohibited from:
The right of use is granted to the Client only subject to the full and effective payment of the prices agreed in the Sales Order Form.
As of the signature of the present ones, within the time indicated in the Sales Order Form, Mindsay will proceed to the implementation of the Solution in order to allow the personnel of the Client to test it.
At the end of this period, Mindsay will communicate to the Client, by any useful written means, a login ID allowing them to access the App, so that he can ensure that access to the Solution is operational, according to the process described in the Sales Order Form.
As the Chatbot is implemented and ready to be tested, the Client can select the Authorised Users responsible for managing the Chatbot, within the limit of the number indicated in the Sales Order Form, and to communicate to Mindsay their email addresses, for Mindsay to open their Accounts and give them access to the Solution.
The Client is solely responsible for the maintenance by the Authorised Users of the confidentiality of their username and password. It undertakes to ensure that the Authorised Users do not allow any third party to use them in their place or on their behalf, except to bear full responsibility. The Client expressly acknowledges that any use of the Solution with these login credentials will be deemed to have been done by itself.
In the event that an Authorised Users finds that his Account is or has been used without his knowledge, the Client agrees to notify Mindsay as soon as possible.
Mindsay undertakes to ensure, in terms of an obligation of means, the hosting of the Solution, as well as Data produced, entered and exchanged between Authorised Users, or between Authorised Users and Users, by a professional hosting service provider, carrying out its activity in in compliance with trade practice and industry standards, on servers located in a territory of the European Union (hereinafter: the "Servers").
In this context, Mindsay undertakes to provide the Client with sufficient storage and processing capacity for the operation of the Solution, as well as to implement all technical means, compliant with the state of the art, necessary to ensure security and access to the Solution and Services, relating to the protection and monitoring of infrastructures, the control of physical and / or intangible access to these infrastructures, as well as the implementation of detection, prevention and recovery measures to protect servers from malicious acts.
Mindsay also undertakes to take all necessary precautions, in view of the nature of the data and the risks presented by the automated data processing implemented for the needs of the Services, to preserve the security of the Data, and in particular to prevent them deformed, damaged or unauthorized third parties have access to it.
To the extent that Mindsay processes any Personal Data (as defined in the DPA), on Client’s behalf, in the provision of the Solution, the terms of the data processing addendum ("DPA"), which are hereby incorporated by reference, shall apply and the parties agree to comply with such terms.
Mindsay charges a set-up fee for the implementation of the Chatbot as defined in the Sales Order Form. It is invoiced and paid in advance, from acceptance of the Sales Order Form.
Mindsay charges a licence fee which includes access to Mindsay’s technology, maintenance of the Chatbot, and a threshold of conversations and use cases, as detailed in the Sales Order Form. The licence fee is invoiced annually. The licence fee start date is defined once the Client receives its login to access the App.
Development of new features for the Client may be subject to additional setup and licence fees, for which a new Sales Order From will be provided.
The Fees for the Initial Subscription Term shall be the prices set out in the Sales Order Form. The Fees during any Renewal Term shall be determined as set forth hereafter.
Mindsay may adjust, at its own discretion, the Fees for any additional Renewal Term, by giving written notice to the Client at least 60 (sixty) days before the start of each Renewal Term. The price adjustment could be, but is not limited to: (a) remove any discounts granted during the Initial Subscription Term or then current Renewal Term, as applicable; (b) update the Basis of Calculation to reflect increases in threshold of conversations and use-cases (as applicable).
The Client will pay each invoice submitted by Mindsay: (a) within 30 days of the date of the invoice.
All amounts and Fees stated or referred to in this Agreement: (a) shall (unless otherwise detailed in the Sales Order Form) be payable in the currency detailed in the Sales Order form; (b) are exclusive of any applicable taxes or charges (including any sales or other transaction-based tax, or value added or non-resident withholding tax), which shall (if applicable) be added to Mindsay’s invoice at the appropriate rate and be payable by the Client; and (c) are non-cancelable and all payments are non-refundable. The Client must make all payments without setoffs, withholdings or deductions of any kind.
If the Client fails to make payment of any and all Fees at their due term, then, without prejudice to the provisions set out in article “Termination for breach”, Mindsay reserves the right to: (a) suspend the Client’s and Authorised Users’ access to all or part of the Solution, it being specified that Mindsay shall be under no obligation to provide any or all of the Solution while the invoice(s) concerned remain unpaid; (b) forfeit the term of all amounts payable by the Client, regardless of the terms of payment that had previously been agreed and (c) apply a late payment interest fee, equal to 3 (three) times the legal interest rate, starting from the first day of delay, based on the amount of all the sums due by the Client; (d) Mindsay will also apply a forty (40) euros lump-sum indemnity for costs recovery, without prejudice of any further compensation in the event effective recovery fees should be higher than this amount.
Without prejudice to the other obligations provided herein, the Client undertakes to respect the following obligations.
7.1 The Client undertakes to provide Mindsay with all the documents, elements, data and information necessary to fulfill the latter's obligations under this Agreement. More generally, the Client undertakes to cooperate actively with Mindsay for the proper performance of this Agreement and to inform it of any difficulties related to this execution.
7.2 The Client declares to have received from Mindsay, prior to the signing of these Terms, any advice, instructions and precisions that are necessary for him to subscribe to this Terms with full knowledge of the facts, that he thus has a sufficient knowledge of the characteristics and the functionality of the Solution and that it has, prior to the present, sufficiently exchanged with Mindsay to ensure that the SaaS Solution's provisioning service corresponds to its expectations, needs and constraints.
The Client undertakes to inform the Authorised Users and Users of the existence of the Solution, as well as to provide them with all useful information to enable them to use it correctly and to facilitate their access.
7.3 The Client undertakes, in his use of the Solution and Services, to comply with the laws and regulations in force and not to infringe the rights of third parties or public order. More specifically, it is its responsibility to comply with the regulations to which it is subject because of its professional activity.
It guarantees against any misuse, improper or illegal use, that the Authorised Users and / or Users can make of the Solution, especially against violations of laws and regulations in force. The Client is thus exclusively responsible for the implementation of any procedures intended to prevent or repair the commission of such acts.
The Client is solely responsible for the proper performance of all formalities including administrative, tax and / or social and all due payments, taxes or levies of any kind that are incumbent on him if any in connection with its use of the Solution and the Services. The responsibility of Mindsay will in no case be engaged in this respect.
7.4 The Client is solely responsible for its use of the Solution and the Services, and in particular: (i) the use of the Solution and the Services by the Authorised Users and the Users themselves for which it is the guarantor, (ii) relationships that may arise between itself, the Authorised Users and the Users, including any disputes or disputes arising or caused by the use of the Solution and the Services, (iii) the content of the Conversations and Exchanges with the Users by the intermediate of the Chatbot. The responsibility of Mindsay will in no case be engaged in this respect.
It is also the responsibility of the Client to alert Mindsay of any attack, potential threat or attempted intrusion of third parties into the Accounts.
7.5 The Client is informed and accepts that the use of the Solution and the implementation of the Services require that it be connected to the Internet and that the quality of the Services depends directly on this connection, for which it is solely responsible.
7.6 The Client shall not, on its behalf and in the name of the Authorised Users, assign or transfer all or part of his rights or obligations hereunder to any third party, including if such third party has a direct or indirect relationship with the Client or any of the Authorised Users, in any way whatsoever.
7.7. The Client acknowledges that the Solution and the Services offer him an additional, non-alternative, customer service management solution and that this solution is not a substitute for other means that he may have elsewhere to achieve the same objective.
7.8 The Client undertakes to defend, indemnify and hold Mindsay harmless from and against any and all claims, demands, actions and / or grievances whatsoever that Mindsay could incur as a result of Client’s breach of any of its obligations or guarantees under this Agreement.
8.1 Mindsay undertakes to perform its obligations under this Agreement with diligence and in compliance with trade practice, it being specified that it has an obligation to provide due care, but this without any obligation of result, subject to provisions of the SLA, which the Client expressly acknowledges and accepts.
In particular, Mindsay does not guarantee the Client that the Solution will allow the Client to automatically achieve the objectives it has set itself by ordering the Services.
8.2. Mindsay undertakes to make its best efforts to ensure the security of the Authorised Users’ Accounts and guarantees them exclusive access to their Accounts.
The responsibility of Mindsay shall however not be engaged in case of malicious introduction in the Accounts, since it is not demonstrated that the security measures it has implemented were faulty.
In addition, Mindsay shall not be held responsible for any lack of vigilance by Authorised Users in maintaining the confidentiality of their username and password.
8.3 Mindsay undertakes to use the information, documents and more generally all the elements that may be transmitted to it by the Client in the context of the present for the purpose of performance hereof. It undertakes not to distribute or share these elements with any third party whatsoever, unless requested or express written agreement of the Client.
8.4 Mindsay undertakes to inform the Client of any foreseeable difficulty, particularly as regards the difficulty of implementing the Solution or its proper functioning.
8.5 Mindsay certifies that it holds an insurance policy guaranteeing its professional civil liability. It undertakes to maintain this insurance policy in force for the duration of this contract.
8.6 Mindsay does not intervene in any case in the contractual relations between the Client and the Authorised Users, nor between the Client and the Users, as well as the ensuing disputes, and does not participate in any way, directly or indirectly, in the Customer Service Management.
Mindsay shall under no circumstances be held liable for any difficulties that may arise in the relations between the Client, the Authorised Users and the Users, nor be a party to any disputes that they may have, including with regard to their use of the Chatbot or any other obligation of which the Client, the Authorised Users and / or the Users would be required.
Likewise, Mindsay is not responsible for Conversations between Authorised Users and Users, Exchanges sent by Users or relations between the Client, Authorised Users and / or Users outside Chatbot Conversations.
8.7 In any event, Mindsay shall not be held liable to the Client for the payment of damages of any kind whatsoever, direct, material, commercial, financial or moral, for an amount exceeding the total amounts invoiced by Mindsay to the Client during the last twelve (12) months prior to the time the alleged damages occurred, as compensation for the Services that caused its responsibility. Even so, Mindsay's liability may only be incurred if the Client has issued a claim by registered letter with acknowledgment of receipt, within one month of said occurrence.
The Client acknowledges that this Agreement does not confer any intellectual property rights on the systems, software, structures, infrastructures, databases, and contents of any nature (texts, images, visuals, musics, logos, marks, database, etc ...) exploited by Mindsay within the Solution , which remain its exclusive property.
In particular, the Client expressly acknowledges and agrees that the intellectual property rights attached to the Chatbot remain the exclusive property of Mindsay.
The Client only has a license to use the Solution and Chatbot under the conditions defined herein.
Consequently, any disassembly, decompilation, deciphering, extractions, reverse engineering, reuse, copies and more generally all acts of reproduction, representation, diffusion and use of any of the elements composing the Solution, in whole or in part, without the authorization of Mindsay, are strictly prohibited and may be subject to prosecution.
The Receiving Party undertakes:
Upon termination of the Agreement, the Receiving Party shall promptly return to the Disclosing Party and/or destroy all documents and other tangible materials representing Confidential Information and all copies thereof.
It is expressly agreed between the Parties that Confidential Information shall remain the property of the Disclosing Party, and that disclosure of Confidential Information under this agreement shall in no way be interpreted as conferring to the Receiving Party, expressly or implicitly, any rights, including intellectual property rights.
This article shall apply throughout the term hereof and its application shall continue in full force and effect for a period of 5 (five) years from the expiration or termination of this agreement, for whatever reason.
11.1 Subject always to either party’s right to terminate pursuant to this clause 10: (a) this Agreement shall commence on the Effective Date and shall continue for the Initial Subscription Term; and (b) after the Initial Subscription Term, this Agreement shall automatically renew for successive periods of twelve (12) months (each a “Renewal Term”), unless either party gives written notice to the other to terminate this Agreement not less than ninety (90) days before the end of the Initial Subscription Term or any Renewal Term (as the case may be), in which case this Agreement shall terminate at the end of the Initial Subscription Term or Renewal Term (as applicable).
11.2 Without prejudice to any other rights or remedies which the parties may have, either party may terminate this Agreement without liability to the other immediately on giving written notice to the other if: (a) (i) the other party is in material breach of this Agreement where the breach is incapable of remedy; or (ii) the other party is in material breach of this Agreement where the breach is capable of remedy and the breaching party fails to remedy that breach within thirty (30) days after receiving written notice of such breach; (b) the other party goes into administration, receivership or administrative receivership, is declared bankrupt or insolvent or is dissolved or otherwise ceases to carry on business; or (c) any event analogous to those described in clause (b) above happens to the other party in any jurisdiction in which it is incorporated or resident or in which it carries on business or has assets.
11.3 Upon termination of this Agreement for any reason whatsoever: (a) all licences and other rights granted by Mindsay under this Agreement shall immediately terminate; (b) the Client shall immediately pay to Mindsay all outstanding unpaid invoices and interest and, in respect of Solution rendered but for which no invoice has been submitted, Mindsay will submit an invoice, which will be payable by the Client immediately on receipt; (c) each party shall (and the Client shall procure that any applicable Authorised User shall), return or destroy as promptly directed by the other party and make no further use of any equipment, property, Confidential Information, the Solution and other items (and all copies of them) belonging to the other party; (d) Mindsay undertakes to restore to the Client the decision trees integrated in the Chatbot, as well as the history of Conversations and Messages, in csv format or any other standard format chosen by Mindsay, readable without difficulty in an equivalent environment; (e) Mindsay also undertakes to proceed with the destruction of these elements and not to keep a copy, subject to the provisions of the DPA.
Upon request by the Client, Mindsay may proceed to the reversibility of the Data, for purposes of enabling the Client or any provider of its choice to resume the Services subject hereof under normal operating conditions ensuring the continuity of said services, on the system that the Client has selected. Such reversibility services shall be subject to an estimate by Mindsay to be validated by the Client under the conditions provided in article 2.1 “Ordering of the Services”.
12.1 Neither party shall have any liability to the other under or in connection with this Agreement if it is prevented from, or delayed in performing, its obligations under this Agreement or from carrying on its business by acts, events, omissions or accidents beyond its reasonable control (a “Force Majeure Event”), including strikes, lock-outs or other industrial disputes (whether involving the workforce of either party to this Agreement or any other party), failure of a utility service or transport network, act of God, war, riot, internet interruptions, civil commotion, malicious damage, compliance with any law or governmental order, rule, change in law, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors. If a Force Majeure Event prevents, hinders, or delays a party’s performance of its obligations under this Agreement for a continuous period of more than 1 (one) month, either party may terminate this Agreement immediately on written notice to the other party.
12.2 The Client expressly authorizes Mindsay to cite and use as appropriate a reproduction of their trademark or logo as a customer reference, especially at events, in its business documents and on its Internet site, in any form whatsoever. The Client further permits Mindsay to use it as a reference account for marketing purposes and agrees, from time to time, to support Mindsay by participating in reference phone call(s) and other marketing events including with press, analysts, and Mindsay’s existing or potential investors or Customers upon reasonable request by Mindsay.
12.3 If one of the parties does not enforce any of its rights or does not demand the execution of any of the obligations or responsibilities of the other party under the Agreement, this shall not in itself be regarded as a waiver by such Party of its rights, obligations and responsibilities under the Agreement.
12.4 The Agreement constitutes the entire and sole agreement between the Parties. It supersedes all prior undertakings, either written or oral, relating to its purpose. In the event that any clause of the Agreement is declared void, unwritten or unenforceable, such clause shall be deemed null and void and shall not affect the validity or continuity of the Agreement as a whole, unless it is a clause which was of decisive nature for one of the parties on the date of signing the Agreement. In this case, the parties shall have to negotiate in good faith with a view to replacing this clause with a clause that reflects their original intention. Any modification or amendment to the Agreement must be subject to a written addendum which may take place through an exchange of emails, when expressly stated herein.
12.5 All notices must be in French or English, in writing, addressed (a) in the case of Mindsay to legal@Mindsay.com, and (b) in the case of the Client to the postal address or email address detailed in the Sales Order Form, or such other address as either party has notified the other in accordance with this clause. All notices shall be deemed to have been given on receipt as verified by written or automated receipt or electronic log (as applicable).
12.6 This Agreement, and any dispute or claim arising out of or in connection with it or its subject matter or formation shall be governed by, and construed in accordance with, the law of France. The parties irrevocably agree that the courts in Paris, France shall have exclusive jurisdiction to settle any dispute or claim that arises out of, or in connection with, the Agreement, its interpretation, its validity, its enforcement or its formation.
12.7 This agreement is concluded intuitu personae. Accordingly, each Party shall not, subcontract, assign, supply or convey all or part of this agreement in any form whatsoever, including but not limited to, by way of merger, demerger, partial transfer of assets or management lease, without prior written consent of the other Party. Notwithstanding the foregoing, the Client expressly acknowledges and accepts that Mindsay reserves the right to entrust subcontractors with associated services that are necessary for the fulfillment of its obligations under this agreement. For this purpose, Mindsay undertakes to ensure that its subcontractors comply with all its obligations hereunder.
12.8 Agreement in relation to proof – The Client expressly acknowledges and accepts that (i) all information collected on the Solution and Mindsay’s computer equipment attest to the reality of the transactions performed in the context of the Agreement and (ii) this information is the main means of acceptable proof between the parties, in particular for the calculation of amounts due to Mindsay. The Client can access this information on the Solution.
12.9 From time to time, Mindsay may make available to the Client, upon acceptation, features identified as beta, pilot, developer preview, non-production, evaluation or by a description of similar import ("Beta Services"). If accepted by the Client, Beta Services: (a) are provided only for evaluation purposes; (b) may not be relied on by the Client for production use; (c) may not be supported; and (d) may be subject to additional terms. Unless otherwise stated, any Beta Services trial period will expire on the date that a version of the Beta Services becomes generally available or is discontinued. Mindsay may discontinue Beta Services at any time in its sole discretion and may never make Beta Services generally available. ALL BETA SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT ANY WARRANTY OF ANY KIND. BETA SERVICES MAY BE TERMINATED AT ANY TIME. DE STYGO DISCLAIMS ALL OBLIGATION AND LIABILITY UNDER THE AGREEMENT FOR ANY HARM OR DAMAGE ARISING OUT OF OR IN CONNECTION WITH A BETA SERVICE, INCLUDING ANY OBLIGATION OR LIABILITY WITH RESPECT TO SUBSCRIBER DATA. ANY CONFIGURATIONS OR SUBSCRIBER DATA ENTERED INTO BETA SERVICES, AND ANY CUSTOMIZATIONS MADE TO BETA SERVICES BY OR FOR SUBSCRIBER, MAY BE PERMANENTLY LOST IF THE BETA SERVICES ARE SUSPENDED, TERMINATED, OR DISCONTINUED.