Roccai General SaaS Terms and Conditions
Version 1.0 (2023)
Definitions
In addition to any definitions set out elsewhere in the Agreement, defined terms shall have the meaning set out below:
Agreement means the SaaS Service Order, these General Terms, and the appended data processing agreement in Schedule 1.
Authenticated Users means those users authorized by Customer to make use of the Customer’s Services who require a personal login to the Roccai Platform.
Automatic Generation of Swipe Modules means automatic generation of Roccai Swipe modules on the Roccai Platform through the use of machine learning models.
Clause means the clauses of these General Terms.
Customer means the legal entity specified as such in the SaaS Service Order.
Deliverables means any applications, iframes, dashboards or other software and Updates thereto delivered by Roccai as part of the Services.
Documentation means the description available on https://roccai.com/documentation/ as amended by Roccai from time to time with details on the Services, Support, and technical prerequisites.
End Users means the physical persons making use of the Customer’s Roccai Swipe modules.
General Terms means these Roccai General Terms and Conditions.
Monthly Service Fees means the monthly fees for the applicable Service Plan payable throughout the Term.
Onboarding Fee means the initial one-time fee for the training of Superusers as set out in the SaaS Service Order.
Parties mean Customer and Roccai collectively.
Party means either Customer or Roccai.
Roccai means Roccai ApS.
Roccai IP Rights means copyrights, designs, patents, trademark rights, domain names, any other proprietary intellectual property rights, and know-how to the Services, including the software, any Updates, and the Documentation.
Roccai Platform means the management tool provided as part of the Services, which depending on the Service Plan, grants access to business intelligence, customizing Roccai Swipe solutions, carrying out Service Plan upgrades, and accessing any data collected through Customer’s use of the Services.
Roccai Swipe means the customizable swipe-module included as the core of the Services.
Services means the Software-as-a-Service services and functions included in the Service Plan, which may include [an amount of Roccai Swipe solutions, access to certain features on the Roccai Platform, Automatic Generation of Swipe Modules, Support, as well as maintenance, and underlying server infrastructure] provided by Roccai in accordance with these General Terms and the Documentation.
Schedule means a schedule to the Agreement.
SaaS Service Order means the order confirmation sent to the Customer by Roccai based on the order made by the Customer to Roccai.
Service Plan means the Roccai service plan and the features and services included therein, which the Customer subscribes to as set out in the SaaS Service Order.
Super Users means Authenticated Users who have been so appointed by the Customer.
Support means the software support operated and made available by Roccai, as further described in Clause 7.
Update means software or patches, fixes, and/or enhancements to the software (including Deliverables) created and released by Roccai as part of the Services.
Services
1 Use of the Services
1.1 Roccai grants Customer a non-transferable and non-exclusive right to use the Services subject to the terms and conditions set out in the Agreement and Customer’s payment of all applicable fees under the Agreement.
1.2 Customer may only use the Services for the Customer’s business purposes in accordance with these General Terms (including Clause 4) and the Documentation. The Customer may not decompile, modify, reverse engineer, or create derivative works of the Services.
1.3 Customer agrees not to transfer, sublicense, lease, lend, or in any other way make available the Services in whole or in part to a third party.
2 Licensing of Third-Party Software
2.1 The Services are partially composed of certain open-source software components as set out in the Documentation, which is subject to the terms and conditions of the respective open-source license agreements. Usage of the open-source components is subject to the terms and conditions of the respective open-source license agreements.
3 Terms of Services
3.1 The Customer may access the Roccai Platform for the purpose of building and operating Roccai Swipe modules and accessing business intelligence and data concerning individual End Users. As part of Customer’s SaaS Service Plan, Customer may use the Automatic Generation of Swipe Modules.
3.2 Customer may upgrade the Service Plan in the Roccai Platform. Roccai will send a new SaaS Service Order to the Customer upon confirmation. The corresponding changes to the Monthly Fee shall accrue from the date thereof.
3.3 Customer accepts that Roccai makes Updates. Roccai shall inform Customer of major Updates. Roccai has no obligation to provide or procure any Updates, except such Updates necessary to keep the Services in an operational state.
4 Authenticated Users
4.1 Customer provides Roccai with the e-mail addresses of all Authenticated Users who shall have access to the Services on behalf of the Customer. Customer is solely responsible for ensuring which Authenticated Users have access to the Roccai Platform and thus the data, including personal data, accessible therein.
4.2 Roccai will, upon request, provide each individual Authenticated User with authentication for the Services only to be used by that individual. Customer is responsible for the users’ authentications and all activity carried out by its Authenticated Users’ accounts. Customer and its Authenticated Users must keep authentications confidential, and Customer undertakes to immediately shut down accounts of Authenticated Users who should no longer have access to the Services. Customer must notify Roccai immediately in case of any possible misuse of authentications or any security incident related to the Services.
5 Access to the Services
5.1 To use the Services, running the latest version of a common, generally approved operating system, i.e. Microsoft Windows, Mac OS, iOS, Linux, and Google Android, is required. Further technical requirements may be set out in the Documentation.
5.2 As set out in the Documentation, Customer may either embed the Roccai Swipe solutions in Customer’s chosen websites or display their Roccai Swipe modules in separate URLs customizable as set out in the applicable Service Plan.
5.3 The Customer’s Authenticated Users may access the Roccai Platform through a web browser. To use the Roccai Platform, running the latest version of a common, generally approved web browser, i.e. Google Chrome, Mozilla Firefox, and Safari, is required as set out in the Documentation.
6 Availability
6.1 Roccai shall provide the Services in accordance with the service description provided in the Documentation.
6.2 Customer is aware of and accepts that planned, as well as unplanned, downtime can occur and that Roccai does not guarantee a specific uptime, operational stability, response time, or performance.
7 Support
7.1 Roccai provides a thorough introduction to the Roccai Platform and training for a number of Super Users as set out in the Service Plan against an Onboarding Fee.
7.2 Roccai shall provide Support to Superusers only through a support chat as the single point of contact for the Customer for all service requests regarding the Services. All communication regarding Support and maintenance shall take place to the support chat available through the Roccai Platform within the opening hours provided in the Service Plan.
7.3 The language of communication shall be English.
7.4 Roccai shall use its best endeavors to meet any target response time set out in the Service Plan.
8 Customer Undertakings
8.1 The Customer is responsible for publishing and sharing active Roccai Swipe modules by either embedding into websites of their choice or communicating URL links. The assistance of any kind from Roccai in this connection shall be subject to separate agreement and payment.
8.2 It is a condition for the provision of the Services that the Customer further performs the following obligations:
- Customer shall ensure and warrants to Roccai that it has all rights necessary to any data inserted into the Roccai Platform and shared in any Roccai Swipes;
- Customer shall follow all reasonable instructions given by Roccai in respect of use of the Services; and
- Customer shall anonymize all data which have been collected or generated through the use of the Services, including personal data of End Users, and deliver such anonymized data to Roccai in accordance with the data processing agreement in Schedule 1.
8.3 Customer undertakes to ensure that no personal data or confidential information is provided in the Automatic Generation of Swipe Modules, as Roccai cannot know how such data is processed or whether such data is shared with third parties. Customer further undertakes to ensure that it has the right to share all information provided in the Automatic Generation of Swipe Modules. Customer may at all times refrain from using the Automatic Generation of Swipe Modules. Customer shall indemnify and hold Roccai harmless from any claim that is caused by Customer’s use of the Automatic Generation of Swipe Modules.
8.4 Any costs related hereto shall be borne solely by the Customer and Customer shall cover any additional costs of Roccai incurred by Customer not fulfilling its obligations.
9 Exclusions
9.1 Roccai’s Services, including Support, do not cover the following or in the following situations:
- hardware, software, or other components which are not part of the Services;
- errors or problems caused by or contributed to by hardware, software, or other components which are not provided by Roccai;
- errors or problems caused by Customer (or an Authenticated User in Customer’s stead) not following Roccai’s instructions;
- if Customer has rejected the implementation of any Update;
- errors or problems caused by third parties not acting on behalf of Roccai; or
- Customer not fulfilling its obligations in this Agreement, including as set out in Clause 8.
Common Terms
10 Price and Payment
10.1 All fees are specified in the SaaS Service Order.
10.2 All fees are exclusive of VAT and other applicable taxes which shall be paid by Customer.
10.3 If not otherwise agreed in the SaaS Service Order, Roccai invoices the Customer annually in advance. All invoices issued by Roccai shall be paid by the Customer within 15 (fiftheen) days from the date of the invoice.
10.4 Late payments will incur interest at a rate of 2% (two per cent) per month until payment is received.
10.5 If not otherwise agreed, the fees shall be subject to indexation every year on 1 January in accordance with changes in the preceding year (from 1 April to 1 April) in the Harmonised Index of Consumer Prices (HICP) for the European Union (currently, price index 119.32 for 2022, full data available on https://ec.europa.eu/eurostat/databrowser/view/prc_hicp_aind/default/table?lang=en). If the change in the index is negative, no adjustment will be made.
11 Confidentiality
11.1 Each Party shall maintain the confidentiality of the other Party’s confidential information. In particular, Customer shall keep the terms of this Agreement, any Deliverables, and all other information obtained by the Customer, its employees or advisors in connection with this Agreement confidential.
11.2 The Customer may provide access to the Agreement to a third-party providing services to Customer, provided such third party is made aware of the confidentiality obligations under this Agreement and provided the Customer imposes similar confidentiality obligations on such third party. Customer shall be liable for any misappropriation or disclosure of any of the materials set out above by such third party in breach of this Agreement.
11.3 Upon termination of this Agreement, for whatever reason, the Parties shall immediately return or irrevocably delete all documents or other materials, which have been received from the other Party, except (i) information, that in accordance with statutory requirements, must be maintained for archiving purposes, (ii) data set out in Clause 12.6, or (iii) personal data subject to the data processing agreement in Schedule 1. Upon the other Party’s request, each Party shall confirm the deletion in a written statement to the other Party.
11.4 Roccai shall not in any way be restricted from using any general and specific know-how obtained through the collaboration with the Customer.
12 Customer data
12.1 Customer data stored via the Services is the property of Customer.
12.2 Roccai is entitled to process Customer’s data for the purpose of Customer’s use of the Services, including through the Customer’s upload to the Roccai Platform. Customer is solely responsible for ensuring which data is made available to Roccai and made public through sharing of Roccai Swipe modules. If using the Automatic Generation of Swipe Modules, parts of the data uploaded by the Customer will be processed for creating Customer-specific Roccai Swipe modules but must also be expected to be used for training the underlying third-party language model.
12.3 Each Party shall retain ownership to its own or its licensors’ intellectual property rights. Customer shall indemnify and hold Roccai harmless from any claim that Customer data infringes third-party intellectual property rights or infringes applicable law.
12.4 Upon request, Customer is entitled to have Roccai delete Customer’s data from Roccai’s systems. Unless explicitly agreed otherwise, Customer is to pay Roccai to do so.
12.5 Roccai shall protect any Customer data, including personal data and any data confidential in nature in accordance with Clause 11, in accordance with the data processing agreement in Schedule 1.
12.6 Disregarding Clause 11 and this Clause 12, Customer accepts that Roccai may keep and use all Customer data, including anonymized data which have been delivered to Roccai by the Customer in accordance with Clause 8.2, for the purposes of improving the Services or other of Roccai’s offerings. For such use, all Customer Data must undergo an anonymization process designed to ensure that no link to the Customer name and no personal data is processed by Roccai in pursuit of Roccai’s own purposes. Customer understands that Roccai may not be able to identify information from the Customer once stored in Roccai’s systems for Roccai’s purposes.
13 Personal data
13.1 Customer must comply with applicable data protection law and shall be considered data controller for any personal data processed under this Agreement.
13.2 Any processing of personal data carried out by Roccai on behalf of Customer is done solely pursuant to Customer’s instructions. Customer explicitly undertakes to ensure that it has the necessary legal basis for processing personal data of End Users. The Parties have agreed on the data processing agreement in Schedule 1, which stipulate the rights and obligations of the Parties regarding processing of personal data.
13.3 The Customer undertakes to specifically instruct Roccai on a case-by-case basis to apply specific restrictions as set out in clause 7.5 of the data processing agreement in Schedule 1 if any Roccai Swipe module is designed to process special categories of data as set out in article 9 of the general data protection regulation (679/2016).
14 Limitation and Exclusion of Liability
14.1 Roccai shall not be liable for any of the following losses or damage (whether such losses or damage were foreseeable, known or otherwise):
a. loss of revenue or any other loss of business;
b. loss of actual or anticipated profit;
c. damage or corruption to or loss of data or programmes and any consequences of not having access to data or programmes;
d. loss of goodwill;
e. loss of data;
f. loss of anticipated savings;
g. business interruption;
h. any losses resulting from the exclusions mentioned in Clause 9 or the use of the Automatic Generation of Swipe Modules;
i. subject to Clauses 15.2-15.7 any loss related to third-party claims of whichever nature, including claims related to the delay of implementation or upgrading projects; or
j. any indirect, special, or consequential loss.
14.2 The total aggregate liability of Roccai in any one calendar year under this Agreement, including by way of tort and indemnity in any form, shall in no event exceed the Monthly Fees paid in the 12 months leading up to such liability event. If no fees have been paid, Roccai accepts no liability.
14.3 The Services use artificial intelligence and machine learning for the Automatic Generation of Swipe Modules to generate output based on input provided by the Customer. In no event shall Roccai be liable for the accuracy of, or rights to any input provided by the Customer. Further, Customer understands and accepts that output automatically generated by the Services is generated by machine learning and may not be correct. Roccai makes no representation or warranty and accepts no responsibility as to the accuracy of the output automatically generated by the Services, and Roccai shall, therefore, in no event be liable for Customer’s reliance on any output automatically rendered by the Services.
15 Intellectual Property Rights
15.1 Any Roccai IP Rights shall remain solely with Roccai.
15.2 If a third-party claims that Roccai or the Services infringe third-party rights, Customer shall immediately inform Roccai in writing, and Roccai shall take over the defence of the claim. Roccai shall, at its cost, have full control of any proceedings arising out of any claim of infringement of third-party rights. Customer shall give Roccai all reasonable assistance in respect of any such proceedings. Customer may not make any admission as to liability and shall not agree to any settlement or compromise of any action without the prior written consent of Roccai.
15.3 Roccai agrees to indemnify Customer against any damages and costs imposed on Customer by a court of competent jurisdiction or any settlement sum approved by Roccai as a result of a claim by a third party that the use by Customer of the Services in accordance with the terms of this Agreement infringes the intellectual property rights of that third party, provided that such indemnity shall only apply if and to the extent that Customer has not been provided with a workaround solution or an alternative license obtained by Roccai from such third party.
15.4 If Roccai cannot, on commercially reasonable terms, provide a workaround or an alternative license, then Roccai can terminate the Agreement with respect to the affected parts of the Services (as relevant). Customer shall refrain from using the affected parts of the Services, and Roccai shall not charge further ongoing fees to the affected parts of the Services.
15.5 The foregoing rights of Customer shall be the sole remedies available to Customer in the event of third-party infringement claims.
15.6 Roccai shall not be liable for indemnifying Customer for any costs or damages if the infringement claim (i) is based on the use of an amendment, change, or modification made to the Services by any person other than Roccai or any supplier to Roccai; (ii) is based on a combination of the Services with other systems not provided by Roccai; (iii) on the Services not being used in accordance with the Documentation; (iv) could have been avoided or otherwise eliminated by the use of an Update which Customer has rejected; or (v) related to the use of the Automatic Generation of Swipe Modules.
15.7 If Customer becomes aware of any infringement or potential infringement of Roccai IP Rights, it shall promptly notify Roccai in writing.
16 Term and Termination
16.1 The Agreement shall commence on the date of the SaaS Service Order.
16.2 The Agreement is automatically renewed:
– monthly until Customer terminates this Agreement with effect on the last day of such a monthly period by giving written notice before the next payment to hello@roccai.com.
– annually until Customer terminates this Agreement with effect on the last day of such an annual period by giving 1 month’s written notice before the next payment to hello@roccai.com.
16.3 Roccai may terminate the Services with effect on the last day of a month by giving three (3) months’ written notice.
16.4 If Customer or Roccai is in material breach of any of its obligations under this Agreement and such breach is not remedied within 30 days after the receipt of a written notice hereof, or if the breach is not curable, the non-breaching party shall, without further notice, be entitled to terminate the Agreement with immediate effect.
16.5 In case of termination of this Agreement, irrespective of the reason, therefore, Customer shall immediately cease any use of the Services and be under an obligation to delete all material related hereto, including Documentation, and to confirm in writing to Roccai that such deletion has happened. In case of termination due to Customer’s material breach, including Customer’s default, Customer shall not be entitled to receive repayment of any of the payments made under the Agreement.
16.6 All obligations of the Parties under Clauses 15 and 11 shall survive the termination of the license granted under this Agreement in addition to those Clauses that, in accordance with their content, are of a surviving nature.
17 Notifications of Changes
17.1 Roccai may change these General Terms or the data processing agreement in Schedule 1 from time to time. The current version of these General Terms and the data processing agreement in Schedule 1 are available on Roccai’s website, at link and link. Roccai will notify the Customer directly of all material changes with reasonable notice (in no event less than one (1) month). If such material changes have material adverse effects for the Customer, the Customer will have thirty (30) calendar days from the notification date to object to the change in writing to Roccai. The objection of the Customer must be well-founded. Such objection will entitle the Customer to terminate this Agreement with effect from the date of the material changes. The absence of any objections from the Customer shall be deemed consent to the change.
17.2 Roccai shall notify Customer regarding developments which could significantly impede Roccai’s current or future ability to provide the Services.
18 Use of Sub-processors
18.1 Roccai shall be responsible for its use of any sub-processors as if Roccai had performed such services itself.
18.2 Entering into this Agreement, Roccai makes use of the sub-processors set out in the Documentation, all of which Customer hereby approves. For underlying cloud infrastructure, Roccai uses Google. Customer accepts the standard terms of the chosen sub-processors for the underlying cloud infrastructure in effect occasionally.
18.3 Irrespective of the above, Roccai may freely perform further outsourcing or chain outsourcing of services.
19 Force Majeure
19.1 Neither Party shall be liable for failure or delay in performance of its responsibilities hereunder when such failure or delay is caused by wars, riots, uprisings, general strikes or labour disturbances, fire, flooding, natural disasters, monetary restrictions, trade embargoes or export restrictions, epidemics, transportation delays, interruption or breakdown in energy or internet supplies, compliance with the laws, acts, orders, rules, or regulations of any government body, or any other cause whether or not similar to those specified herein, beyond the reasonable control of said Party.
20 Assignment
20.1 Roccai reserves the right to transfer its rights and obligations under this Agreement to another party, provided: (i) that such party is controlling, controlled by, or under common control with Roccai; or (ii) that transfer is made to a third party in connection with a bona fide transfer of all or a part of Roccai’s business.
20.2 Customer shall not be entitled to assign the Agreement nor any rights or obligations under the Agreement.
21 Customer Reference
21.1 Roccai shall have the right to use Customer as a reference, e.g. on its website, in press communications, and other marketing material, including case stories.
22 Governing Law, Venue and Jurisdiction
22.1 This Agreement shall be governed and construed in accordance with the laws of Denmark applied without giving effect to the UN Convention on Contracts for the International Sale of Goods and any conflict of law principles.
22.2 If the Parties do not succeed in solving a dispute amicably, the dispute shall be settled finally and with binding effect by arbitration in accordance with the Rules of Arbitration Procedure of the Danish Institute of Arbitration.
22.3 All members of the arbitration tribunal must be appointed by the Institute.
23 Severability
23.1 The invalidity or unenforceability of any term or any part of any term of, or any right arising pursuant to, this Agreement shall not affect the validity or enforceability of any other terms or rights or the remainder of any such term or right which shall continue in full force and effect except for any such invalid or unenforceable provision or part thereof.
24 Entire Agreement
24.1 This Agreement constitutes the entire agreement and supersedes any previous agreements between the Parties relating to its subject matter. In the event of a conflict between terms of the Agreement, specific deviations expressly stated in the SaaS Service Order shall take precedence over these General Terms. In the event of other discrepancies, the following order of precedence shall apply: The SaaS Service Order, these General Terms, Schedule 1, the Documentation, and any other documents.
Roccai ApS, CVR: 42976709, General Terms & Conditions, version 1.0 applied on date: 06.07.2023
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