Sodaclick Ltd. London, UK
Sodaclick is a digital signage platform specialising in dynamic content and voice AI experiences at every touchpoint
END USER AGREEMENT
THE FOLLOWING TERMS AND CONDITIONS INCLUDING THE APPLICABLE COUNTRY TERMS (COLLECTIVELY “TERMS”) ARE A LEGAL AGREEMENT BETWEEN YOU EITHER AN INDIVIDUAL OR A SINGLE ENTITY (“YOU” OR “YOUR” OR “CUSTOMER”), AND THE ENTITY IDENTIFIED BELOW AS CONTRACTING PARTY THROUGH WHICH THE SERVICES ARE PROVIDED (AS DEFINED BELOW) IN YOUR COUNTRY OF RESIDENCE. THE TERMS CONTAIN SIGNIFICANT RESTRICTIONS AND LIMITATIONS ON RIGHTS AND REMEDIES, AND CREATE OBLIGATIONS ON ANYONE WHO ACCEPTS THIS AGREEMENT. THEREFORE, YOU SHOULD READ THIS AGREEMENT CAREFULLY BEFORE AGREEING TO THESE TERMS. THIS AGREEMENT INCORPORATES SODACLICK’S PRIVACY AND COOKIES POLICY AVAILABLE HERE.
BY CLICKING THE “I ACCEPT” CHECKBOX, “CREATE MY ACCOUNT” AND, OR “SIGN UP” BUTTON AND ENTERING YOUR NAME IN THE NAME BOX DISPLAYED AS PART OF THE SODACLICK SIGN UP PAGE AND OR ACCOUNT/NETWORK (AS DEFINED BELOW) OR LICENCE REGISTRATION PROCESS THROUGH PROVIDER OR PARTNER, BOTH ONLINE AND OFFLINE, YOU AGREE TO THE FOLLOWING TERMS AND CONDITIONS WHICH CONSTITUTE A LEGALLY ENFORCEABLE WRITTEN END USER AGREEMENT (THE “AGREEMENT”) DEEMED SIGNED BY BOTH PARTIES GOVERNING YOUR USE OF THE SODACLICK ONLINE SERVICE ENABLING THE CREATION, UPLOAD, SCHEDULING AND DEPLOYMENT OF MEDIA CONTENT / SOLUTIONS TO ENABLED DEVICES (AS DEFINED BELOW) CONNECTED TO THE SODACLICK ONLINE SERVICE VIA THE INTERNET, PROVIDED BY THE PROVIDER (AS DEFINED BELOW). IF YOU AGREE TO THE TERMS ON BEHALF OF A LEGAL ENTITY YOU REPRESENT THAT YOU HAVE THE COMPLETE AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF SUCH ENTITY; OR IF YOU AGREE TO THE TERMS AS AN INDIVIDUAL, YOU REPRESENT THAT YOU ARE OVER THE AGE OF 18.
“Contracting Party” – All residents in and outside of the UK are contracting with Sodaclick Limited, a United Kingdom corporation (Company No: 10742997), a corporation duly organized and existing under the laws of England. Customer and Provider are, respectively, each a Contracting Party.
Customer will be given a unique account by Provider and Customer is responsible for its use of the Service and for all use of its account by each User using the account to access the Service.
If you do not have the requisite authority, or if you do not agree to these terms and conditions, you may not use the Service.
Customer’s acceptance of this Agreement will enable Customer to access the Service and a single Sodaclick Licence (as defined below) will then be allocated to each Enabled Device through which Customer accesses the Service.
Fees
The fees for using the Service are calculated based upon each Enabled Device connected to the Service. Fees are payable per annum per Enabled Device in accordance with the pricing provided by the Provider or its Partner (as defined below).
NOW IT IS AGREED as follows:
1. Definitions and construction
1.1. In this Agreement the following expressions shall apply:
1.1.1 “Commencement Date” means the date on which Customer first accesses the Service by connecting a device to the Website.
1.1.2 “Confidential Information” means information relating to one party or its agents (the “Disclosing party”) and/or the business carried on or proposed or intended to be carried on by the Disclosing party and which is made available in connection with this Agreement to the other party (the “Receiving party”) (or its agents) by the Disclosing party (or its agents). Customer hereby acknowledges that the Service including any documentation, source code, translations, compilations, partial copies and derivative works used in connection with the Services is provided using Confidential Information belonging exclusively to Provider, and Provider hereby acknowledges that Customer Data (as defined below) contains Confidential Information belonging exclusively to Customer or relating to its affairs (in each case, “Confidential Information”).
1.1.3 “Contracting Party” as defined on page 1 of this Agreement.
1.1.4 “Customer” as defined in the Preamble on page 1 of this Agreement.
1.1.5 “Customer Data” means all data provided by Customer or in relation to Customer which is processed by Provider as part of the Service for Customer including, but not limited to, data generated by the Website from visitor input.
1.1.6 “Customer Equipment” means the hardware and software which Customer is required to have in use in order to use and enable the Service to be provided in accordance with this Agreement.
1.1.7 “Customer’s Representative” means an individual appointed by Customer to administer its Sodaclick Account / Network.
1.1.8 “Data Protection Legislation” means all applicable data protection and privacy legislation in force from time to time in the UK including the UK GDPR; the Data Protection Act 2018 (DPA 2018) (and regulations made thereunder) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications);
1.1.9 “Downtime” means a period during Hosted Application Hours during which there is total loss of the Service.
1.1.10 “Enabled Device” – a screen or other device enabled to use the Service.
1.1.11 “Hosted Application” means the software application set out in Schedule 1 which Provider uses to provide the Service.
1.1.12 “Hosted Application Hours” means the hours during which the Service is to be provided as set out in Schedule 1. References to “hour(s)” and “minute(s)” in this Agreement will, unless otherwise indicated, be taken only to refer to the elapse of time during Hosted Application Hours.
1.1.13 “Intellectual Property Rights” means all copyrights, patents, inventions, database rights, registered and unregistered design rights, trademarks and service marks and any applications for any of the foregoing, all trade secrets, know-how, domain names, Confidential Information and other intellectual and industrial property rights in all parts of the world and for the full term thereof including all rights to renew the same.
1.1.14 “Month” means a calendar month and “monthly” shall be construed accordingly.
1.1.15 “Outage” means an instance of Downtime.
1.1.16 “Partner” means a distributor, reseller or strategic partner appointed by Provider to sell the Service on behalf of Provider.
1.1.17 ““Provider” means Sodaclick Limited, a United Kingdom corporation (Company No: 10742997), a corporation duly organized and existing under the laws of England.
1.1.18 “Relevant Event” means a matter or factor which absolves Provider from compliance with any obligation under this Agreement, notably:-
1.1.18.1 act or omission or delay by Customer, the effect of which is to prejudice the ability of Provider to perform its obligations in accordance with this Agreement;
1.1.18.2 Tolerances;
1.1.18.3 any matter falling within Clauses 7.3, 8 or 13.
1.1.19 “Service” means the provision of the Sodaclick services accessible through https://sodaclick.com/login using a Sodaclick Licence.
1.1.20 “Service Fee” means the fees payable to Provider or its Partner for use of any part of the Service.
1.1.21 “Service Interruption” means a period during Hosted Application Hours during which there is partial loss of the Service.
1.1.22 “Service Levels” means the levels of performance to which the Service is to be provided to Customer by Provider as set out in Schedule 2.
1.1.23 “Sodaclick Licence” also known as “Licence(s)” is a unique 16-character licence allocated to a single Enabled Device which may have multiple licence types such as ‘Standard’, ‘Voice’ and any others, allowing the use of the Service subject to payment of the Service Fees.
1.1.24 “Sodaclick Account / Network” means one or more accounts/networks created by a User within the Sodaclick service for the creation and management of media content and publishing to single and grouped Enabled Devices
1.1.25 “System” means the Hosted Application and Provider hardware as the same operate together in the provision of the Service.
1.1.26 “System Management Regulations” means regulations introduced by Provider from time to time for the better management of the Service and which may include (but are not limited to):
1.1.26.1 defining minimum specifications for equipment used by Customer to interface with the Service (including, but not limited to, routers, firewalls and PC’s);
1.1.26.2 regulations to ensure that the network through which the Service is provided are not overloaded and that the security and integrity of the network is maintained and including regulations which arise from the need to comply with regulations of any data centre facility engaged by Provider in connection with the Service; and
1.1.26.3 regulations to ensure that any database or other applications which form part of the Service are used to the best effect and within their capacities.
1.1.27 “Term” means the effective term of this Agreement.
1.1.28 “Tolerances” means instances of diminution of or interruption to the Service Levels as set out in Schedule 2 and which are to be disregarded from the point of view of establishing whether Provider has fallen below those performance levels or breached any provision of this Agreement.
1.1.29 “User” means an individual employee or contractor working for Customer who accesses the Service to use it pursuant to the terms of this Agreement.
1.1.30 “Website” means www.sodaclick.com and or https://sodaclick.com
2. Provision of Service and Licences
2.1. Provider agrees effective from the Commencement Date in consideration of the payment of the Service Fees by Customer to Provider or Partner to supply the Service to Customer on a non-exclusive, non-assignable basis upon the terms and conditions of this Agreement.
2.2. Customer acknowledges that Provider may at any time, and without notice, incorporate licence management software into the Hosted Application for the purposes of ensuring that licence rights are not exceeded.
2.3. Customer acknowledges that it may not duplicate or copy the Hosted Application for any purpose.
2.4. Customer acknowledges that Licence(s) are non transferable between accounts / networks and that once a Licence(s) has been added to an account / network, it cannot be moved.
2.5 Customer acknowledges that after the initial period of Licence(s) has expired (1 year or multiple years) renewal Licence(s) for subsequent years must be purchased from the Provider or its Partners in order to continue with the service.
2.6 Customer acknowledges that all current and future Licence(s) expire if not activated/registered on a Sodaclick Account / Network within a 5 year (60 months) period from the date the Licence is issued, plus the term (number of years) the Licences are purchased for. As an example; a one year Licence would expire 6 years from the date the Licence(s) is issued.
3. Duration
3.1. This Agreement shall commence on the Commencement Date and shall (subject to the payment of the Service Fees to Provider or Partner and the provisions for termination set out in this Agreement or) continue unless terminated in accordance herewith.
4. Service Fees
4.1. The Service Fees will be communicated by Provider or Partner to Customer and Customer undertakes to pay to Provider or Partner the Service Fees (as specified by Provider or Partner). If such fees are not paid in accordance with the provisions hereof and any additional terms of payment communicated to Customer by Provider or Partner, all further access to the Sodaclick Account / Network and Service will be blocked without notice.
5. Service Levels
5.1. Provider undertakes with Customer that it will use reasonable endeavours to provide the Service and each component, subject to Relief Events, in accordance with the Service Levels save where otherwise expressly provided for by this Agreement.
6. Outages, Service Interruptions and Changes to Service
6.1. Outages or Service Interruptions may be made by Provider when in its reasonable opinion they are necessary to facilitate improvements to or maintenance of the Service. Provider will use reasonable endeavours to minimise the Outages or Service Interruptions that may result.
6.2. If Outages or Service Interruptions are required under Clause 6.1 (“Scheduled Interruptions”), Provider shall use reasonable endeavours to schedule Scheduled Interruptions so as to minimise impact on the Service and will notify Customer of the anticipated commencement time of the Scheduled Interruption and its estimated duration.
6.3. Provider shall provide initial notice to Customer’s Representative as soon as reasonably possible by email to the address notified on sign-up to the Service (or such other address as may have been subsequently notified) or live-chat after becoming aware of an event that has caused or may cause an unscheduled Outage and use reasonable endeavours to keep Customer’s Representative informed of progress. In the event Customer first becomes aware of such event, Customer shall promptly notify Provider via the support ticketing system and or email in the first instance at support@sodaclick.com
7. Warranties and indemnities
7.1. Provider warrants to and undertakes with Customer that:
7.1.1 Provider will use its reasonable efforts to provide the Service and to exercise reasonable care and skill and in accordance with the terms of this Agreement;
7.1.2 Provider has full right power and authority to provide the Service to Customer in accordance with the terms of this Agreement.
7.2. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS CLAUSE 7, THE SERVICE IS PROVIDED ON AN “AS IS” BASIS, AND CUSTOMER’S USE OF THE SERVICE IS AT ITS OWN RISK. PROVIDER DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER EXPRESS AND/OR IMPLIED WARRANTIES, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. PROVIDER DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE.
7.3. Provider does not and cannot control the flow of data to or from its network and other portions of the internet. Such flow depends in large part on the performance of internet services provided or controlled by third parties. At times, actions or omissions of such third parties can impair or disrupt connections to the internet (or portions thereof). Although Provider will use commercially reasonable efforts to take all actions it deems appropriate to remedy and avoid such events, Provider cannot guarantee that such events will not occur. Accordingly, Provider disclaims any and all liability resulting from or related to such events.
8. Customer Obligations and Warranties.
8.1. Customer undertakes at all times during the Term to comply with all current System Management Regulations. Provider shall give not less than 14 days’ written notice to Customer of additions and changes to System Management Regulations.
8.2. In the event that Customer is in breach of any of its obligations under this Agreement, then:-
8.2.1 Provider cannot be held responsible should the Service fail to comply with the Service Levels as a result (directly or indirectly) of such Customer breach; and
8.2.2 Provider or Partner shall be entitled to charge Customer for staff time engaged on rectifying any resulting problems at Provider’s or Partner’s standard charge rates for the time being.
8.3. Customer represents, warrants and undertakes that:
8.3.1 it has and shall during the Term have the legal right and authority to place and use and have used any of its equipment as contemplated under this Agreement;
8.3.2 it will use the Service only for lawful purposes and in accordance with this Agreement; and
8.3.3 any software, data, equipment or other materials provided by Customer to Provider or employed by Customer in its use of or receipt of the Service shall not infringe any Intellectual Property Rights of any third party and shall not be obscene or defamatory of any person and shall not violate the laws or regulations of any state which may have jurisdiction over such activity.
8.4. In the event of any breach of any of the foregoing representations or warranties, in addition to any other remedies available at law or in equity, Provider will have the right to suspend immediately any related services if deemed reasonably necessary by Provider to protect the proper interests of Provider or its other customers. If practicable and depending on the nature of the breach, Provider may (in its absolute discretion) give Customer an opportunity to cure. In such case once Customer has cured the breach, Provider will promptly restore the Service(s).
9. Limitation of liability
9.1. CUSTOMER ACKNOWLEDGES AND AGREES THAT THIS AGREEMENT IS ENTERED INTO BETWEEN IT AND PROVIDER AND THAT PARTNER SHALL IN NO WAY BE LIABLE FOR ANY LOSS OR DAMAGE SUFFERED BY CUSTOMER IN CONNECTION WITH THE SERVICE(S) PROVIDED BY PROVIDER UNDER THIS AGREEMENT. PROVIDER SHALL NOT BE LIABLE FOR ANY LOSS OR DAMAGE OF WHATSOEVER NATURE SUFFERED BY CUSTOMER ARISING OUT OF OR IN CONNECTION WITH ANY ACT, OMISSION, MISREPRESENTATION OR ERROR MADE BY OR ON BEHALF OF CUSTOMER OR ARISING FROM ANY CAUSE BEYOND PROVIDER’S REASONABLE CONTROL.
9.2. PROVIDER SHALL NOT BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, LOSS OF PROFIT, REVENUE, DATA OR GOODWILL ARISING IN ANY WAY IN CONNECTION WITH THIS AGREEMENT OR ANY MAINTENANCE OR OTHER AGREEMENT ENTERED INTO BETWEEN CUSTOMER AND PROVIDER OR FOR ANY LIABILITY OF CUSTOMER TO ANY THIRD PARTY OR OTHERWISE WHETHER OR NOT SUCH LOSS HAS BEEN DISCUSSED BY THE PARTIES PRE-CONTRACT OR FOR ANY ACCOUNT FOR PROFIT, COSTS OR EXPENSES ARISING FROM SUCH DAMAGE OR LOSS.
9.2.1 SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU AND YOU MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM STATE TO STATE.
9.2.2 THE FOREGOING LIMITATIONS ON LIABILITY ARE INTENDED TO APPLY TO THE WARRANTIES AND DISCLAIMERS ABOVE AND ALL OTHER ASPECTS OF THIS END USER AGREEMENT.
9.3. Customer accepts that Provider is not in any way liable for any virus or other contaminants which enter Customer’s email system or computer network via use of the Service.
9.4. None of the Clauses above shall apply so as to restrict liability for death or personal injury resulting from the negligence of Provider or its appointed agents.
9.5. No matter how many claims are made and whatever the basis of such claims, Provider’s maximum aggregate liability to Customer under or in connection with this Agreement or any other agreement between the parties or any software related to this Agreement, in respect of any direct loss (or any other loss to the extent that such loss is not excluded by Clauses 9.1-9.4 above or otherwise) whether such claim arises in contract or in tort shall not exceed a sum equal to twice the Service Fees paid or payable for the 12 month period preceding such claim.
9.6. Customer agrees that it is in a better position to foresee and evaluate any loss it may suffer in connection with this Agreement and that the Service Fees have been calculated on the basis of the limitations and exclusions in this Clause 9 and that Customer will effect insurance as is suitable having regard to its particular circumstances and the terms of this Clause 9.
10. Intellectual Property Rights
10.1. The parties hereby agree that Provider owns all Intellectual Property Rights and that Customer shall not acquire any Intellectual Property Rights whatsoever in respect of the Hosted Application and in all materials created or originated by Provider in connection with or related to the provision of the Service hereunder.
10.2. Provider warrants that it has all necessary right, title or interest to enable Customer to use the Hosted Application in accordance with this Agreement.
11. Termination
11.1. For the purposes of this Clause, the following events shall be deemed “acts of default”:
11.1.1 if Customer fails to pay any moneys due to Provider or Partner pursuant hereto or to agreement with Partner within 7 days of the due date therefore;
11.1.2 if a party commits any material breach of any term of this Agreement (other than one falling under Clause 11.1.3 below) and which, in the case of a breach capable of being remedied, shall not have been remedied within 14 days of a written request by the other party to remedy the same
11.1.3 In the event a party to this Agreement files a petition in bankruptcy, is declared bankrupt, becomes insolvent, or makes an assignment for the benefit of creditors, the other party may terminate this Agreement by providing written notice of such termination; provided, however, with respect to involuntary proceedings, that such proceedings are not dismissed within ninety (90) days.
11.2. If Customer commits an act of default then Provider may:
11.2.1 forthwith suspend the provision of the Service hereunder (or any of them or any part of them) and no such suspension shall be deemed a breach of any term or provision of this Agreement; or
11.2.2 terminate this Agreement by notice in writing forthwith.
11.3. If Provider commits an act of default then Customer may terminate this Agreement by notice in writing forthwith.
11.4. Any termination of this Agreement for any reason shall be without prejudice to any other rights or remedies a party may be entitled to hereunder or at law and shall not affect any accrued rights or liabilities of either party nor the coming into force or the continuance in force of any provision hereof which is expressly or by implication intended to come into or continue in force on or after such termination.
12. Confidentiality and Ownership of Customer Data
12.1. Subject to Clause 12.2, each of Provider and Customer hereby undertakes with the other to keep confidential all Confidential Information.
12.2. Provider undertakes not without Customer’s written consent to disclose Customer Data in whole or in part to any other person save those of its employees agents and sub-contractors involved in the provision of the Service and who have, and to the extent that they have, a need to know the same.
12.3. The provisions of Clauses 12.1-2 above shall not apply to the whole or any part of the Confidential Information to the extent that it is:
12.3.1 already in the other’s possession without duty of confidentiality on the date of its disclosure;
12.3.2 in the public domain other than as a result of a breach of this Clause; or
12.3.3 to the extent that disclosure of such information may be required by any governmental agency or by operation of law and, in either such case, the party required to make such disclosure shall use reasonable endeavours to notify the other party of such requirement prior to making the disclosure.
12.4. Each of Provider and Customer hereby undertakes to the other to make all relevant employees agents and subcontractors aware of the confidentiality of the information and the provisions of this Clause 12.
12.5. For the avoidance of doubt, all Customer Data shall remain at all times the exclusive property of Customer and may only be used by Provider in order to fulfil its obligations pursuant hereto. Where Customer Data contains any personal data (as defined in the Data Protection Legislation):
12.5.1. Both Contracting Parties will comply with all applicable requirements of the Data Protection Legislation. This Clause 12.5 is in addition to, and does not relieve, remove or replace, a Contracting Party’s obligations or rights under the Data Protection Legislation.
12.5.2 The Contracting Parties acknowledge that for the purposes of the Data Protection Legislation, in connection with any Customer Data incorporating personal data which is provided to Provider under this Agreement, the Customer is the Controller and the Provider is the Processor. Such personal data shall only be processed by Customer for the duration of this Agreement and the types of personal data and categories of data subject shall depend on the nature of the personal data incorporated in such Customer Data as provided to Provider by Customer.
12.5.3 Without prejudice to the generality of Clause 12.5.1, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the personal data to the Provider for the duration and purposes of this Agreement.
12.5.4. Without prejudice to the generality of Clause 12.5.1, the Provider shall, in relation to any personal data processed in connection with the performance by the Provider of its obligations under this Agreement:
(a) process that personal data only on the documented written instructions of the Customer unless the Provider is required by applicable law to otherwise process that personal data. Where the Provider is relying on applicable law as the basis for processing personal data, the Provider shall promptly notify the Customer of this before performing the processing required by applicable law unless the applicable law prohibits the Provider from so notifying the Customer;
(b) ensure that it has in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting personal data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to personal data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
(c) ensure that all personnel who have access to and/or process personal data are obliged to keep the personal data confidential; and
(d) not transfer any personal data outside of the UK or the EEA unless the following conditions are fulfilled:
(i) the Customer or the Provider has provided appropriate safeguards in relation to the transfer;
(ii) the data subject has enforceable rights and effective legal remedies;
(iii) the Provider complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any personal data that is transferred; and
(iv) the Provider complies with reasonable instructions notified to it in advance by the Customer with respect to the processing of the personal data;
(e) assist the Customer, at the Customer’s cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
(f) notify the Customer without undue delay on becoming aware of a breach of personal data (as defined in the Data Protection Legislation);
(g) at the written direction of the Customer, delete or return personal data and copies thereof to the Customer on termination of the agreement unless required by by applicable law to store the personal data; and
(h) maintain complete and accurate records and information to demonstrate its compliance with this Clause 12.5.
12.5.5 The Customer consents to the Provider appointing third-party processors as a third-party processor of personal data under this Agreement. The Provider confirms that it has entered or (as the case may be) will enter with the third-party processor into a written agreement incorporating, where practically possible, terms which are substantially similar to those set out in this Clause 12.5 and, at a minimum, on that third party’s standard terms. As between the Customer and the Provider, the Provider shall remain fully liable for all acts or omissions of any third-party processor appointed by it pursuant to this Clause 12.5.5.
13. Force Majeure
13.1. Neither party hereto shall be liable for any breach of its obligations hereunder, except in respect of payment, resulting from causes beyond the reasonable control of the party in default (or its subcontractors) including but not limited to act of God, war, insurrection, riot, civil commotion, Government regulation, embargo, explosion, strike, labour dispute, illness, flood, fire or tempest (an ‘Event of Force Majeure’). Any time limit or estimate for a party to perform any act hereunder shall be suspended during an Event of Force Majeure.
13.2. Each of the parties hereto agrees to give notice forthwith to the other upon becoming aware of an Event of Force Majeure such notice to contain details of the circumstances giving rise to the Event of Force Majeure.
13.3. If a default due to an Event of Force Majeure shall continue for more than 30 days then the party not in default shall be entitled to terminate this Agreement. Neither party shall have any liability to the other in respect of the termination of this Agreement as a result of an Event of Force Majeure but such termination shall not affect any pre existing rights or obligations of either party.
14. Waiver
14.1. The waiver by either party of a breach or default of any of the provisions of this Agreement by the other party shall not be construed as a waiver of any succeeding breach of the same or other provisions nor shall any delay or omission on the part of either party to exercise or avail itself of any right, power or privilege that it has or may have hereunder operate as a waiver of any breach or default by the other party.
15. Notices
15.1. Any notice to be given hereunder shall be sent by email to the address of the other party set out in this Agreement (or such other address as may have been subsequently notified) and any such communication shall be deemed to have been served at 6pm Central Time Zone for U.S. residents and at 6pm (Greenwich Mean Time) for residents in all other countries on the next working day in the jurisdiction where the recipient is located.
15.2.
NOTICES TO EMAIL
Provider: support@sodaclick.com
Customer: As notified on sign-up to the Service
16. Invalidity and Severability
16.1. If any provision of this Agreement shall be found by any court or administrative body of competent jurisdiction to be invalid or unenforceable the invalidity or unenforceability of such provision shall not affect the other provisions of this Agreement and all provisions not affected by such invalidity or unenforceability shall remain in full force and effect. The parties hereby agree to attempt to substitute for any invalid or unenforceable provision a valid or enforceable provision which achieves to the greatest extent possible the economic legal and commercial objectives of the invalid or unenforceable provision.
17. Entire Agreement
17.1. Subject to Clause 17.2, this written Agreement (including the Schedules) and any other expressly incorporated document constitute the entire agreement between the parties hereto relating to the subject matter hereof. In entering into this Agreement neither party has relied on any representation made by the other party unless such representation is expressly included herein. Nothing in this Clause 17.1 shall relieve either party of liability for fraudulent misrepresentations and neither party shall be entitled to any remedy for either any negligent or innocent misrepresentation except to the extent (if any) that a court, arbitrator or expert appointed under Clause 20 may allow reliance on the same as being fair and reasonable.
17.2. No change, alteration or modification to this Agreement shall be valid unless in writing and signed on behalf of both parties hereto.
18. Successors
18.1. This Agreement shall be binding upon and ensure for the benefit of the successors in title of the parties hereto.
19. Non-Transferable
19.1. Customer shall not be entitled to assign, transfer, Licence and/or sublicence this Agreement nor all or any of its rights and obligations hereunder.
20. Subcontracting
20.1. Provider shall be entitled to sub contract the whole or any part of its obligations hereunder to any third party but shall remain liable as if it were performing the Service itself.
21. Country Terms
In addition to the foregoing, your contractual relationship with Provider will be subject to the relevant applicable country-specific contractual terms and conditions (“Country Terms”), which are incorporated into the Terms. The Country Terms are dependent on your country of residence. You shall have accepted the Country Terms applicable to you upon your acceptance of the Terms. The Country Terms applicable to you are described below in Section 21.1 for the United Kingdom and all other countries.
21.1. United Kingdom and All Other Countries
21.1.1 Disputes
21.1.1.1 All disputes or differences which shall at any time hereafter arise between Provider and Customer in respect of the construction or effect of this Agreement or the rights duties and liabilities of the parties hereunder or any matter or event connected with or arising out of this Agreement (a ‘Relevant Event’) shall be referred to such independent third party (the ‘Third Party’) as Provider and Customer shall jointly nominate. If Provider and Customer shall fail to nominate a Third Party within 14 days of the date of occurrence of the Relevant Event then the Third Party shall be nominated at the request of either Provider or Customer by the President for the time being of the British Computer Society. The Third Party shall act as an expert and not as an arbitrator whose decision (including as to costs) shall, except in the case of manifest error, be final and binding upon Provider and Customer.
21.1.2 Law
21.1.2.1 This Agreement shall be governed by and construed in accordance with English law and (subject always to Clause 21.1) the parties submit to the exclusive jurisdiction of the courts of England and Wales.
22. VAT
22.1. Save insofar as otherwise expressly provided all amounts stated in this Agreement are expressed exclusive of value added tax and any value added tax arising in respect of any supply made hereunder shall on the issue of a valid tax invoice in respect of the same be paid to the party making such supply by the party to whom it is made in addition to any other consideration payable therefore.
23. Sales Taxes
23.1. Save insofar as otherwise expressly provided, all amounts in this Agreement are expressed exclusive of any and all applicable sales tax, use tax, lease tax and any similar tax added as a result of any Licence(s) made hereunder and shall upon the issuance of an assessment of any of the foregoing be paid by the Customer making use of the software and or service, and such Customer shall be exclusively liable therefor and fully indemnify, defend and hold the Contracting Party harmless with respect thereto.
24. Returns Policy
Company will only consider a refund or credit for Sodaclick Licences that have not been added and or transferred to a Sodaclick Account / Network and the request for a refund or credit has been received and acknowledged by Sodaclick within 30 days from the date the Sodaclick Licence or Licences were issued by Provider from receipt of payment.
Schedules
N.B. UNLESS OTHERWISE STATED, ALL TIMES REFERRED TO IN THE SCHEDULES REFER TO THE FOLLOWING HOURS:
MONDAY 08:00 – 18:00
TUESDAY 08:00 – 18:00
WEDNESDAY 08:00 – 18:00
THURSDAY 08:00 – 18:00
FRIDAY 08:00 – 18:00
ALL TIMES ARE UNITED KINGDOM GMT AND EXCLUDE U.K. PUBLIC HOLIDAYS
SCHEDULE 1
HOSTED APPLICATIONS:-
Sodaclick – accessible through https://sodaclick.com
HOSTED APPLICATION HOURS:-
The Hosted Application will be available for Customer to connect to and use 24 hours/365 days per annum, subject to the exceptions detailed in Schedule 2 section 6 of this Agreement.
SCHEDULE 2
SERVICE AND SERVICE LEVELS
PART I – SERVICES
1. Purpose and Scope
This schedule defines the specific services for Customer that Provider will provide:
a. Customer Support:
i) email support via support@sodaclick.com
ii) online support ticket registration form available from the support menu within the Hosted Application
iii) Via “live chat” with the application, during Customer Service Hours subject to available agent as set out below.
b. Backup Services:
i) all Customer Data on the Hosted Application will automatically be backed up daily.
2. Customer Service Hours
Customer service help desk will be available to accept, and work on support received via the support ticketing system and or email in the first instance and Live Chat which would be subjected to an available agent at time of request. Hours of customer service based on request from Customer is between the hours of 08:00am and 06:00pm, Monday through Friday GMT and exclude UK Public Holidays. Emails may be sent to support@sodaclick.com
3. Online Availability
The Hosted Application will be available to Customer for a minimum of 95% of the Hosted Application Hours. The percentage of online availability will be calculated on a monthly basis, and will be a reflection of the availability of the Hosted Application over the total number of “Hosted Application Hours” for the month.
4. Backups
4.1 Backup Frequency
Backup is a daily process with complete load balancing.
5. Recovery times for System Failures
Complete System Failure – where it is necessary to completely rebuild the server – within 24 hours of the fault being first fully reported to Provider.
System failure – where a single element can be replaced with a functioning one, without the need to reboot the server – within 8 Customer Service Hours of the fault being first fully reported to Provider.
6. Agreed Outages
6.1 Server Operating System Patches & Upgrades
Server operating system patches and upgrades will only be applied to the server, should they be required to ensure continued support by the operating system vendor.
6.2 Application Upgrades
Hosted Application upgrades will only be applied to the server, should they be required to ensure continued support by the Hosted Application supplier or manufacturer.
Customer Support
Customer Support Response Times
Provider shall provide the following response times to calls received via the following channels:
Notifications to Customer support submitted via Provider “Customer Support” web page, and emails sent to Provider Customer support email address will be responded to on a first come first serve basis of receipt subject to severity and except where application problems are handled as a priority over “how to” problems. Details of the incident and contact information will be taken from the submitted template, a service request will be raised, and the service request number will be returned to Customer in the response.
In each case, Provider will assign the appropriate level of priority and an appropriate support analyst to the service request, and Provider shall use reasonable endeavours to ensure that work shall commence within the times specified in the table below.
Response
High Priority
Provider shall provide the following response times to calls received via the following channels:
Notifications to Customer support submitted via Provider “Customer Support” web page, and emails sent to Provider Customer support email address will be responded to on a first come first serve basis of receipt subject to severity and except where application problems are handled as a priority over “how to” problems. Details of the incident and contact information will be taken from the submitted template, a service request will be raised, and the service request number will be returned to Customer in the response.
In each case, Provider will assign the appropriate level of priority and an appropriate support analyst to the service request, and Provider shall use reasonable endeavours to ensure that work shall commence within the times specified in the table below.
Medium Priority
The call will be addressed by support analyst within : 60 minutes
Maximum target for provision of plan for resolution or circumvention : 2 Days
Provision of Temporary Fix : A.S.A.P.
Provision of Permanent Fix : A.S.A.P.
Low Priority
The call will be addressed by support analyst within : 90 minutes
Maximum target for provision of plan for resolution or circumvention : 3 Days
Provision of Temporary Fix : A.S.A.P.
Provision of Permanent Fix : A.S.A.P.
Such a fix will only be implemented with the agreement of Customer’s Representative
A “Permanent Fix” is a permanent resolution of the issue which restores the Service to optimum level.
A.S.A.P. Means in such reasonable time as is physically and technically possible with due regard for the severity and complexity of the issue and the integrity of the solution.
Priority is a measure based on impact and severity as set out in the following section, and dictates the response that the event will receive
Classification of Support Priorities
HIGH – A major issue which prevents the Hosted Application or a part thereof from being run and/or cripples the Hosted Application or a part thereof or causes severe performance degradation; causes a halt to the operation of important tasks by Customer or places the operation of such tasks at risk;
For example: inability to log in to the Hosted Application or inability to update media content to connect with Enabled Devices.
MEDIUM – A major problem with the running of the Hosted Application or any failure of the Hosted Application to perform in accordance with and provide the facilities, functions and capacity as set out in the relevant technical documentation provided by Provider;
For example: Loss of slides from a dashboard resulting in content having to be sourced by other means.
LOW – A minor inconvenience which causes minor disruption to normal working;
For example: Not being able to change Enabled Device records or add support information.
Support Call Impact and Severity Guidelines
When Customer logs a support call with Provider, impact and severity will be assigned to the call using the following guidelines and Provider’s reasonable discretion:
Impact: – the extent the problem would have on Customer’s business continuity (reflecting number of people affected)
Extent Description
Single User: A single User is affected.
Functional group: A number of Users, grouped by business function are affected.
Geographical group: A number of Users, grouped by their geographical location are affected.
Organisation: All the Users within Customer’s organisation are affected.
Severity: – how severely Customer’s business is impacted.
Severity Description Example
Unable to carry out business function: The problem prevents the User from performing its business function. The Hosted Application is unavailable.
Major inconvenience: The problem allows User(s) to continue to perform their business function in a restrictive manner, and seriously reduces the efficiency of the User(s) within the business. Unable to see slides on dashboard.
Minor inconvenience: The User is able to perform its business function, but a matter has been identified which reduces the efficiency of the User(s) within their business function. Unable to add support entry against the Enabled Device.
Escalation Process
The call logging system is escalated based on the time that a call remains in a particular status & impact/severity.
Escalation levels:-
1- Support analyst notified
2- Support analyst and team leader notified
3- Support analyst, team leader and support manager notified
4- Support analyst, team leader, support manager and director notified
Customer can request escalation by contacting Provider “Customer Support” within Hosted Application Hours.
Escalation levels 1 + 2 are to ensure that initial contact is made with Customer.
Escalation levels 3 + 4 are to ensure that the maximum target for provision of plan for resolution or circumvention is met.
High Priority
ESCALATION LEVEL 1 : When call is logged
ESCALATION LEVEL 2 : 30 minutes
ESCALATION LEVEL 3 : 4 hours
ESCALATION LEVEL 4 : 1 day
Medium Priority
ESCALATION LEVEL 1 : When call is logged
ESCALATION LEVEL 2 : 60 minutes
ESCALATION LEVEL 3 : 8 hours
ESCALATION LEVEL 4 : 2 days
Low Priority
ESCALATION LEVEL 1 : When call is logged
ESCALATION LEVEL 2 : 90 minutes
ESCALATION LEVEL 3 : 2 days
ESCALATION LEVEL 4 : 3 days
Tolerances
Interruptions to the Service or Outages arising directly or indirectly from:-
i. interruptions to the flow of data to or from the Hosted Application and other portions of the internet;
ii. changes to the Hosted Application or Sodaclick Account / Network (including the implementation of any necessary upgrades and operating system patches) and other housekeeping tasks which need to be made and of which Provider gives Customer at forty-eight (48) hours prior written notice and subject to such works being effected between the hours of 6:00pm and 6:00am U.S. Central Time Zone for U.S. residents and GMT for residents in all other countries and Provider striving to minimise the interruptions/Outages that may be caused by such change;
iii. the effects of the failure or interruption of services provided by third parties [who are not Provider’s agents];
iv. factors outside of Provider’s reasonable control;
v. any actions or omissions of Customer (including, without limitation, breach of Customer obligations set out in the Agreement) or any third parties [who are not Provider’s agents];
vi. Customer’s equipment and/or third-party equipment;
vii. Scheduled Outages as described below:-
a. Server Operating System Patches & Upgrades
Server operating system patches and upgrades will only be applied to the System, should they be required to ensure continued support by the operating system vendor.
b. Application Upgrades
Application upgrades will only be applied as necessary to facilitate continued support.
viii. Customer requested interruptions to the Service.
Last Updated: Monday 2nd October 2023
Sodaclick Ltd. London, UK
Sodaclick is a digital signage platform specialising in dynamic content and voice AI experiences at every touchpoint
© 2023 Sodaclick Ltd. All rights reserved.
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