1. Background
Kaisa Technologies AB corp. reg. no 556751-0689 has developed a customer communication software used by marketing, product and sales teams to convert web visitors and App users into phone calls and text messages, automate workflows for third party software integrations and personalised communication experiences. Said software is further described in section 2 below (the “Service”).
The following general terms govern the provision of the Service to a company (the “Customer”) that has signed a written order form from Kaisa Technologies AB (the “Order Form”). The Order Form and these general terms, including their annexes and appendices, together make up this “Agreement”. In case of any discrepancies between these general terms and the Order Form, the text in the Order Form shall be given precedence.
2. Description of the Service
The Service used for understanding how visitors convert into callers (“Freespee Insights”) consists of Freespee providing public non premium or toll free telephone numbers (“Freespee Phone Number”) in a phone call and messaging widget for Web and App, or via an Application Programming Interface (“Freespee API”) provided that certain information is included in the request. Any phone call arriving on a Freespee Phone Number can be assigned to a contact center queue, to an individual or a team (“Call Destination”).
This allows the application to capture digital information like page visits, geo location, browsing history as well as call information via the Freespee Phone Number such as the CallerID of the caller, time and duration of the call (“Customer Data”).
The Call Destination can be the Customer directly or one of its own customers or users, such as vendors on a marketplace operated by the Customer or resellers of the Customer’s products (such third parties are collectively referred to as “Users”).
The phone and text widget is a set of code developed by Freespee that can be copied and pasted into a web page or App section that converts visitors and App users into phone calls (the “Freespee Widget”). The Freespee Widget can request and allocate specific Freespee Phone Numbers to each individual visitor, that enables visitor segmentation and profiling, as well as drill down analysis to study the behaviour of an individual visitor. If a visitor has blocked the use of cookies in its web browser, the Freespee Widget should be inactivated by the Customer or User and the visitor will then not be identified.
Customers and Users can automatically stream Customer Data to third party applications using native integrations (“Freespee Integrations”). Freespee Integrations can be switched on or off on the fly.
Workflows can be switched on or off (“Freespee Recipes”), that trigger automated actions like Customer and/or User messaging, visitor messaging and reporting to allow personalisation and detailed event attribution.
In providing the Service, Freespee collects, processes and analyses Customer Data and makes it available as information and insights that does not contain personal data referable to any individual (“Statistics”). The responsibilities relating to processing of personal data are set out in Annex 1 (the “Privacy Policy”). Examples of Statistics that Freespee can extract from the gathered Customer Data and make available include:
• Percentage of website visitors converting into phone calls and text messages
• Which media channel brought the visitor who called or texted to the site, including
browsing history of returning visitors
• Visitor device
• Browser type and OS version
• Call duration
• Call destination
• Geo location
• Page views
• Third party cookies associated with the visitor, used for sending Customer Data to third
party tools used by the Customer.
The Statistics can be made available in separate Login Accounts. A Customer can also select to make Statistics available to its Users in the Customer’s own dashboard and interface by using the Freespee API.
3. Provision of the Service
Kaisa Technologies AB shall provide the Service as set out herein. The connection to the Service shall be made in accordance with Kaisa Technologies AB’s instructions in order to ensure full functionality of the Service.
The Customer or User does not obtain any rights to the Service, other than for the purpose of utilizing the Service as set out in these Terms and Conditions. The Customer’s or User’s rights to utilize the Service cannot be transferred. The Customer or User may not assign a call arriving from a Kaisa Technologies AB Phone Number to a telephone number belonging to a third party, or in any other way transfer, assign or dispose of the rights granted under this Agreement.
4. The Customer’s obligations
If the Call Destination is a User as described in section 2, the Customer undertakes not to assign calls to this User without entering into a written agreement (a “User Agreement”) in which the User accepts the limitations in Kaisa Technologies AB’s obligations and the responsibilities for processing of personal data set out in the Privacy Policy. No contractual relationship will however arise directly between Kaisa Technologies AB and the User.
The Customer is solely responsible for its own marketing of the Service, will provide to its Users such information about the Service as is required by applicable law, and will in all other aspects comply with applicable law in relation to marketing of the Service and contracting with Users.
The Customer (or its User, if using geographical numbers purchased by the Customer) may only use geographical numbers corresponding to a geographical area where the Customer (or its User) has a physical presence evidenced by a corresponding address. The Customer (or its User) shall provide Kaisa Technologies AB with all required documentation in order to confirm compliance with this requirement.
5. Termination or suspension of Customer or User accounts
Kaisa Technologies AB is entitled to terminate or suspend the Customer’s and its Users’ use of the Service, with immediate effect and without incurring any liability to Customer or any User if:
1. this Agreement is terminated or ceases to apply;
2. Kaisa Technologies AB does not receive payment from the Customer in accordance with this
Agreement within fourteen (14) days from the invoice due date, or in case the Customer has defaulted invoice payments three (3) times within a twelve (12) month period;
3. the Customer commits a material breach of the terms of this Agreement and,
whenever such breach is capable of remedy, fails to remedy such breach within fourteen (14) days from receiving written notification specifying the breach and requiring it to be remedied in case of suspension and thirty (30) days from receiving written notification specifying the breach and requiring it to be remedied in case of termination;
4. a User uses the Service or the Kaisa Technologies AB Phone Number in violation of the terms of the
User Agreement, or in a way that is (or for any services which are) illegal or in the reasonable opinion of Kaisa Technologies AB appears offensive to the general public or detrimental to its reputation;
5. the Customer or the User is acting in an illegal manner or resells the Service to any
third party in contravention of the provisions of this Agreement;
6. Kaisa Technologies AB is requested to do so by a governmental or regulatory authority or is required
to do so in order to comply with a change in statutory or regulatory requirements (or enforcements thereof) or pursuant to a court order or is otherwise unable to provide the Service due to market events outside the control of Kaisa Technologies AB; or
7. the financial situation of the Customer makes it unsustainable for Kaisa Technologies AB to keep
performing this Agreement.
The Customer’s obligation to pay the fees and charges set out in this Agreement until the end of the agreed term is not affected by a suspension or termination according to the above.
All outstanding and newly issued invoices shall automatically become due within 14 days following suspension or termination of the Agreement according to the above.
Kaisa Technologies AB shall terminate a suspension referred to above within five (5) days of being made aware that the grounds giving rise to the suspension have ceased to exist.
6. Intellectual property
Nothing in this Agreement shall be construed as Kaisa Technologies AB granting a license to, assigning or transferring, wholly or partially, any intellectual property rights to the Customer or any User, unless specifically stated herein. Kaisa Technologies AB retains all ownership to all rights, including to any software, required to provide the Service and to fulfil its obligations under this Agreement or in relation to any User Agreement.
Kaisa Technologies AB shall, for the duration of this Agreement, be entitled to use the Customer’s trademarks in its marketing and refer to it as a customer of the Service. Provided that the Customer consents, the parties may also produce and publish a case story about their cooperation.
7. Limitation of liability
Kaisa Technologies AB guarantees the performance of the Service and the availability of Kaisa Technologies AB Phone Numbers in accordance with what is set out in this Agreement. Kaisa Technologies AB makes no other implied or explicit guarantees regarding the Service.
Except in cases of gross negligence or wilful intent, the parties’ liability in relation to this Agreement is limited to direct damage. Under no circumstance shall Kaisa Technologies AB’s total liability towards the Customer exceed the amount corresponding to the total amounts paid by the Customer to Kaisa Technologies AB under this Agreement during the twelve (12) month period immediately preceding the event causing the liability to arise, or twelve (12) times the fixed monthly fee if this is higher.
For the avoidance of doubt, Kaisa Technologies AB shall never be liable towards a User. Kaisa Technologies AB shall never be liable, either, for claims directed at Kaisa Technologies AB by a User or the Customer as a result of the Customer not having fulfilled its undertakings towards Kaisa Technologies AB under this Agreement or towards a User under a User Agreement. In the event of any User claim, the Customer will inform the User that all such claims shall be directed at the Customer directly and exclusively.
For the sake of clarity, nothing in this Agreement shall exclude or limit Kaisa Technologies AB’s liability for death or personal injury caused by its negligence or that of its employees or agents.
Kaisa Technologies AB shall not be held liable for failure to perform any of its obligations under this Agreement if such failure is caused by or arises as a result of an event of force majeure, including, but not limited to fire, flood, strike, lightning, unavailability of or disturbances to public communications networks, prolonged general power outages, changes of the regulatory environment, acts of governmental or military authorities, strikes, civil unrests, terrorism and war. Kaisa Technologies AB shall as soon as reasonably possible notify the Customer in writing of the occurrence of an event of force majeure and the estimated extent and duration of its inability to perform its obligations under this Agreement. Kaisa Technologies AB shall use its best reasonable efforts to minimize the effects of the force majeure event.
8. Price and payment
The Customer shall pay Kaisa Technologies AB for the use of the Service in accordance with the pricing plan set out in the Order Form.
The following payment terms shall apply unless the Order Form states otherwise:
1. Fixed monthly fees are invoiced annually in advance.
2. One-time setup fees are invoiced in advance.
3. Variable fees and any other charges are invoiced monthly in arrears.
4. All recurring fixed or variable fees will be reviewed yearly, on the anniversary date of the
Order Form’s start date, and adjusted, upwards only, based on the EU wage growth rate as published on https://tradingeconomics.com/european-union/wage-growth.
5. Invoicing starts when the Order Form is duly signed by both parties and the Customer’s
Login Account is activated.
If the Customer requests any changes to the Service after it has been activated, this will be invoiced to the Customer as a separate professional services project, subject to a separate written agreement between the parties. Change work includes services such as changing account configuration, developing customer solutions etc. The professional services are provided on hourly basis at a cost of €150. Projects on hourly basis are invoiced monthly in arrears and fixed price project with a set cost above €2 500 are invoiced 50% before starting the project and the rest on completion.
The Customer shall inform Kaisa Technologies AB before using a new feature or workflow that was not in the original scope of agreed Service, failing which Kaisa Technologies AB default overage fees, as set in Appendix 1 to the Order Form, shall automatically apply to the usage of this new feature or workflow by the Customer.
The payment term is thirty (30) days from the date of invoice. Payment shall be performed via bank transfer. All prices are exclusive of applicable value added tax (VAT) or similar taxes or charges. Kaisa Technologies AB reserves the right to charge default interest of the reference rate of interest set by the Central Bank of Sweden plus eight percentage points, as well as collection costs, on all late payments.
The Customer shall notify Kaisa Technologies AB in writing and before the invoice due date if the Customer would like to dispute any portion of any fees payable under an invoice issued pursuant to this Agreement. Following such notification, the parties shall work in good faith to promptly resolve the dispute. If the Customer does not dispute part or all of an invoice before its due date, the Customer shall not be entitled to dispute any fees payable under this invoice.
The Customer has the right to independently determine the price for the Service towards its Users, if applicable.
9. Support / SLA
Kaisa Technologies AB will use commercially reasonable efforts to make the Service available 99.8% of the time. In the event Kaisa Technologies AB does not meet the goal of 99.8% Service availability in a given calendar month (“Monthly Uptime Percentage”), the Customer will be eligible to receive a credit on the fees for the Service in such month (“Service Credit”) as described below. The Service Credit shall be calculated as a percentage of the subscription fee for the Service paid by the Customer for the calendar month in which Kaisa Technologies AB failed to achieve the applicable availability.
The Service is considered to be unavailable if the Kaisa Technologies AB Login Account, the Kaisa Technologies AB Phone Numbers, the Kaisa Technologies AB Widget or the Kaisa Technologies AB API are out of service and unable to assign calls, Users are not able to login to receive and make calls, Customer Data is not captured where the Kaisa Technologies AB Widget is used; provided that service issues or outages relating to any exclusions (as defined below) shall not be deemed as unavailable time.
Kaisa Technologies AB shall correct Service unavailability as soon as is reasonably required by the circumstances by using its best efforts after notification of such fault or after a perceived alarm in Kaisa Technologies AB’s system. Faults notified by the Customer shall be sufficiently described to enable Kaisa Technologies AB to perform diagnostics and troubleshooting.
Unavailability begins from the perceived alarm or fault notification from the Customer and ends when the fault is repaired and the Service is available. In the event the Service availability falls below 99.8%, Kaisa Technologies AB shall compensate the Customer as follows:
Compensation will be credited against the next subscription fee to be paid by the Customer, provided that a Service Credit has been requested by the Customer as set out below. Service Credits may not be transferred or applied to any other account. No cash reimbursements will be made.
To apply for a Service Credit, the Customer must submit a ticket via support.freespee.com within 30 days of the month in which the Service unavailability occurred. The ticket must include:
1. “SLA Claim” as the subject of the ticket;
2. the dates and times of the unavailability for which the Customer is requesting credit; and
3. any information that documents the claimed unavailability.
For the purpose of measuring availability, downtime of the Service does not include:
1. The period of time when the Service is not available as a result of scheduled
maintenance; or
2. The period of time when the Service is not available because of or is subject to the
following performance or availability issues:
2.1 Factors outside Kaisa Technologies AB’s reasonable control;
2.2 Unavailability that resulted from User’s, Customer’s or third party hardware, software
or services;
2.3 Unavailability that resulted from actions or inactions of a User, the Customer or third
parties;
2.4 Unavailability that was caused by a User’s or Customer’s use of the Service after
Kaisa Technologies AB advised the Customer to modify its use of the Service, if the Customer did not modify its use as advised;
2.5 Intermittent periods of downtime that are five (5) minutes or less in duration;
2.6 Unavailability that was caused by problems or issues with the services provided by
Kaisa Technologies AB’s subcontractors, including but not limited to Kaisa Technologies AB’s messaging service providers;
2.7 Carrier-related problems or issues, or Internet access or related problems beyond the
demarcation point of Kaisa Technologies AB or its direct hosting subcontractors (i.e beyond the point in the network where Kaisa Technologies AB maintains access and control over the Service); or
2.8 Unavailability caused by urgent software updates, server maintenance and security
updates.
10. Term and termination
The term of this Agreement is set out in the Order Form. If not terminated with three (3) months’ prior written notice before the expiration of the initial term, this Agreement shall be automatically extended for twelve (12) months’ additional periods, unless and until terminated by either party with a three (3) months’ prior written notice before the expiration of any extension term.
Either party is entitled to terminate this Agreement with immediate effect and without incurring any liability to the other party if:
1. The other party commits a material breach to this Agreement and, whenever such
breach is capable of remedy, fails to remedy the breach within thirty (30) days from receiving a written notice from the other party setting out the breach; or
2. The other party becomes insolvent, is declared bankrupt, is put into liquidation,
commences composition or restructuring proceedings or arrangements with a major part of its creditors.
The Customer’s obligation to pay the fees and charges set out in this Agreement until the end of the agreed term is not affected by a termination according to the above.
All outstanding and newly issued invoices shall automatically become due within 14 days following termination of the Agreement according to the above.
11. Notices
All notices, requests, invoices and other communications shall be addressed as set out in the Order Form.
All notices under this Agreement shall be in English and in writing and shall be delivered in person or sent by registered mail, addressed to the parties at the addresses set out in the Order Form, or to another address that either party notifies the other under this section.
A notice delivered in person or by courier shall be deemed to have been received upon delivery, and any notice sent by registered mail after five (5) business days from the date of delivery for conveyance by post.
Routine communications relating to the performance of this Agreement may be conducted by e-mail. However, the parties acknowledge and agree that any communication by e-mail shall not amount to notice in writing for the purposes of this section or to a written instrument for the purposes of section on changes below and that any purported notice under, or variation of, this Agreement by e-mail shall have no effect.
12. Changes
Kaisa Technologies AB may make changes to these terms and conditions from time to time for any reason including but not limited to (i) new or amended laws and regulations, (ii) improvements or changes in the Service or (iii) changes in Kaisa Technologies AB’s offering, billing processes or pricing models.
Kaisa Technologies AB will publish the changes at https://www.kaisa.io/terms-conditions/ and they will not be effective until 30 days after being published. The Customer is responsible for reviewing the terms and conditions on a regular basis. The Customer understands and agrees that its express acceptance of the terms and conditions or the continued use of the Service after the effective date (30 days after being published) shall constitute an agreement to the updated terms and conditions. If the Customer does not agree with the amended terms and conditions, the Customer should give written notice of this before the amended terms and conditions come into effect whereby Kaisa Technologies AB may elect to continue the Agreement on unchanged terms or terminate the Agreement with 30 days’ notice and repay a pro rated amount of any prepaid fees for the Service for the remaining period.
13. Assignment
Neither Party may assign, transfer or otherwise dispose of this Agreement or any of its rights and obligations hereunder, without the prior written consent of the other Party.
Notwithstanding the previous section, Kaisa Technologies AB may, without obtaining the Customer’s prior approval, assign or transfer this Agreement, or its rights and obligations. hereunder, to a company within its own company group.
14. Confidentiality
For the entire duration of this Agreement and for a period of five (5) years thereafter, the parties shall keep confidential (and shall not disclose to any third party) all contractual documentation and terms referenced in this Agreement and any and all other information about the other party’s business operations and Users that is acquired during the term of this Agreement and which can be reasonably assumed to be confidential or which has been marked or otherwise identified by the other party as confidential.
The obligation to secrecy referred to above shall not apply to information which is:
1. already in the possession of or previously known to the receiving party at the time of its
receipt from the disclosing party, other than by breach of the present obligation of secrecy;
2. in or comes into the public domain other than by breach of the present obligation of
secrecy;
3 obtained from a third party which is permitted to disclose such information, or has been
generated by the receiving party without any use of the confidential information received from the disclosing party;
4. required by law or judicial order to be disclosed provided that the disclosing party is
notified in advance whenever possible; or
5. provided to the respective (legal) advisors of the parties provided they are under the
obligation to treat such information as confidential.
15. Governing law and disputes
This Agreement shall be governed by and construed in accordance with the laws of Sweden.
Any dispute, controversy or claim arising out of or in connection with this Agreement, or the breach, termination or invalidity thereof, shall be finally settled by arbitration in accordance with the Rules of the Arbitration Institute of the Stockholm Chamber of Commerce (the “SCC“). The seat of arbitration shall be Stockholm and the language used in the arbitral proceedings shall be English.
The Rules for Expedited Arbitrations shall apply, unless the SCC in its discretion determines, taking into account the complexity of the case, the amount in dispute and other circumstances, that the Arbitration Rules shall apply. In the latter case, the SCC shall also decide whether the Arbitral Tribunal shall be composed of one (1) or three (3) arbitrators.
16. Annex
The following Annex to this Agreement constitutes an integral part of the Agreement:
Annex 1: Privacy Policy