ASKCODY TERMS & CONDITIONS
These are our Terms and Conditions, including our Service Level Agreement
GENERAL TERMS AND CONDITIONS, AND SERVICE LEVEL AGREEMENT
Last modified 01.02.22
1. SCOPE OF APPLICABILITY
- Our General Terms & Conditions, Customer Terms of Service and Service Agreement (the "Agreement") is a master contract and agreement that applies to all AskCody Customers and governs our customers' use of the AskCody Platform, including all Subscriptions and Licenses ordered and purchased directly with AskCody, by or through Partners, or by adding future additional features or assigning licenses within the AskCody Platform ("in-app").
- This Agreement on purchasing and using the AskCody Platform therefore applies to all contracts between AskCody and a business Customer, added licenses and features in-app, and approved quotes and order forms, for the use of the AskCody Platform covering Meeting Management and Resource Scheduling, Meeting Services, Visitor Management, Workplace Insights & Analytics (the “Platform”):
- Provided by AskCody, Inc. ("AskCody") to business customers (hereinafter referred to as the “Purchaser”) in the North America, or;
- Provided by AskCody ApS (“AskCody”) to business customers (hereinafter referred to as the “Purchaser”) in Europe and Asia-Pacific.
- During the term of this Agreement, AskCody grants to Purchaser a non-exclusive, non-sublicensable, non-transferable license to the AskCody Platform as described in this Agreement and the applicable order approved by signing the quote, either when licenses are purchased or renewed.
- Purchaser may further expand this Agreement by subscribing to features of the AskCody Platform by activating additional features or assigning and activating licenses in the AskCody Platform in-app. This Agreement will apply to all additional features activated or licenses assigned from within the AskCody Platform in Purchasers AskCody Account, referred to as ‘in-app’ purchases.
- The Agreement consists of the master terms, containing the core legal and commercial terms that apply to the Purchasers Subscription, product specific terms applying to the use of the AskCody Platform and the licenses purchased, and support and service-related terms describing the service level, obligations, and uptime commitment.
- The AskCody Platform is provided as Software as a Service (SaaS) and is billed yearly accordingly to section 7. The order form, being the quote signed and approved when purchasing licenses, adding licenses in-app, or renewing the Subscription, contains all of the details about Purchaser's purchase, including Subscription term, quantity of licenses purchased, Pricing Plan, and the Subscription fees.
- The AskCody Platform is provided as a SaaS solution, meaning neither source nor object code of the software used to provide the Platform is delivered or licensed to the Purchaser or any User, nor are the Purchaser or any User entitled to access such programming code.
2. CONTRACTUAL BASIS
- This Agreement applies unless a separate written agreement has been executed between AskCody and the Purchaser (hereinafter referred to as “the Parties” and each, individually, a "Party" or “AskCody” and “Purchaser”) 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 shall on a regular basis inform each other about any relation, which is considered likely to affect the completion of an efficient contractual process or fulfill the conditions of this Agreement.
- Purchaser’s end users (hereinafter referred to as the “User(s)”) may access and use the Platform 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 Platform or any underlying software except as contemplated by this Agreement. The Purchaser and the Users may not decompile, disassemble, translate, or reverse engineer the Platform; nor remove from the Platform 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 Platform for use in the Platform. “Purchaser Data” means data, information or material uploaded or routed to AskCody, transmitted using the Platform 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 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. For the duration of this 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 Platform to the Purchaser under this Agreement.
- The Parties agree to execute and be bound by the AskCody Data Processing Agreement ("DPA") simultaneously with this Agreement and prior to the performance of any Services or activating the AskCody Platform. The DPA governs the processing of personal data, including Purchaser Data, by AskCody.
- In addition to the agreement on processing purchaser’s data, AskCody may use anonymized data stored on the Platform (and statistics about the use of the Platform) in order to operate and improve the Platform, including for the purpose of verification of compliance with this 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 the Platform 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 may provide Purchaser Data to third party subcontractors to the extent required and for the sole purposes of them performing operation and development services for AskCody, subject to confidentiality agreements between AskCody and such third parties that contain provisions no less onerous than those relating to confidentiality and security in this Agreement. AskCody is not released from its obligations under this Agreement by subcontracting any of its obligations under this Agreement, and AskCody is liable to the Purchaser for the acts and defaults of its subcontractors as fully as if they were the acts or defaults of AskCody.
- During the Term of this Agreement, (i) AskCody will store the Purchaser Data in an industry standard format; (ii) that will allow Purchaser to electronically access the Purchaser Data at all times, for the purpose of ensuring Data Portability. AskCody will be responsible for backing up the Purchaser Data on an agreed schedule, accordingly to the agreed Data Processing Agreement.
- Upon termination or expiration of this Agreement, for any reason, AskCody will provide the Purchaser with the Purchaser data upon the Purchasers request, destroy all copies thereof and upon the Purchaser’s request AskCody will certify the same to the Purchaser in writing. Purchaser’s Data on back-up media may be destroyed or recycled according to AskCody’s retention schedule for such media. Any such retained Purchaser Data shall be maintained in accordance with the confidentiality obligations of this Agreement notwithstanding any earlier expiration or termination thereof.
- AskCody shall not disclose, directly or indirectly, in whole or in part, to any third person, any Purchaser Data, and may only use such Purchaser Data in connection with providing the Platform hereunder or as otherwise provided under this Agreement. AskCody shall only furnish the Purchaser Data to its employees and subcontractors on a need-to-know basis. AskCody shall be responsible for any breach of this Agreement by such persons. AskCody shall use the same degree of care in safeguarding the Purchaser Data as it uses for its own confidential and proprietary information but in no event shall AskCody use less than reasonable care.
- AskCody shall implement and maintain (and require any of its sub-processors, agents and affiliates that have access to Purchaser Data to maintain) commercially reasonable and appropriate administrative, technical, physical, and organizational safeguards designed to: ensure the security and confidentiality of the Platform and Purchaser Data; protect against any anticipated threats or hazards to the security or integrity of the Platform and Purchaser Data; and protect against unauthorized or unlawful access to or use of the Platform and Purchaser Data and against accidental loss or destruction of, or damage to, the Platform and Purchaser Data.
- AskCody shall promptly notify Purchaser of any unauthorized access to any Purchaser Data and of any other material breaches of security.
- AskCody shall reasonably cooperate with Purchaser to ensure that Purchaser is not negatively affected by any such occurrences or to mitigate the effects of same on Purchaser.
- AskCody will review and test such safeguards on no less than an annual basis and shall promptly provide all information related to AskCody's security policies and procedures reasonably requested by Purchaser from time to time.
- AskCody will establish and maintain commercially reasonable administrative, technical, and physical safeguards designed to maintain the security and integrity of the Purchaser Data, which are:
- no less rigorous than those maintained by AskCody for its own information of a similar nature.
- no less rigorous than generally accepted industry standards;
- and required by all applicable federal and state laws, rules and regulations relating to privacy, the protection of personal information and data protection laws and regulations (including, without limitation, applicable security breach notification laws)
3. SUPPORT AND SERVICE PLAN
- AskCody’s Support Services are available according to the chosen Service Plan (Basic Support or Premium Services) by the Purchaser
- AskCody’s support may be reached at chat or email (firstname.lastname@example.org) and is supervised from 8am to 6pm EST and CEST, Monday – Friday
- Support requests received outside of business hours will be collected, but does not commit to responding until the following business day. All emails and Support Tickets are to be answered accordingly to the chosen Support Plan.
- Should the error and/or support issue be concerning Section 9.1 and 9.2 (below) 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.
Name of service plan
4. QUOTES, PURCHASE ORDERS AND ORDER CONFIRMATIONS
- A quote from AskCody is valid for 30 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.
- All quotes from AskCody must be signed and returned to AskCody to ensure acceptance of the quote and our general Terms and Conditions as a Customer.
- Purchase Orders sent to AskCody, must be sent in writing to email@example.com. A Purchase Order shall contain a PO number, reference, the Purchaser attention, contact information, description of service ordered and price.
- The Purchaser cannot modify an order without AskCody’s written consent.
5. TERMS OF ACTIVATION
- AskCody provides the Platform no later than the time stated in the order confirmation described as the Activation Date of the Platform. AskCody has the right to activate the Platform before the agreed date, unless the Parties have agreed otherwise. An earlier activation does not affect the terms of payment or any other agreement between the Parties.
6. TERMS OF PAYMENT
- Payment is due within 30 calendar days after Purchaser's receipt of the invoice.
- If Purchaser fails to pay any undisputed invoice within 30 calendar days after receiving the invoice, AskCody may suspend the use of the Platform until payment is made, or overall terminate the Agreement, providing the Purchaser with a written notice of termination. AskCody may charge the Purchaser interest of two percent (2%) for each commenced month after the last date on which payment was due, on payments not being disputed in good faith.
- Besides interest rate as described in 6.2 (above), if the Purchaser fails to pay within 45 calendar days after receiving the invoice, AskCody is entitled to discontinue the use of the Platform and terminate the Agreement 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 Platform 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. Notwithstanding the foregoing, AskCody shall be responsible for delivering the aforementioned tax obligations to the appropriate taxing authority, to the extent that such amounts are paid by Purchaser to AskCody.
7. SUBSCRIPTION PERIOD, RENEWAL, EXPANSIONS AND PRICE CHANGES
- A Subscription for the AskCody Platform is invoiced for 12 months at a time. The Subscription will automatically renew unless either Party gives the other written notice of termination as described below.
- Renewal date and Terms can always be found in the AskCody Management Portal inside the License Overview and will reflect the date for renewal, based on the date for signing up, activating the AskCody Platform.
- The Subscription period is 12 whole months plus that portion of the initial month where the Platform is first made available to the Purchaser. The Subscription period is automatically renewed for 12 months, when a Subscription period ends. AskCody shall continue to provide the Platform, and the terms of this Agreement shall continue for successive 12-month periods.
- AskCody may change and adjust your subscription fee up to the then-current list price set out in our Pricing Plan at any time before renewal of the Platform, continuing for successive 12-month periods. If this increase applies to you, the Purchaser, you will be notified by email, or other reasonable manner, at least 4 months before the changed fee will take effect, being at the renewal date. You will therefore be notified at least thirty (30) days in advance of the latest termination date, and the increased fees will apply at the start of the next renewal term. If you, the Purchaser do not agree to the price change, Purchaser must actively cancel and terminate the contract, and stop using the Platform before the price change takes effect. Therefore, if you do not agree to this increase, you can choose to terminate your subscription at the end of your then-current term by giving notice according to section 8. CANCELLATION AND TERMINATION OF THE AGREEMENT AND SUBSCRIPTION. If there is a fixed term, discount and price for the Platform offer, that price will remain in force for the fixed term.
- For expansions or adding more licenses, upgrade of Plans or Add-ons, changes will be charged prorated for the current billing period until the next renewal date. On renewal date the total Subscription fee will be charged according to standard renewal terms.
- A Purchaser can always only have one renewal date, being the anniversary date of when the Purchasers account was being activated with AskCody. All changes to the annual Subscription fee are prorated charged and billed with reference to this anniversary date.
8. CANCELLATION AND TERMINATION OF THE AGREEMENT AND SUBSCRIPTION
- The Agreement can be terminated by either Party in writing, with a notice of at least 3 months, which therefore makes the latest day of termination, the last day of the 9th month of the Subscription period.
- The Agreement can be cancelled and terminated completely, with regard to the entire Platform or partially, being downgrading number of licenses, the specific Pricing Plan or Add-ons.
- Unless either Party notifies the other of its intention to discontinue and cancel the Subscription and Agreement, at least 3 months prior to the end of the Subscription term, Purchaser shall pay the Subscription fees for another Subscription Period of 12 months. If notice of discontinuance is received during that 3-month period, the fee shall be paid for the new Subscription period, no matter when the termination actually occurs, and the AskCody Platform will be available for a new Subscription period of 12 months.
- Except as set forth herein, AskCody does not refund payments for Subscriptions terminated by Purchaser.
- Upon termination of this Agreement, the following sections will survive: 2.6, 2.7, 2.11 (for so long as Purchaser Data is retained by AskCody), 5.1, 6.1, 6.2, 6.3, 6.4, 8.2, 8.3, 8.4, 8.5, 9.1-9.9, 10.1-10.5, 12.1, 13.1-13.3, 14.1-14.4, 15.1-15.5 and 16 OR 17.
- Termination does not relieve a party of liability for any breach occurring prior to termination. For avoidance of doubt, upon termination with respect to the Platform, AskCody’s obligation to provide such Platform terminates, and Purchaser shall immediately cease use of such Platform and AskCody’s rights to capture, copy, store, transmit, maintain, access and display the Purchaser Data expires at the termination of the Agreement.
9. SERVICE TARGETS AND OBLIGATIONS REGARDING THE USE OF ASKCODY
- AskCody shall make its Platform available during the Term of this Agreement on a 24/7-365 basis according to the service levels set forth in this Agreement, it being understood that the Platform may be inaccessible or inoperable from time to time for the following reasons:
- Malfunctions of equipment not under the control of AskCody;
- Pre-announced service windows:
- Standardized service windows; periodic or scheduled maintenance procedures which AskCody may undertake from time to time; provided, however, in the event of such periodic or scheduled maintenance procedures, AskCody shall provide Purchaser with at least seven (7) days prior written notice;
- Emergency service windows; In cases that are to be classified as emergencies and which require an extraordinary service window, services or maintenance windows are to be announced immediately, as they are discovered. Emergency service windows are only announced in cases where security issues are discovered.
- Causes beyond the control of AskCody or which are not reasonably foreseeable by AskCody, including, without limitation, documented downtime with Microsoft Azure, or other Sub-Dataprocessor’s (as listed in DPA, Appendix B), interruption or failure of telecommunication or digital transmissions, delays or failures due to Purchaser’s Internet access connections, hostile network attacks, network congestion or other Force Majeure Events.
- Following the responsibility of AskCody to make the Platform and underlying Services available as listed in Section 9.1, AskCody is not responsible for making the Platform available under the following conditions, and unavailability due to them is not included in the calculation of downtime:
- Service windows or scheduled maintenance notified accordingly in advance, cf. 9.1.a
- 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 Platform.
- Reference is given to the article Compatibility Requirements with AskCody, as this is the source of truth for responsibility in terms of compatibility.
- Availability and uptime are measured automatically on status.askcody.com. The AskCody Statuspage is the main communication channel for all issues affecting the operational status of the AskCody Platform and will always be referred to as the source of truth for availability and service targets. This includes both infrastructure and services, referred to as components. These are divided into Europe and North America based on where data is stored and processed accordingly.
- If a given component of the Platform is not available in 99.9% (or higher accordingly to purchased Support and Service Plan) of the time per month, AskCody is obligated to provide the Purchaser a compensation equal to 5% of the monthly subscription fee of the given Plan or Add-on (as presented as a line item on the invoice) multiplied with the relative Impact of the Component and the Weight of the Outage, compensated as Credit notes to be issued to the Customer’s account and utilized against future invoicing.
- The service credit calculation shall apply as from the first complete month of the Subscription. Credit notes provided under this Agreement are the Purchaser’s sole remedy in respect of any claims that the Purchaser may have in respect of downtime or non-availability of the Platform. Any credit notes granted under this Agreement are non- transferrable, have no monetary value and may only be used as credits against future AskCody invoices. To request a credit note, Purchaser must contact AskCody Finance department, within 10 working days of the end of the month in question. If no application is made within 10 working days, then any entitlement to credit notes is waived. To receive credit notes, you must submit a claim by emailing firstname.lastname@example.org with “SLA credit note Request” in the subject line.
- AskCody can in no case, except for gross negligence or willful intent and without otherwise limiting the Purchaser's other contractual rights and remedies under this Agreement, be obligated to provide the Purchaser compensation, compensated as credit notes to be utilized against future invoicing as described in Section 9.5, to be greater than 75% of the monthly Subscription fee relating to the component in question.
- Weighted Impact: Each component in the AskCody platform has a different impact on performance and usability of the Platform as a whole and is thus taken into account when providing compensation. Downtime compensation will always be measured and compensated based on the individual component as listed at Status.AskCody.com and related line item on the invoice.
- A component may be affected by one of three outages, which will be documented on the AskCody Statuspage.
- A Major Outage weighs 100% in the calculation of the compensation, a Partial Outage weighs 30% and Degraded Performance 0%.
- AskCody further represents and warrants that: The Platform will operate in accordance with its published user documentation and specifications at help.askcody.com; and The Platform do not and will not contain any virus or any other contaminant, or disabling devices, including, but not limited to, codes, commands or instructions that may be used to access, alter, delete, remotely access, damage or disable the Platform, other Purchaser software, the Purchaser's networks, or other Purchaser property.
- 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.
- The Purchaser’s exclusive remedy and AskCody’s sole liability in respect of a breach of the warranty under section 9.1(above) of this Agreement shall be for AskCody to correct any material failure of the Platform to perform as promised and documented. In the event that AskCody cannot, after repeated efforts, remedy such failure, AskCody shall refund all payments received from Purchaser hereunder, and Purchaser may terminate this Agreement, with a subsequent termination of Purchaser’s use of the Platform.
- Notwithstanding anything herein to the contrary, any one downtime lasting more than forty-eight (48) hours or five (5) or more unscheduled downtimes lasting at least sixty (60) continuous minutes, in any sixty (60) day period shall each be considered a material breach of this Agreement allowing Purchaser to terminate this Agreement, after which AskCody shall on the next invoice refund to Purchaser the pro rata unused portion of any prepaid Subscription fees.
- AskCody reserves the right to, at any time to develop and improve the features and components in the AskCody Platform.
11. THE PURCHASER'S OBLIGATIONS
- The Purchaser shall be solely responsible for providing, maintaining and ensuring Purchaser's system's compatibility with the AskCody Platform. The Purchaser will use commercially reasonable efforts to prevent unauthorized access to or use of the Platform through Purchaser's account credentials.
- Purchaser agrees not to knowingly access (or attempt to access or authorize any other party to access) the Platform 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 knowingly access (or attempt to access) the Platform 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 Platform (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 they will not knowingly engage in any activity that interferes with or disrupts the Platform (or the servers and networks which are connected to the Platform); knowingly interfere with or knowingly disrupt the Platform; or knowingly take any steps to interfere with or in any manner compromise any security measures with respect to the Platform, or any data or file transmitted, processed, or stored on or through the Platform.
12. UNFORSEEN EVENTS
- AskCody is not responsible for any failure, and thus for breach of the 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. Upon the occurrence of a force majeure event affecting AskCody’s ability to provide the Platform, AskCody shall: a) provide Purchaser with notice as soon as reasonably practicable; and (b) use commercially reasonable efforts to mitigate the impact of the force majeure event on its provision of the Platform.
- Each Party acknowledges that, as a result of this Agreement, it may gain access to certain Confidential Information of the other Party. "Confidential Information" means the order forms and all materials, documentation and information, including, but not limited to, techniques, algorithms and processes and technical, business, and marketing information, designated or marked by the Party disclosing such documentation and information orally, visually or in writing (the "Disclosing Party") as "proprietary" or "confidential" or the like, or that the other Party (the "Receiving Party") knows to be confidential, or should reasonably consider to be confidential due to the nature of the information or under the circumstances of its disclosure, supplied by the Disclosing Party to the Receiving Party in connection with this Agreement.
- During the term of this Agreement and for a period of five (5) years thereafter, each Receiving Party agrees (a) to hold the Disclosing Party's Confidential Information in strict confidence, using the same degree of (but not less than reasonable) care and protection that it exercises with its own Confidential Information of a similar nature; (b) not to directly or indirectly disclose or otherwise make available any Confidential Information of the Disclosing Party to a third party; and (c) not to copy or use the Disclosing Party's Confidential Information for any purpose other than as necessary to fulfil the Receiving Party's obligations or exercise its rights under this Agreement. The Receiving Party will disclose the Disclosing Party's Confidential Information only to its employees and authorized contractors with a need to know such Confidential Information in order to fulfil the Receiving Party's obligations hereunder and who are bound in writing to confidentiality obligations no less restrictive than those in 1 In addition, the Receiving Party may disclose Confidential Information of the Disclosing Party to the extent that such disclosure is approved in writing by the Disclosing Party or is required by law or by the order of a court or similar judicial or administrative body, provided that the Receiving Party notifies the Disclosing Party of such required disclosure promptly and in writing and cooperates with the Disclosing Party, at the Disclosing Party's reasonable request and expense, in any lawful action to contest or limit the scope of such required disclosure.
- The obligations of this Section 13 will not apply to Confidential Information if such information: (a) is publicly available prior to or at the time of disclosure, or later becomes publicly available through no act of the Receiving Party; or (b) was, prior to disclosure hereunder, rightfully known to the Receiving Party (other than in connection with this Agreement) without confidentiality restriction.
14. LIMITATION OF LIABILITY
- AskCody shall have no liability to Purchaser (or any other person) to the extent that any, claim of infringement is based upon: (i) use of the Platform in connection or in combination with equipment, devices, or software not provided or approved by AskCody, and such infringement or breach would have been avoided by the use of the Platform alone; or (ii) the Purchaser's knowing or intentional use of the Platform in breach of this Agreement, where such infringement or breach would not have occurred, but for such use. Reference is given to the article Compatibility Requirements with AskCody, as this is the source of truth for responsibility in terms of compatibility.
- The Parties shall each be liable without limitation for the following:
- in the event of wilful misconduct or gross negligence,
- within the scope of a guarantee taken over by the respective party,
- in the event that a defect is maliciously concealed,
- in case of an injury to life, body or health,
- according to the Product Liability Law.
- Unless the Parties are liable in accordance with Clause 1 and with the exception of data protection violations (including the DPA) or the infringement of third party intellectual property rights (including Article 0), which will both remain uncapped, in no case shall either party’s aggregate liability for any one matter arising out of the subject matter of this Agreement, whether in contract, tort or otherwise, exceed thrice 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.
- If cardinal duties are infringed due to slight negligence and if, as a consequence, the achievement of the objective of this Agreement is endangered, or in the case of a slightly negligent failure to comply with duties, the very discharge of which is an essential prerequisite for the proper performance of this Agreement, the Parties' liability shall be limited to foreseeable damage typical for the Agreement. In all other respects, any liability for damage caused by slight negligence shall be excluded.
15. INTELLECTUAL PROPERTY RIGHTS INFRINGEMENT; INDEMNIFICATIONS
- All right, title and interest (including copyright) in and to the Platform 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 Agreement does not grant Purchaser any intellectual property rights in the Platform 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 Platform (“Feedback”) to AskCody. Feedback may be used by AskCody for any purpose, provided that such Feedback does not identify Purchaser or Users or include any Purchaser Data without Purchaser's prior written consent. Incorporation of feedback by AskCody into the Platform does not affect the exclusive ownership of the Platform and underlying software by AskCody.
- AskCody further undertakes, represents, and warrants to the Purchaser that (i) AskCody owns or otherwise possesses all rights in the Platform provided under the Agreement, including any third-party software included within the Platform, necessary for the use of the Platform, or used in connection with AskCody's performance of any services, and (ii) the Platform does not infringe, contributorily infringe or misappropriate any third-party rights, including, but not limited to, contractual rights, proprietary rights and intellectual property rights (in particular, trademarks, design rights, copyright, patents or rights under the unfair competition law).
- AskCody will defend and indemnify Purchaser and its Users, officers, directors, and employees from and against any third party claims against Purchaser to the extent arising out of or resulting from (i) allegations that the use of the Platform within the scope of this Agreement infringes any trade secret, copyright, trademarks, patents or other intellectual property rights of a third party; (ii) a breach of AskCody's confidentiality or data security obligations hereunder; (iii) AskCody's violation of law, gross negligence, willful misconduct, or fraud; or (iv) AskCody's uncured material breach of this Agreement. Purchaser will defend and indemnify any third-party claims against AskCody and its officers, directors, and employees, that the use by AskCody or materials provided by Purchaser (or Users) for use in relation with the Platform, or for use in customizing or installing the Platform, 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, and/or
- Is not solely monetary in nature; and/or
- Does not include an unconditional release of the Indemnified Party from all liability arising out of such commenced or threatened indemnified claim
- 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 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.
16. GOVERNING LAW AND DISPUTE RESOLUTION FOR CUSTOMERS IN NORTH AMERICA
- The validity, construction and performance of this 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 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.
17. GOVERNING LAW AND DISPUTE RESOLUTION FOR CUSTOMERS IN EMEA and APAC
- If one or more provisions of this 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 Agreement, including the Data Processing Agreement. 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.
- 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, e-mail, express courier, or hand delivery. 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 the recipient shall be obligated to confirm such notice by equivalent means promptly (and in no event more than five business days); in the event that such confirmation has not been received by the sending Party within such five business days period, the sending Party may thereafter provide notice by the other means permitted hereunder (physical mail/delivery) with reference to the email, 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 was sent.
- This 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 Agreement may only be modified by an agreement in writing signed by both Parties.
- The headings of this Agreement are for convenience only and shall have no effect on the meaning or interpretation of this Agreement.
- No delay or omission by either Party in exercising any right or remedy under this 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 Agreement or otherwise shall be effective unless in writing. If any provision of this 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 Agreement.
- This Agreement and any license granted hereunder do not include the right to sublicense and neither Party may transfer or assign, by operation of law or otherwise, this Agreement or any rights hereunder without the prior written consent of AskCody. Any attempted assignment in derogation hereof shall be null and void. Assignment or subcontracting by AskCody is not permitted without consent of Purchaser. Consent under this subsection may not be unreasonably withheld by either party.
- In making and performing this Agreement, AskCody and Purchaser shall act at all times as independent contractors, and nothing contained in this Agreement shall be construed or implied to create an agency, partnership, joint venture, or employer and employee relationship between AskCody and Purchaser.