General Terms and Conditions for AskCody
Table of Contents
1. Scope of Applicability
- Our General Terms, Conditions, Customer Terms of Service and Service Agreement (the “Service Agreement”) is a master contract and agreement that governs our customers' use of the AskCody Platform, including all licenses and subscriptions ordered and purchased directly with AskCody or by adding additional features or assigning licenses within the AskCody Platform ("in-app").
- This Agreement on terms and conditions of purchasing and using the AskCody Platform, therefore apply to all contracts, 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 “Services”):
- provided by AskCody, Inc. ("AskCody") to business customers (hereinafter referred to as the “Purchaser”) in the United States; or
- provided by AskCody ApS (AskCody) to business customers (hereinafter referred to as the “Purchaser”) in Europe and Asia.
- During the term of this Subscription, AskCody will provide Purchaser and its users access to use 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 subscribe to features of the AskCody Platform by activating additional features or assigning and activating licenses in the AskCody Platform. This agreement will apply to all additional features activated or licenses assigned from within the AskCody Platform in Purchasers AskCody Account.
- The Service 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.
- AskCody Services and solutions are provided as Software As A Service (SaaS) and are billed yearly accordingly to Section 9. The order form, being the quote signed and approved when purchasing licenses, adding licenses in-app, or renewing your subscription, contains all of the details about Purchaser's purchase, including subscription term, quantity of licenses purchased and the subscription fees.
- The Service is provided as a SaaS solution, meaning 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 underthis 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 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 party subcontractors to the extent required and for the sole purposes of them to performing operation and development services for AskCody for technical purposes, 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.
- 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.
- AskCody will use commercially reasonable efforts to maintain the security and integrity of the Purchaser AskCody will be responsible for backing up the Purchaser Data. 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 Targets 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, documented downtime with Microsoft Azure, 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
- 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 warrants that the Services shall:
- operate substantially in accordance with its published user documentation and specifications; and
- comply with all applicable laws and regulations.
- AskCody reserves the right at any time to develop and improve the Services, features and components in the AskCody Platform.
- 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.
- The Purchaser’s exclusive remedy and AskCody’s sole liability in respect of a breach of the warranty under Section 3, 10A of this Service Agreement shall be for AskCody to correct any material failure of the Service to perform as promised. 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.
4. Support and Service Plan
- AskCody’s Support Services are available accordingly to the chosen Service Plan (Basic Support or Premium Services)
- 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 accordingly to the chosen Support Plan.
- Should the error and/or support issue be concerning Section 6.B, 3.6.C 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. Quotes, Purchase Orders, 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 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 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. Expansions, Renewal, Termination, and Price Changes
- A subscription for the AskCody Services is invoiced for 12 months. The subscription will automatically renew unless either party gives the other written notice of termination as describes below.
- Renewal date 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 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, the term and period is automatically renewed for 12 month. 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 3 months prior to the end of the then-current Service period. If notice of discontinuance is not received during that 3-month period, the fee of the Services shall be paid for the new period of 12 month, 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.
- AskCody may change the price of the Services at any time before renewal of the Service continuing for successive 12-month periods. The Purchaser will be notified by email, or other reasonable manner, at least4 months before the price change, being at the renewal date. If Purchaser does not agree to the price change, Purchaser must actively cancel and terminate the contract, and stop using the Services before the price change takes effect. If there is a fixed term and price for the Service offer, that price will remain in force for the fixed term.
- For expansions or changes to licenses, change of Pricing 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 charges accordingly 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 is prorated charged and billed with reference to this anniversary date.
10. Termination of the Agreement
- 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 Activation
- AskCody provides the Service no later than the time stated in the order confirmation described as 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 delivery or activation does not affect the terms of payment or any other agreement between the parties.
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.
- The Parties shall be mutually liable without limitation:
- in the event of willful 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.
- If cardinal duties are infringed due to slight negligence and if, as a consequence, the achievement of the objective of this Service 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 Service 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.
- Unless the Parties are liable in accordance with Clause 12.2 and with the exception of data protection violations or the infringement of third party intellectual property rights, 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.
- AskCodyfurther undertakes, represents, and warrants to the Purchaser that AskCody owns or otherwise possesses the rights in the Services provided under the Agreement and that they do not infringe 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 any third party claims against Purchaser that the use of the Service within the scope of this Service Agreement infringes any trade secret, copyright, trademarks or patents 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, 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 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 and the Indemnifying Party must have regard to the advice, opinions and recommendations given by that separate counsel.
14. Governing Law and Dispute Resolution for Customers in EU
- 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. Governing Law and Dispute Resolution for Customers in 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.