Terms and Conditions for SaaS Services AGOORA
1. SCOPE OF APPLICATION
1.1 The present General Terms and Conditions are applicable to the main SaaS Agreement AGOORA (“Agreement”) entered between SPOUD AG and the Customer (“Customer”).
1.2 These General Terms and Conditions shall govern conclusion, subject matter and performance of the SaaS Agreement AGOORA services. If there is an inconsistency between any of the provisions in the main body of the Agreement incl. the Schedules and the General Terms and Conditions, the provisions in the main body of the Agreement shall prevail.
1.3 Modifications or amendments of these General Terms and Conditions must be confirmed in writing by the purchaser.
2.1 Services means the subscription AGOORA services provided by SPOUD to the Customer under this Agreement via Offer or via agoora.com or any other website notified to the Customer by SPOUD from time to time, as more particularly described in the documentation, such as handbook, manuals etc. (hereinafter “Documentation”). See https://docs.agoora.com/
2.2 SPOUD shall, during the Subscription Term, provide the Services and make available the Documentation to the Customer on and subject to the terms of this Agreement.
2.3 SPOUD shall use Best Efforts to make the Services available 24 hours a day, seven days a week, except for the time during maintenance windows (updates, upgrades or other modifications) or scheduled downtimes.
2.4 SPOUD will, as part of the Services and at no additional cost to the Customer, provide the Customer with SPOUD’s basic contractual support services. The Customer may purchase enhanced support or consulting services separately at SPOUD’s then current rates.
3. CUSTOMER DATA
3.1 The Customer shall own all right, title and interest in and to all of the Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data. The Customer consents to SPOUD’s use of the Customer Data to provide the Services under the Agreement.
3.2 In the event of any loss or damage to Customer Data, the Customer’s sole and exclusive remedy shall be for SPOUD to use Best Efforts to restore the lost or damaged Customer Data from the latest backup of such Customer Data available to SPOUD. SPOUD shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party.
3.3 If SPOUD processes any personal data on the Customer’s behalf when performing its obligations under this Agreement, the parties record their intention that the Customer shall be the data controller and SPOUD shall be a data processor and in any such case:
(a) the Customer acknowledges and agrees that the personal data may be transferred or stored outside the EEA or the country where the Customer and the Authorised Users are located in order to carry out the Services and SPOUD’s other obligations under this Agreement;
(b) the Customer shall ensure that the Customer is entitled to transfer the relevant personal data to SPOUD so that SPOUD may lawfully use, process and transfer the personal data in accordance with this Agreement on the Customer’s behalf;
(c) the Customer shall ensure that the relevant third parties have been informed of, and have given their consent to, such use, processing, and transfer as required by all applicable data protection legislation;
(d) SPOUD shall process the personal data only in accordance with the terms of the Agreement and these General Terms and Conditions and any lawful instructions reasonably given by the Customer from time to time; and
(e) each party shall take appropriate technical and organisational measures against unauthorised or unlawful processing of the personal data or its accidental loss, destruction or damage.
4. THIRD PARTY PROVIDERS
4.1 The Customer acknowledges that the Services may enable or assist it to access the website content of, correspond with, and purchase products and services from third parties. The Customer does so solely at its own risk. The Customer acknowledges that the Service may link to third party websites, third party services or feeds that are connected or relevant to the Service. Any link from the Service does not imply any SPOUD endorsement, approval or recommendation of, or responsibility for, those websites, services or feeds or their content or operators. To the maximum extent permitted by law, SPOUD excludes all responsibility or liability for those websites, services or feeds.
4.2 Through the use of the Service, the Service interoperates with a range of third party service features. SPOUD does not make any warranty or representation on the availability of those features and the Customer is not entitled to any refund, discount or other compensation from SPOUD in such case.
5. SPOUD’S OBLIGATIONS
5.1 SPOUD undertakes that the Services will be performed substantially in accordance with the Documentation and with reasonable skill and care.
5.2 The undertaking at clause 5.1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to SPOUD’s instructions, or modification or alteration of the Services by any party other than SPOUD or SPOUD’s duly authorised contractors or agents. If the Services do not conform with the foregoing undertaking, SPOUD will, at its expense, use Best Efforts to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer’s sole and exclusive remedy for any breach of the undertaking set out in clause 5.1. Notwithstanding the foregoing, SPOUD:
(a) does not warrant that the Customer’s use of the Services will be uninterrupted or error-free; or that the Services, Documentation and/or the information obtained by the Customer through the Services will meet the Customer’s requirements; and
(b) is not responsible or liable for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities caused by third parties.
5.3 The Agreement and the Term and Conditions shall not prevent SPOUD from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under the Agreement and the present Term and Conditions.
5.4 SPOUD warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this Agreement.
6. CUSTOMER’S OBLIGATIONS
The Customer shall:
(a) provide SPOUD with:
(i) all necessary co-operation in relation to this Agreement; and
(ii) all necessary access to such information as may be required by SPOUD; in order to provide the Services, including but not limited to Customer Data, security access information and configuration services;
(b) comply with all applicable laws and regulations with respect to its activities under this Agreement;
(c) carry out all other Customer responsibilities set out in the Agreement in a timely and efficient manner. In the event of any delays in the Customer’s provision of such assistance as agreed by the parties, SPOUD may adjust any agreed timetable or delivery schedule as reasonably necessary;
(d) ensure that the Authorised Users use the Services and the Documentation in accordance with the terms and conditions of this Agreement and shall be responsible for any Authorised User’s breach of this Agreement;
(e) obtain and shall maintain all necessary licences, consents, and permissions necessary for SPOUD, its contractors and agents to perform their obligations under this Agreement, including without limitation the Services.
7. TEMPORARY SUSPENSION
7.1 SPOUD may suspend the Customer’s or any Authorized User’s right to access or use any portion or all of the Services immediately upon prior notice to SPOUD if SPOUD determines:
(a) the Customer’s or an Authorized User’s use of or registration for the Services
(i) poses a security risk to the Services or any third party,
(ii) may adversely impact the Services or the systems or content of any other customer of SPOUD,
(iii) may subject SPOUD or any third party to liability, or
(iv) may be fraudulent;
(b) the Customer is, or any Authorized User is, in breach of the Agreement, including if the Customer is delinquent on its payment obligations for more than 15 Business Days; or
(c) the Customer has ceased to operate in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or becomes the subject of any bankruptcy, reorganization, liquidation, dissolution or similar proceeding.
7.2 If SPOUD suspends the Customer’s right to access or use any portion or all of the Services:
(a) the Customer remains responsible for all fees and charges it has incurred through the date of suspension;
(b) the Customer remains responsible for any applicable fees and charges for any Services to which it continues to have access, as well as other applicable fees and charges, after the date of suspension; and
(c) SPOUD will not erase any of the Customer Data as a result of the Customer’s suspension, except as specified elsewhere in this Agreement.
7.3 SPOUD’s right to suspend the Customer’s or any Authorized User’s right to access or use the Services is in addition to SPOUD’s right to terminate this Agreement.
8.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under this Agreement. A party’s Confidential Information shall not be deemed to include information that:
(a) is or becomes publicly known other than through any act or omission of the receiving party;
(b) was in the other party’s lawful possession before the disclosure;
(c) is lawfully disclosed to the receiving party by a third party without restriction on disclosure;
(d) is independently developed by the receiving party, which independent development can be shown by written evidence; or
(e) is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.
8.2 Each party shall hold the other’s Confidential Information in confidence and, unless required by law, not make the other’s Confidential Information available to any third party, or use the other’s Confidential Information for any purpose other than the implementation of this Agreement.
8.3 Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.
8.4 The Customer acknowledges that details of the Services, and the results of any performance tests of the Services, constitute SPOUD’s Confidential Information.
8.5 SPOUD acknowledges that the Customer Data is the Confidential Information of the Customer.
8.6 The above provisions of this clause 8 shall survive termination of this Agreement, however arising.
9.1 The Customer shall defend, indemnify and hold harmless SPOUD against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Customer’s use of the Services and/or Documentation, provided that:
(a) the Customer is given prompt notice of any such claim;
(b) SPOUD provides reasonable co-operation to the Customer in the defence and settlement of such claim, at the Customer’s expense; and
(c) the Customer is given sole authority to defend or settle the claim.
9.2 During the term of this Agreement, SPOUD shall defend any third party claim against the Customer subject to the notice provisions in this section 9 to the extent such claim alleges that the Services or the Documentation directly infringes upon any IP Right of a third party effective as of the Effective Date within the territory of the European Union, EFTA member state countries or Switzerland (the “IP Claim”). SPOUD shall pay the Customer the damages, costs, and expenses (including reasonable legal fees) finally awarded by a court of competent jurisdiction against the Customer, or agreed to in a written settlement agreement signed by SPOUD, directly attributable to the IP Claim and not exceeding the amount of the Subscription Fee in total.
9.3 Following notice of an IP Claim or any facts which may give rise to an IP Claim, SPOUD may, at its sole discretion, (a) procure for the Customer a license to continue using the Services, (b) modify the Services so that they become non-infringing or, if such remedies are not reasonably available, (c) terminate this Agreement on 10 Business Days’ notice to the Customer without any additional liability or obligation to pay damages or other additional costs to the Customer.
9.4 The indemnification obligations set forth in this section shall only apply if:
(a) the Customer notifies SPOUD of an IP Claim promptly upon learning of or receiving it;
(b) the Customer provides SPOUD with reasonable assistance requested by SPOUD, for the defence and settlement of the IP Claim;
(c) the Customer provides SPOUD with the exclusive right to control and the authority to settle any IP Claim, including, without limitation, conducting the lawsuit in its own name or on behalf of the Customer, conducting all procedural acts, and/or giving instructions to the Customer, provided, however, that the Customer shall have the right to participate in the matter at its own expense; and
(d) the Customer does not admit fault or liability of SPOUD or of itself.
9.5 SPOUD shall have no obligation to indemnify, and the Customer shall indemnify SPOUD for any damages relating to an IP Claim if such IP Claim is caused by, or results from:
(a) the Customer’s combination or use of the Services with other software or services, products or data, if such claim or action would have been avoided by an omission of such combination or use;
(b) a modification of the Services or Documentation by anyone other than SPOUD or its sub-contractors; OR
(c) the Customer’s use of the Services or the Documentation in a manner contrary to the instructions given to the Customer or not in accordance with the provisions of this Agreement.
9.6 The indemnification rights and obligations according to this section are SPOUD’s sole and exclusive obligations, and the Customer’s sole and exclusive remedies, with respect to an IP Claim.
10. LIMITATION OF LIABILITY
10.1 Subject to wilful intent, gross negligence and compulsory law and unless expressly otherwise stipulated in the Agreement, SPOUD shall have no liability (including any liability for the acts or omissions of its employees, agents and sub-contractors) for any direct or indirect damages in connection with the Agreement, including any loss of use, interruption of business, lost profits, or any special, incidental, or consequential damages of any kind, regardless of the form of action whether in contract, tort (including negligence), strict products liability, or otherwise, even if the Customer has been advised of the possibility of such damages.
10.2 In any case, the limit of damage compensation under the breached agreement shall be equal to maximum twelve monthly payments of the relevant individual agreement.
11. FORCE MAJEURE
11.1 SPOUD shall have no liability to the Customer under this Agreement if it is prevented from or delayed in performing its obligations under this Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of SPOUD or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of SPOUDs or sub-contractors, provided that the Customer is notified of such an event and its expected duration.
12. GOVERNING LAW
This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of Switzerland. The Convention on Contracts for the International Sale of Goods (CISG) is excluded.
Each party irrevocably agrees that the ordinary courts at SPOUD’s domicile in Switzerland and, at SPOUD’s choice, the ordinary courts at the Customer’s domicile of shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).
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