Article 2 Applicability and explanations
2.1 These Terms of Service shall apply to all of CODE Service Agreements and the acts which are aimed at the establishment of such Service Agreements if CODE has declared these to apply or may be deemed to have it applied.
2.2 Where these Terms of Service apply to agreements with a different service than described in the previous paragraph these conditions will be applied as far as applicable by analogy.
2.3 The applicability of the present conditions excludes those of all other conditions especially those of the Client.
Article 3 Description and execution of Service
3.1 CODE offers a suite of unified communications management software. The Service consists of the licensed usage of the following solutions either hosted by CODE or installed on Clients premises;
3.1.1 Clobba provides PBX, IPPBX and Unified Communications reporting by collecting Data from Client, via an internet browser software application through which Client can produce reports from Client’s data.
3.1.1.a Upon request and at current fees, Client can request CODE to add phone call rates to Data. Multiple rates can be applied. By default, no tariffs are applied.
3.1.2 ClobbaRT provides Unified Communications wallboards and contact center agent reporting and status information.
3.1.3 ClobbaRM provides PBX, IPPBX and Unified Communications DID or DDI number management.
3.1.4 ClobbaVR provides Unified Communications Voice Recording.
3.1.5 ClobbaDM provides inventory and management of headsets and other UC devices.
3.2 If the layout of the Data changes, CODE is allowed to charge the Client for the necessary adjustments at the current fees.
3.3 CODE will provide maintenance and support to Client based on the Code Software Maintenance and Support Conditions.
3.4 The Service via CODE Cloud, Data will be stored for a period of 1 (one) year for ClobbaVR and 2 (two) years for Clobba. Data older than the specified periods will be, unless otherwise agreed, automatically and permanently deleted. Data retention periods can be extended for an additional annual fee.
3.5 The Service via CODE Cloud (including data storage) shall be provided by servers located in Europe and/or the United States.
3.6 When CODE increases functionality in the Services, such functionality shall be provided to Client without any increase in the Services Fees.
3.7 CODE shall provide Client with training services. The Services fees shall be inclusive of the fees for the Training Services.
Article 4 Liability
4.1 Client is liable for and will, therefore, meet all costs associated with the use of the Service, including the cost for required changes in the infrastructure, servers, network and storage cost etc. These costs cannot, under any circumstances, be charged to CODE.
4.2 The Client ensures that the aforementioned adjustments and/or work will be done on time and in line with any directions from CODE, without CODE being responsible in any respect, unless there is gross negligence or intent from CODE. Furthermore, the Client for his own account shall make available, in a timely fashion, as deemed necessary by CODE, auxiliary workman, auxiliary materials, energy, water, lighting, compressed air and/or other devices.
4.3 In the event of circumstances beyond the control of CODE, which may hinder or delay the assembly, commissioning or testing, CODE is entitled to charge the Client with any ensuing costs.
4.4 If the delivered Services differ from but reach the same objective of what is agreed upon in the Service Agreement, the Client cannot hold CODE responsible for failure of performance.
4.5 Client must deliver information on time according to the specification of CODE. Late delivery may result in incorrect reporting for which CODE is not liable.
4.6 If the Client has chosen a Service model where CDRs or GSM data from a digital medium provided by a Telecom provider (GSM or fixed) are processed, then to correctly read and process these CDRs or GSM Data, these CDRs or GSM Data should be provided with a full call originator number and not be masked by any arbitrary character.
4.7 If the Client wants to rate the Data with tariffs, the responsibility for providing these tariffs is with the Client.
Article 5 Payment & Service Charge
5.1 The Service Charge is based on the Service model chosen by the Client and the number of Seats increased with optional services as defined in the Service Description outlined in the Service Agreement.
5.3 CODE will produce an invoice on receipt of the Client’s Purchase Order. The Client is obliged to provide CODE with the authorization to automatically debit the agreed contractual Service Fees from Client’s bank account, or Client must pay these fees per quarter or annually in advance within thirty (30) days from invoice date.
5.4 In case of automatic withdrawal CODE will send at least 4 days before amortization a message concerning the height and description of the Service Fees. If Client disagrees with the depreciation, the Client has five (5) working days to commission his bank to arrange a chargeback.
5.5 If Client requests CODE to provide services which are not included in the Service Agreement, CODE is authorized to charge such services at prevailing prices in addition to the on-going Service Fees.
5.6 Client is not entitled to apply any discount or credit on due Service Fees.
5.7 CODE has the right to adjust the agreed annual Service Fees in line with inflation or at five percent (5%) on an annualized per-Seat basis. The Services Fee will also be increased with additional costs, based on charges from CODE, caused by extra work carried out by CODE at the request of the Client.
5.8 Client acknowledges and agrees its obligation to comply, under all circumstances, to the agreed deadlines mentioned in the Service Agreement.
5.9 Payment by Client does not imply that Client is in agreement with the Service CODE offered.
5.10 All deadlines mentioned in this Service Agreement are hard deadlines. Without notice needed, delays owing to the actions or otherwise of the Client, may incur interest on the outstanding amount for the size of statutory interest calculated from the due date until the day of full payment, a portion of one month to count as a whole month by incomplete or untimely payment.
5.11 By incomplete or untimely payment of any outstanding commitment by Client, Client is also obliged to pay all extrajudicial and court costs, including attorneys’ fees and trial fees plus tax and disbursements if and when CODE transfers the claim. Whether a claim will be transferred is fully up to the determination of CODE. The extrajudicial costs are at least 15% of the amount owed by Client, with a minimum of £200 (GBP) excluding VAT per case.
5.12 CODE will send its invoices digitally via email. Client must provide digital billing email address.
Article 6 Duration and Termination
6.1 The commencement date of the Service Agreement is the date the equipment making the Service possible is placed. The Service Agreement runs for a period of either twelve (12), twenty-four (24) or thirty-six (36) months as per the Agreement. After this period the Service Agreement will automatically be renewed for a period of twelve (12) months unless one of the parties sends a notification of termination in writing thirty (30) days in advance of the renewal date. Any party may terminate this agreement if one of the parties failed the terms set out in this Agreement taking in consideration a thirty (30) days’ notice.
6.2 If a different Service Agreement period is agreed upon by both parties than this Service Agreement will be automatically renewed for the same period unless thirty (30) days in advance of the renewal date one of the parties sends a notification of termination in writing.
6.3 A premature termination of the Service Agreement is only possible after written notice of the failure to comply with the terms described in the Service Agreement. Mutual rights remain unaffected.
6.4 Upon premature termination of the Service Agreement all remaining terms are immediately due and payable.
6.5 Upon termination of the Service Agreement, CODE will delete the accumulated historical data from the Client unless Client requests CODE to send them the information in digital form. This request must be made within 30 days of termination of the Service Agreement. CODE is allowed to charge a fee for this service.
Article 7 Claim Ability
All remaining terms are immediately due and payable, and CODE is authorized to terminate the Service Agreement without further notice and without prejudice to its claims for penalties, costs and compensation for any further damage if:
Article 8 Use and maintenance of equipment
8.1 If, to perform the Service, it is necessary to place Equipment at the location of the Client, the Equipment will remain the property of CODE.
8.2 Client must take care of the Equipment and ensure it is used as intended. The Client is not allowed to make any changes to the Equipment.
8.3 The Client is not entitled to put the Equipment into custody, to alienate the Equipment for the benefit of third parties with personal and/or business rights or otherwise.
8.4 In respect of damage or destruction of the Equipment, the risk is for the Client once that Equipment is delivered at the agreed place.
8.5 The Client is required to properly secure and/or protect the Equipment against damage and destruction.
8.6 Client is obliged to grant free and unrestricted access to the Equipment and cooperate in work needed to be done on the Equipment.
Article 9 Information Obligation
9.1 Client is obligated, accompanied by all relevant information, to inform CODE immediately of any claims by third parties on the Equipment needed for carrying out the Service, including seizure or confiscation by law of the Equipment. Furthermore, Client is obliged to inform third parties, which may intend to make claims on the equipment, about the rights of CODE in advance.
9.2 Client is required to inform CODE by registered letter within 3 days of address change.
Article 10 Cancellation
Cancellation of a signed Service Agreement is only possible with the express written consent of CODE. In the case of consent, Client will be charged for administration and research costs.
Article 11 Force Majeure
11.1 CODE will be able to rely on force majeure to temporarily suspend the obligations under the Service Agreement in the event of strikes, war or similar circumstances, fire, explosion, natural disasters, stagnation by any weather, governmental as well as all other circumstances in which CODE exercises no control and under which CODE cannot reasonably fulfill its obligations. In the event of any such situation, CODE will promptly notify the Client in writing within fifteen (15) days of such suspension.
11.2 In the event that the performance by CODE is delayed by at least six (6) months for any reason contemplated in this Article, the Client may elect to terminate the Agreement on written notice.
Article 12 Limitation of Liability
12.1 CODE is not liable, either to the Client or any third party, for any damages of any kind whatsoever, consequentially or indirectly, unless there is gross negligence or malintent of CODE.
12.2 CODE is not be liable for the damages of the Client which might arise as a result of a different use of the Equipment than to which it is intended.
12.3 CODE is not liable for any damage resulting from the linking of computers through a communication solution, nor is CODE liable for the effectiveness of its results or any resulting damage thereof.
12.4 Parties guarantee that they will not withholding information necessary for the proper implementation of the Service.
Article 13 Transfer to third parties
At any time, CODE is entitled to transfer its rights and obligations under this Service Agreement to any third party. CODE will inform the Client in case of such a transfer.
Article 14 Different Conditions
Any condition different from the Service Agreement and/or Terms of Service, agreed upon between parties, is not binding unless these conditions are agreed upon in writing between parties.
Article 15 Severability
If any provision, or part-provision, of these Terms and Conditions are found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force. If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were to be deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
Article 16 Confidentiality
16.1 Each party shall maintain the confidential nature of the information that was obtained from the other Party during the execution of the Service Agreement. The content of the Service Agreement is also covered by this confidentiality provision.
16.2 CODE shall keep and maintain Client’s Data in strict confidence, using such degree of care as is appropriate and consistent with its obligations as further described in this Agreement and applicable law to avoid unauthorized access, use, disclosure, or loss.
16.3 CODE shall use and disclose Client’s Data solely and exclusively for the purpose of providing the Services, such use and disclosure being in accordance with this Agreement and applicable law.
16.4 The obligations of this provision will remain in force for five (5) years as of the end of the Service Agreement, whichever reason it was terminated.
Article 17 Disputes / Applicable law
The Service Agreement and the Terms of Service is governed by the laws of England and Wales.