Terms of use
POWELL SOFTWARE (French Simplified stock company – RCS of Versailles number 815141874, hereinafter “Powell Software”)) is the publisher of a comprehensive digital workplace platform that covers the spectrum of business communication and employee experience, as well as employee engagement, collaboration, and productivity, for organizations using Microsoft 365 (hereinafter the “Service(s)”), that is distributed in SaaS.
In this document, the term “Client” refers to the company or entity that subscribes to the Services as a professional in the course of the Company’s business. In this context, the Client has entered into a contract with Powell Software or one if its partners (hereinafter the “General Terms and Conditions of Sale”). The User (hereinafter the “User” or “you”) is the beneficiary of the Client and is a professional who wishes to use the Services and thus be granted a non-exclusive right to benefit from all or part of the Services and from the usage of the Services in the course of the User’s business activity, under the terms and conditions set forth in these Terms of Use.
These Terms of Use (hereinafter the “Terms”) shall apply to any User who wishes to use the Service with an appropriate account (hereinafter “the Account”). If you are using the Services on behalf of a business, you represent to us that you have authority to bind that business or entity to these Terms, and that business accepts these Terms. Please read these Terms carefully before using the Services.
These Terms determine the conditions for setting up and accessing the Services by the User, for its use as an end user, for the User’s own needs and to the exclusion of any resale, sublicense or exploitation on behalf of third parties, including a license to use the Service. As long as you comply with these Terms, Powell Software grants you a personal, non-exclusive, non-transferable, revocable, limited license to enter and use the Service and solely for your own or personal needs as a User.
Powell Software reserves the right to modify, add or update the Terms, at any time and will notify you by any means. If you object to any change, you may ask to close your Account. Your continued use of the Services following this notification means that you accept and agree to the changes.
1. Definitions
“Services” means, whether in the plural or in the singular, the services which mainly relate to Powell Software’s offers as described in the General Terms and Conditions of Sale and in the products documentation (https://powell-software.com/products/).
“Software(s)” means, whether in the plural or in the singular, computer programs licensed by Powell Software in the frame of its Services.
“Users” means a user who is designated by the Client to Powell Software under its responsibility and who may use the Services in compliance with these Terms.
2. Prerequisites – Access to the service
2.1 The Service and the Software are only available in the SaaS mode, and require an Internet access. Powell Software does not provide any hardware, telephone installation, terminal equipment or Internet connectivity, or any On Premise version of the Software.
It is the User’s sole responsibility, at the User’s own expense to provide himself/herself with the technical means, in particular Internet access (hardware, software, networks, etc.) and a Microsoft 365 license, as well as the necessary competence to access the Service(s) and to carry out all permitted operations, without recourse against Powell Software in case of damage resulting from a bad understanding or manipulation.
2.2 In order to access the Service, a Microsoft 365 account (hereinafter the “Account”) is necessary. You are solely responsible for the activity that occurs on your Account, whether authorized by you or not, and you must keep your Account information secure. You are solely responsible for maintaining the security of your Account and keep confidential your personal information, including your password. You understand and agree that Powell Software is not responsible and cannot be hold as responsible for any unauthorized access to your Account or use of it. If you notice any unauthorized or suspicious activity in your Account, you must notify Powell Software immediately.
You understand and agree that Powell Software will communicate with you via electronic means. To ensure that you receive all of the communications, you agree to keep your email address current and to modify it by contacting via the ServiceDesk.
3. Services usage grant
3.1 Subject to these Terms, Powell Software grants to the User a limited, non-exclusive right, to use the Software and the Services only during the term of these Terms.
3.2 The permission for the User to use the Services is subject to the following conditions:
(a) The User must be of an age of majority in its state or province of residence.
(b) The User must not permit any unauthorized person to access or use the Services and shall use reasonable endeavours, including reasonable security measures relating to account access details, to ensure that no unauthorized person may gain access to the Services;
(c) The User must not use the Services in any way that causes, or may cause, damage to the Services or impairment of the availability or accessibility of the Services;
(d) The User must not use the Services in any way that is unlawful, illegal, fraudulent or harmful; or in connection with any unlawful, illegal, fraudulent or harmful purpose or activity.
In case Powell Software is informed that all or part of the Services, or the contents transiting or stored, through or in these, are used for illegal purposes or harm the rights of third parties, Powell Software reserves the right to suspend the provision of the Services or terminate these Terms according to article 11.
4. Product updates
4.1 Powell Software may from time to time provide enhancements or improvements to the features/functionality of the Software and the Services, which may include a new version, new release, patches, bug fixes, updates, upgrades and other modifications (hereinafter the “Upgrade”).
4.2 Powell Software reserves the right to modify, suspend or discontinue, temporarily or permanently, any functionality contained in the Services, with or without notice and without liability to the User.
4.3 Upgrades may modify or delete certain features and/or functionality of the Services. The User agrees that Powell Software has no obligation to:
(a) provide any Upgrade; or
(b) continue to provide or enable any particular features and/or functionality of the Services to the User in any Upgrade.
5. Limitation of Liability
5.1 In no event shall Powell Software, nor its directors, employees, partners, agents, suppliers, or affiliates, be liable for any indirect, incidental, special, consequential or punitive damages, including without limitation, loss of profits, data, use, goodwill, or other intangible losses, resulting from (i) your access to or use of or use of nor inability to access or use the Service; (ii) any conduct or content of any third party on the Service; (iii) any content obtained from the Service; and (iv) unauthorized access, use or alteration of your transmissions or content, whether based on warranty, contract, tort (including negligence) or any other legal theory, whether or not Powell Software has been informed of the possibility of such damage, and even if a remedy set forth herein is found to have failed of its essential purpose.
5.2 Powell Software does not guarantee a continuous operation of the Services, or that they will be free from errors. Responsibility of Powell Software shall only be established in case of serious misconduct or proved negligence in the performance of its obligations and shall be expressly limited, excluding any other damages, of any kind whatsoever, especially business interruption losses, indirect damages, loss of information and damages caused to third parties.
5.3 Liability of Powell Software for all damage shall, in any case, be limited to a maximum amount, whatever is the legal ground of its responsibility, equal to the amount of the yearly subscription for the concerned Service by a User. This clause shall be considered as essential.
5.4 The User shall indemnify Powell Software for any damage resulting from any claim and originating in a breach of these Terms.
6. Disclaimer
6.1 Your use of the Service is at your sole risk. The Service is provided on an “AS IS” and “AS AVAILABLE” basis. The Service is provided without warranties of any kind, whether express or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, non-infringement or course of performance. The risks relating to its quality, its performances or results shall be borne solely by the User.
6.2 Powell Software, its subsidiaries, affiliates, and its licensors do not warrant that a) the Service will function uninterrupted, secure or available at any particular time or location; b) any errors or defects will be corrected; or c) the results of using the Service will meet your requirements.
7. Force majeure
Neither party will be deemed in breach of these Terms if the failure to perform is caused by circumstances beyond its reasonable control, including without limitation acts of God, acts of government, flood, fire, earthquake, civil unrest, acts of terror, strikes or labour problems, computer, Internet, or telecommunications failures, delays or network intrusions, or denial of service attacks, but only if (a) such party gives prompt written notice to the other party of the force majeure event, and (b) such failure or delay results notwithstanding the exercise of reasonable care and diligence to avoid or mitigate the same in anticipation of or in response to such causes. It is expressly agreed that the loss, by Powell Software, of one of its providers involved in the performance of these Terms, especially any hosting provider, or the non-provision of services expected from such providers, shall be deemed to be a force majeure event, the only obligation of Powell Software being then to search for an alternative provider, having similar characteristics, if such a provider exists.
8. Intellectual Property and Use of Software
8.1 The User acknowledges that these Terms do not grant any title or property right on the Services. The Services and its original content, features and functionality are and will remain the exclusive property of Powell Software. The Software used in the course of the Services has been deposited with the Agency for the Protection of Programs in France (“Agence pour la Protection des Programmes” –
APP) under number 15.78.15906. As such, Powell Software holds all copyright on the Service and the Software. Powell Software logos, trademarks, graphics and service marks used for the Service and the Software are trademarks of Powell Software and are protected by the applicable copyright laws. Powell Software trademarks may not be used in connection with any product or service without the prior written consent of Powell Software.
8.2 The Software shall not be modified, reverse-engineered, altered or adapted, including by translation, or corrected, totally or partially by the User.
8.3 Access to the Service is granted to the User as a unique non-exclusive and non-transferrable right of usage, excluding any source of object code. The User shall only be allowed to use all or part of the Service solely for its own needs. In particular, the User is not allowed to make any copy of all part of the Service and the Software, of their accesses, or any elements which may be provided by Powell Software in performance of these Terms.
8.4 These Terms shall not allow the User, even on a temporary basis, to sell, rent, sub-license, place under leasing arrangements, distribute by any means, the Software. Powell Software as a software publisher keeps its product code up-to-date and secure. In the event of Powell Software’s bankruptcy, this code will be given to Users.
8.5 Any information relating to the Service and the Software shall be strictly confidential, and the User undertakes to preserve such confidentiality with regard to both third parties and its personnel whom is not concerned by the Services.
8.6 The User represents and warrants that the User is the owner of all the rights on the data which are necessary for the performance of these Terms and any contents integrated into the Service. The User shall not use in relation to the Service, any illegal content or content which is likely to prejudice public policy, or third party’s rights. More generally the User shall not use the Service to commit any illegal act, and guarantees on first demand Powell Software against any damage that would result from any claim from a third-party for a breach of this guaranty.
The User undertakes to report in writing to Powell Software any illegal content published on the Software, specifying the link to the content which the User considers illicit, as soon as the User becomes aware of it and without delay.
In case Powell Software is informed that all or part of the Services, or the contents transiting or stored, through or in these, are used for illegal purposes or harm the rights of third parties, Powell Software reserves the right to suspend the provision of the Services or terminate these Terms according to article 11.
9. Personal Data and GDPR
9.1 GDPR. The Parties shall comply with all applicable personal data protection laws, especially to the EU Data Protection Regulation n°2016/679 “GDPR”, and all applicable personal data protection laws. The Client is considered as the sole data controller within the meaning of EU Regulation No. 2016/679, known as the GDPR, and of the amended Data Protection Act of January 6, 1978, with respect to the data hosted within the framework of the use of the Software and the Services, which obliges it to comply with these provisions, in particular compliance with all mandatory prior formalities with the CNIL (“Commission Nationale de l’Informatique et des Libertés”).
Users are informed of the various processing of their personal data by Powell Software as a data processor through the Privacy Policy of the Software available at the following link: click here
Furthermore, any data subject is informed that he or she has a right of access, rectification, opposition, limitation and deletion of personal data concerning him or her, as well as a right to the portability of his or her data. To exercise these rights or for more information on this processing, a request may be made to the following address: gdpr@powell-software.com.
9.2 Data security. Data related to Microsoft 365 are not accessible by Powell Software and therefore cannot be copied or restored by Powell Software. Powell Software can only backup and restore data related to Powell Software’s own products. The User acknowledges that it must maintain its own copy of the User’s data and that Powell Software is not responsible for any loss of or corruption to, the User’s data.
10. Confidentiality
“Confidential information” is non-public information that is designated “confidential” or that a reasonable person should understand as such, including, but not limited to, User’s data, the terms of these Terms and User’s account authentication credentials. Confidential information does not include information that (1) becomes publicly available without a breach of a confidentiality obligation; (2) the receiving party received lawfully from another source without a confidentiality obligation; (3) is independently developed; or (4) is a comment or suggestion volunteered about the other party’s business, products or services.
Each party will take reasonable steps to protect the other’s Confidential information and will use the other party’s Confidential information only for purposes of the parties’ business relationship. Neither party will disclose Confidential information to third parties, except to its representatives, and then only on a need-to-know basis under non-disclosure obligations at least as protective as this Agreement. Each party remains responsible for the use of Confidential information by its representatives and, in the event of discovery of any unauthorized use or disclosure, must promptly notify the other party.
A party may disclose the other’s Confidential information if required by law, but only after it notifies the other party (if legally permissible) to enable the other party to seek a protective order.
11. Termination
Powell Software shall be allowed to suspend the provision of the Services or notify the termination of these Terms in the following case:
- in case of non-payment of an invoice of Powell Software fifteen (15) days after its due date,
- if the User fails to comply with the provisions of these Terms.
Powell Software shall be allowed to terminate these Terms without any previous notice if Powell Software is informed that the Service is used for illegal purposes.
12. Governing law and dispute resolution
This Contract is governed by the French law. Any disputes arising from or in connection with the interpretation or performance of this Contract which cannot be resolved amicably, shall be the exclusive jurisdiction of the International Chamber of the Paris Commercial Court.
13. Miscellaneous
13.1 The User expressly undertakes not to assign, whether for a consideration or not, all or part of its rights and obligations which it has pursuant to these Terms.
13.2 These Terms shall constitute the entire agreement of the parties in relation to its subject matter, and replaces and cancels any other proposal or prior agreement relating to the subject. Consequently no particular conditions or general conditions of the User, unless expressly and formally accepted in writing by Powell Software, may prevail over these Terms. Any condition contrary opposed by the Client shall be, unless expressly accepted, be inapplicable to Powell Software, whatever is the time when it has been brought to its notice.
13.3 If any of the provisions of these Terms is considered as void with respect to a current law or a legal decision having become final, it shall then be considered as never to have existed, but nevertheless shall not lead to the nullity of these Terms or alter the validity of its other provisions. Where one or the other of the parties does not require the performance of a clause of these Terms or agrees for it not to be performed, either permanently or temporarily, shall not be construed as a renunciation for such party to its rights resulting from such clause. Any notices to be given hereunder shall be given to the addresses where the parties declare to have their domicile in their respective registered office.