Service Level Agreement and General Terms and Conditions of Sale and Delivery of AskCody Services
1. Scope of Applicability
- This Service Level Agreement and terms and conditions of sale and delivery (the “Service Agreement”) apply to all contracts for the use of services in the field of Meeting Management, Visitor Management, Indoor Wayfinding and Workplace Insights & Analytics (the “Services”) provided by AskCody, Inc. to business customers (hereinafter referred to as the “Purchaser”) in the United States, or provided by AskCody ApS to business customers (hereinafter referred to as the “Purchaser”) Europe and Asia.
- AskCody Services and solutions are provided as Software As A Service (SaaS) and are billed yearly. The Service is provided as a service based on AskCody software, but neither source nor object code of the software used to provide the Service is delivered or licensed to the Purchaser or any end user, nor are the Purchaser or any User entitled to access to such programming code.
2. Contractual basis
- This Service Agreement applies unless a separate written agreement has been executed between AskCody and the Purchaser (hereinafter referred to as “the Parties”) stating differently. If such written agreements between the Parties clearly stipulates differently than the terms and conditions specified below, the terms of such written agreements shall be given priority.
- The Parties agree to cooperate in a positive, professional and responsible manner during the entire process, and to make an effort, in order to achieve the best result possible. Furthermore, the Parties shall exhibit reasonable flexibility.
- The Parties shall on a regular basis inform each other about any relation, which is considered likely to affect the completion of an efficient contractual process.
- Purchaser’s users (hereinafter referred to as the “Users”) may access and use the Service solely for Purchaser’s internal business purposes, which means that neither the Users nor the Purchaser may sell, resell, license, sublicense, distribute, rent, lease or otherwise commercially exploit the Service or any underlying software except as contemplated by this Service Agreement. The Purchaser and the Users may not decompile, disassemble, translate or reverse engineer any the Service; nor remove from the Service any language or designation indicating the confidential nature thereof or the proprietary rights of AskCody or its suppliers.
- Purchaser warrants and represents that it owns all right, title and interest in and to the Purchaser Data, or possesses all legally valid rights in the Purchaser Data, and the right to provide such Purchaser Data to the Service for use in the Service. “Purchaser Data” means data, information or material uploaded or routed to AskCody, transmitted using the Service or otherwise provided to AskCody in any medium by the Purchaser or third parties, together with any derivative works made therefrom.
- Except for rights expressly granted under this agreement, nothing in this agreement will function to transfer any of either party's Intellectual Property rights to the other party, and each party will retain an exclusive interest in and ownership of its Intellectual Property developed before this agreement or developed outside the scope of this agreement.
- The Purchaser is solely responsible for the accuracy, quality, integrity, reliability, and appropriateness of the Purchaser Data. During the duration of this Service Agreement, the Purchaser grants to AskCody a limited, non-exclusive, non-sublicensable, non-transferable license to capture, copy, store, transmit, maintain, access and display the Purchaser Data solely to the extent necessary to provide the Service to the Purchaser under this Service Agreement. AskCody may provide the Purchaser Data to third parties that perform operation and development services for AskCody for technical purposes, subject to confidentiality agreements between AskCody and such third parties. In addition, AskCody may use data stored on the Service (and statistics about the use of the Service) in order to operate and improve the Service, including for the purpose of verification of compliance with this Service Agreement. In connection with a potential sale of AskCody or its business units to a new operator of the business, it may be necessary to transfer the right to utilize data collected by AskCody in order to for such new operator of the business to continue to provide services to customers. Accordingly, in such cases, AskCody may make such information available to such third party (including its rights to use Purchaser Data and any related personal and business information).
- AskCody will use commercially reasonable efforts to maintain the security and integrity of the Purchaser Data. AskCody will be responsible for backing up the Purchaser Data on an agreed schedule. Upon termination or expiration of this Agreement for any reason, AskCody will provide the Purchaser with the Purchaser Data, destroy all copies thereof and upon the Purchaser’s request certify the same to the Purchaser in writing, provided that the Purchaser Data on back-up media may be destroyed or recycled according to AskCody’s retention schedule for such media.
3. Warranties, Services, and Obligations Regarding AskCody Solutions
- AskCody shall provide the Services during the Term of this Agreement on a 24/7 basis according to the service levels set forth in this Service Agreement, it being understood that the Services may be inaccessible or inoperable from time to time for any reason, including, without limitation:
- equipment malfunctions
- periodic maintenance procedures or repairs which AskCody may undertake from time to time
- causes beyond the control of AskCody or which are not reasonably foreseeable by AskCody, including, without limitation, interruption or failure of telecommunication or digital transmission links, delays or failures due to Purchaser’s Internet access connections, hostile network attacks, network congestion or other Force Majeure Events (defined in Section 8 of this Service Agreement).
- The Purchaser agrees that AskCody has no control over the stability and throughput speed of the Internet or other data transmission systems used by the Purchaser or any 3rd party provider.
- AskCody’s service targets follows AskCody’s Cloud and Infrastructure Provider (Microsoft Azure) and guarantee at least 99.9% availability. https://azure.microsoft.com/en-us/support/legal/sla/summary/
- Assuming Purchaser has a sufficient Internet connection, AskCody guarantee 99.9% uptime on the Service.
- Uptime: defined as the amount of time the system/Service is up and running and available for use. Uptime is measured per month and is calculated from the following formula:% uptime/month = 100 * ((24 * number of days in the month) – total downtime in month)/(24 * number of days in the month)Downtime: defined as the number of hours the system/Service is not up and running and available for use during one month.
- AskCody is not responsible for making the Service available under the following conditions, and accordingly, unavailability due to them is not included in the calculation of downtime:
- Service windows (3.7) notified accordingly in advance.
- Errors and crashes for any reason, that occurs in the Purchaser’s own network, power-or IT-system, hardware, including system software, as well as lack of access to the Purchaser’s network and an active Internet connection.
- Errors and crashes for any reason that occurs because of an incompatibility between the Purchaser’s IT system and the Services.
- Per definition all service windows are included in the uptime guarantee if notified at a minimum 3 days in advance.
- In cases that are to be classified as emergencies and which require an extraordinary service window, services or maintenance windows are to be announced at least 24 hours in advance.
- Emergency service windows are only announced in cases where security issues are discovered.
- If the Services are not available in 99.9% of the time per month, AskCody is obliged to provide the Purchaser a compensation equal to 5%, per each 1% points below the service target of 99.9% of the time per month for one-twelfth of the annual remuneration.
- Providing the Purchaser may wish to invoke compensation referenced above, the Purchaser shall do so no later than the 10th in the following month. If the Purchaser does not comply with the given deadline, the Purchaser waives the right to compensation.
- However, AskCody can in no case, except for gross negligence and intent, be obliged to provide the Purchaser compensation greater than 75% of one-twelfth of the annual remuneration of downtime per month relating to the Service in question.
- AskCody reserves the right at any time to develop and improve the Services, as well as change the hosting provider. Information concerning AskCody’s hosting provider is available at www.goaskcody.com. If AskCody changes to another hosting provider after the conclusion of an agreement, AskCody will inform the Purchaser prior to this change. AskCody’s warranty does not include errors or omissions due to misuse in accordance with AskCody’s instructions, standard practice or not-agreed purposes, repair or alteration performed by other than AskCody, or any other circumstances which AskCody is not responsible for.
- Purchaser’s exclusive remedy and AskCody’s sole liability under this Service Agreement shall be for AskCody to correct any material failure of the Service to perform as promised, if and Purchaser, at AskCody’s request, provides AskCody with sufficient information (which may include access to Purchaser’s computer system to reproduce the defect in question). In the event that AskCody cannot, after repeated efforts, remedy such failure, AskCody shall refund all payments received by AskCody from Purchaser hereunder and terminate this Service Agreement, and Purchaser’s use of the Service shall terminate.
- THE ABOVE ARE THE ONLY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, THAT ARE MADE BY ASKCODY AND ASKCODY DISCLAIMS ALL OTHER WARRANTIES, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE OR THAT THE OPERATION OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY ASKCODY, ITS AGENTS OR EMPLOYEES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THE WARRANTIES IN THIS AGREEMENT. SUCH WARRANTIES SHALL NOT BE DEEMED TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE SO LONG AS ASKCODY IS MAKING GOOD FAITH EFFORTS TO CORRECT DEFECTS OR FAILURES UNDER THE TERMS OF THE WARRANTY.
- AskCody’s telephone support: 8am to 5pm EST (North America) and 8am to 5pm CEST (Europe), Monday – Friday
- Calls received outside of business hours will be sent to a mobile phone and best efforts will be made to answer the call.
- AskCody’s E-mail support may be reached at: firstname.lastname@example.org and is supervised from 8am to 6pm EST and CEST, Monday – Friday.
- E-mails received outside of business hours will be collected but does not commit to responding until the following business day. All emails are to be answered within 24 hours.
- Should the error and/or support issue be concerning Section 3.6.2, 3.6.3 and 7 the Purchaser will be held responsible for the cost and will be billed by the hour. The Purchaser will be informed about the potential cost, when relevant, beforehand.
5. Offers, Purchase Order, and Order Confirmations
- A quote from AskCody is valid in 10 days from the date of issue unless otherwise stated. Acceptance of a quote received by AskCody after the validity date is not considered binding unless it is confirmed in writing by AskCody.
- Orders must be sent to AskCody in writing. An order shall contain an order number, reference, the Purchaser attention, contact information, description of service ordered, price, and expected delivery date.
- AskCody strives to confirm or reject an order within 3 working days after receiving it. Affirmation or refusals of orders must be in writing to bind AskCody.
- The Purchaser cannot modify an order without AskCody’s written consent
6. Terms of Payment
- Payment is due within 30 calendar days after the date of the invoice.
- If Purchaser fails to pay any invoice within 30 calendar days after receiving the invoice, AskCody may suspend delivery of any purchased order or any remaining balance thereof until payment is made or terminate delivery of the Services providing the Purchaser with a written notice of termination. AskCody may charge the Purchaser interest of 2% for each commenced month after the last date on which payment was due.
- Besides interest rate as described in Section 6.2, if the Purchaser fails to pay within 45 calendar days after receiving the invoice, AskCody is entitled to discontinue the Service without further notice. Any disturbance this may cause the Purchaser is irrelevant to AskCody.
- Purchaser is responsible for all sales, use, value-added, excise, services, consumption and other similar taxes or duties resulting from the provision of the Service hereunder, except AskCody is responsible for all taxes based on ownership of its own property or on its net income, and payroll and employment taxes relating to AskCody’s personnel.
7. The Purchaser's Obligations
- The Purchaser agrees to provide AskCody with all information and cooperation reasonably necessary or desirable to implement the Services for the Purchaser. The Purchaser shall be solely responsible for providing, maintaining and ensuring compatibility with the Services, including securing internet access connections. The Purchaser will use commercially reasonable efforts to prevent unauthorized access to, or use of the Services.
- In those cases, where the Services mentioned and listed in the enclosed offer are integrated into the Purchaser’s IT-system or calendar system, the Purchaser warrants at any time to meet the requirements regarding the IT-system, in order to ensure that AskCody’s Services can be integrated into the Purchaser’s IT-system.
- The Purchaser shall within a reasonable time notify AskCody about planned alterations in the Purchaser’s IT-system. If the changes cause the Service not to serve its purpose, AskCody shall bear no responsibility in this regard. In these circumstances, AskCody will furthermore be entitled to terminate the Service Agreement.
- The Purchaser must give AskCody access to staff and provide information to the extent necessary for the Services to work, including access to relevant staff in connection with the setup on the Purchaser’s network or integration into the Purchaser’s calendar system.
- Purchaser agrees not to access (or attempt to access or authorize any other party to access) the Service by any means other than through the interface(s) that are provided by AskCody, unless Purchaser has been specifically allowed to do so in a separate written agreement executed by AskCody. Without limiting the generality of the foregoing, Purchaser specifically agrees not to access (or attempt to access) the Service through any unauthorized automated means (including use of scripts or crawlers). Similarly, Purchaser agrees that Purchaser will not provide any third party access to material on the Service (or facilitate their attempt to access) by any means other than through the interface that is provided by AskCody, unless Purchaser has been specifically allowed to do so in a separate written agreement executed by AskCody. Purchaser agrees that Purchaser will not engage in any activity that interferes with or disrupts the Service (or the servers and networks which are connected to the Services); interfere with or disrupt the Service or take any steps to interfere with or in any manner compromise any security measures with respect to the Services or any data or file transmitted, processed or stored on or through the Service.
8. Unforeseen Events (Exemption from Responsibility)
- AskCody is not responsible for any failure, and thus for breach of the Service Agreement, if the failure is caused by conditions beyond their control (force majeure), including – but not limited to – the weather and other natural disasters, terrorist actions, war, interruption or failure of telecommunication and power supply, acts of the government or public authorities, or strikes.
9. Termination, Bankruptcy, and Renegotiation
- The initial term of the Service is 12 whole months plus that portion of the initial month in which where the Service is first made available to the Purchaser. After the initial period of service, AskCody shall continue to provide the Service and the terms of this Service Agreement shall continue for successive one year periods, and Purchaser shall pay the fees, therefore, unless either party notifies the other of its intention to discontinue the Service hereunder at least three months prior to the end of the then-current Service period. If notice of discontinuance is not received during that three month period, the fee specified in the billing profile shall be paid for the new period of a full year, no matter when the termination actually occurs.
- The Service Agreement can be terminated by either Parties in writing, with a notice of at least 3 months. The Service Agreement can be terminated completely, with regard to all the delivered Service, or partially, with regard to certain parts of the delivered Service.
- AskCody does not refund payments for Service Agreements terminated by Purchaser.
10. Termination, Bankruptcy, and Renegotiation
- Upon termination of this Service Agreement, the following sections of this Service Agreement will survive: 2.5, 3.13, 6, 7.5, 8, 9, 10, 12, 13 and 14. Termination does not relieve a party of liability for any breach occurring prior to termination. For avoidance of doubt, upon termination with respect to a Service, AskCody’s obligation to provide such Service terminates, and Purchaser shall immediately cease use of such Service and AskCody’s rights to use the Purchaser Data expire at the termination of the Service Agreement.
11. Terms of Delivery and Late Delivery
- AskCody provides the Service no later than the time stated in the order confirmation. AskCody has the right to deliver before the agreed date, unless the Parties have agreed otherwise. An earlier delivery does not affect the terms of payment.
- Should AskCody expect a delay in the delivery of the Service, AskCody will notify Purchaser, and a new expected delivery date is to be given.
- Should AskCody fail to deliver the Service within 15 days from the delivery date in the order confirmation, and this happens for reasons that the Purchaser is not liable for, the Purchaser is entitled to cancel the delivery by notifying AskCody. The Purchaser obtains no other rights in the case of delay. In all cases, the Purchaser should be notified.
12. Limitation of Liability
- AskCody shall have no liability to Purchaser (or any other person) to the extent that any warranty claim, claim of infringement, or other breach of this Service Agreement is based upon: (i) use of the Service in connection or in combination with equipment, devices, or software not provided by AskCody and such infringement or breach would have been avoided by the use of the Service alone; or (ii) the use of the Service in breach of this Service Agreement.
- REGARDLESS OF WHETHER ANY REMEDY SET FORTH IN THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE, IN NO EVENT WILL ASKCODY OR ANYONE ELSE WHO HAS BEEN INVOLVED IN THE CREATION, PRODUCTION OR DELIVERY OF THE SERVICE BE LIABLE FOR ANY INDIRECT, SPECIAL, PUNITIVE, CONSEQUENTIAL, OR INCIDENTAL DAMAGES (INCLUDING DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, AND THE LIKE) ARISING OUT OF THIS AGREEMENT OR THE USE OF OR INABILITY TO USE THE SERVICE EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO CASE SHALL ASKCODY’S AGGREGATE LIABILITY FOR ANY ONE MATTER ARISING OUT OF THE SUBJECT MATTER OF THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, EXCEED THE AMOUNT ACTUALLY RECEIVED BY ASKCODY FROM PURCHASER UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS PRECEDING THE OCCURRENCE OF SUCH MATTER, AND FOR ALL MATTERS, IN THE AGGREGATE, THE TOTAL AMOUNT ACTUALLY RECEIVED BY ASKCODY FROM PURCHASER UNDER THIS AGREEMENT.
13. Intellectual Property Rights Infringement
- All right, title and interest (including copyright) in and to the Service and underlying software, including any inventions, creations and improvements thereto, whether or not patentable or copyrightable, conceived or made in connection with the performance of AskCody’s obligations hereunder, shall remain in AskCody. Except as stated above, this Service Agreement does not grant Purchaser any intellectual property rights in the Service and AskCody hereby reserves all intellectual property rights in the Service. Purchaser or Users may voluntarily provide to AskCody suggested modifications, error reports, comments or other feedback relating to the Service (“Feedback”) to AskCody. AskCody is not required to hold Feedback in confidence, and Feedback may be used by AskCody for any purpose without obligation of any kind to Purchaser or Purchaser Users. Incorporation of Feedback by AskCody into the Service does not affect the exclusive ownership of the Service and underlying software by AskCody.
- AskCody will defend and indemnify any third party claims against Purchaser that the use of the Service within the scope of this Service Agreement infringes any trade secret, copyright, United States trademark or United States patent granted prior to the date of this Service Agreement.
- Purchaser will defend and indemnify any third party claims against AskCody and its officers, directors, and employees that the use by AskCody of materials provided by Purchaser (or Users) for use in connection with the Service, or for use in customizing or installing the Service, infringes any United States copyright or constitutes misappropriation of a trade secret.
- For the indemnification obligations above to be applicable, the party desiring indemnification (the “Indemnified Party”) must (1) promptly notify the party against which it is seeking indemnification (the “Indemnifying Party”) in writing of any such claim and offer the Indemnifying Party the opportunity to control the defense and all related settlement negotiations, and (2) cooperate with the Indemnifying Party, at the Indemnifying Party’s expense, in defending or settling such claim. Indemnifying Party shall not have any right, without Indemnified Party’s written consent, to settle any such claim if such settlement contains a stipulation to or admission or acknowledgment of, any liability or wrongdoing (whether in contract, tort or otherwise) on the part of Indemnified Party.
- The obligation of the Indemnifying Party to “defend and indemnify” above means the Indemnifying Party will pay any damages, fines, penalties and costs finally awarded against the Indemnified Party in such action or proceeding that are attributable to such claim referred to above, and the cost of a settlement agreed to by the Indemnifying Party; and also that the Indemnifying Party shall also bear all costs of defense that the Indemnifying Party incurs in connection therewith (including reasonable legal fees), and the out-of-pocket expenses of the Indemnified Party in connection with the defense by the Indemnifying Party. The Indemnified Party may also engage its own counsel in connection with such claim or proceeding, but the expense of such attorney shall be borne by the Indemnified Party.
14. Mandatory Law and Alterations in Legislation(Europe)
- If one or more provisions of this Service Agreement is declared to be invalid, illegal or unenforceable in any respect under any applicable law, the validity, legality or enforceability of the remaining provisions contained therein shall not in any way be affected. In such event, the Parties shall use its best efforts to immediately and in good faith negotiate a legally valid provision in replacement, without affecting the spirit of this Agreement.
- Danish law governs this Service Level Agreement, including the Data Processing Agreement, as set forth in DPA article 13. In case a dispute regarding a legal or technical question arises between the Parties, either Party may request an opinion from an independent expert in accordance with the Rules regarding Legal/Technical Opinions in IT cases adopted by the Danish Institute of Arbitration and in force at the time when such proceedings are commenced.
- If the proceedings according to the Rules regarding Legal/Technical Opinions in IT cases are terminated without a settlement, the dispute shall be settled by arbitration administrated by The Danish Institute of Arbitration in accordance with the rules of arbitration procedure adopted by The Danish Institute of Arbitration and in force at the time when such proceedings are commenced.
15. Mandatory Law and Alterations in Legislation (North America)
- The validity, construction and performance of this Service Agreement will be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts applicable to contracts executed in and performed entirely within such Commonwealth, without reference to any choice of law principles of such Commonwealth, and will not be construed in accordance with or governed by the United Nations Convention for International Sales of Goods. With respect to any suit, action or other proceeding arising out of this Service Agreement, or any other transaction contemplated thereby, the parties hereto expressly waive any right they may have to a jury trial and agree that any proceeding hereunder shall be tried by a judge without a jury. The parties agree to exclusive personal jurisdiction and venue of the United States District Court for Massachusetts (and any Massachusetts state court) for that purpose.
- All notices, demands, requests or other communications that may be or are required to be given, served or sent by any party pursuant to this Agreement will be in writing (and shall be deemed to have been duly given upon receipt), will reference this Agreement and shall be sent by mail, express courier, hand delivery, email or fax transmission, addressed as indicated below. Each party may designate by notice in writing a new address to which any notice, demand, request or communication may thereafter be so given, served or sent. Each notice shall be deemed sufficiently given, served, sent and received for all purposes at such time as it is delivered to the addressee (with the return receipt, the delivery receipt or the affidavit of messenger being deemed conclusive evidence of such delivery) or at such time as delivery is refused by the addressee upon presentation. With respect to notice given by email or fax transmission, the recipient shall be obligated to confirm such notice by equivalent means promptly (and in no even less than one business day); in the event that such confirmation has not been received by the sending party within such one business day period, the sending party may thereafter provide notice by the other means permitted hereunder (physical mail/delivery) with reference to the email or fax transmission, and such notice shall (upon delivery in accordance with the above procedures) be deemed to have been given on the date on which such original email or fax transmission was sent.
- This Service Agreement constitutes the entire agreement and understanding of the parties with respect to the subject matter hereof and supersedes any prior or contemporaneous written or verbal communications or representations regarding its subject matter. This Service Agreement may only be modified by an agreement in writing signed by both parties.
- The headings of this Service Agreement are for convenience only and shall have no effect on the meaning or interpretation of this Service Agreement.
- No delay or omission by either party in exercising any right or remedy under this Service Agreement or existing at law or equity shall be considered a waiver of such right or remedy. No waiver by either party of any right or remedy whether under this Service Agreement or otherwise shall be effective unless in writing. If any provision of this Service Agreement is held to be invalid or unenforceable, it will be construed to have the broadest interpretation which would make it valid and enforceable. Invalidity and unenforceability of one provision will not affect any other provision of this Service Agreement.
- This Service Agreement and any license granted hereunder do not include the right to sublicense and Purchaser may not transfer or assign, by operation of law or otherwise, this Service Agreement or any rights without the prior written consent of AskCody. Any attempted assignment in derogation hereof shall be null and void. Assignment or subcontracting by AskCody is permitted without consent of Purchaser. Consent may not be reasonable withheld by Purchaser.
- In making and performing this Service Agreement, AskCody and Purchaser shall act at all times as independent contractors and nothing contained in this Service Agreement shall be construed or implied to create an agency, partnership, joint venture, or employer and employee relationship between AskCody and Purchaser.