Effective January 1, 2017.
Freespee AB corp. reg. no 556751-0689 (“Freespee”) 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. 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 Freespee (the “Order Form”). The Order Form and these general terms, including their 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 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”).
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. can to allow personalisation and detailed event attribution.
- 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
Freespee shall provide the Service as set out herein. The connection to the Service shall be made in accordance with Freespee’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 Freespee 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
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.
5. Termination or suspension of Customer or User accounts
Freespee is entitled to, with immediate effect, terminate or suspend the Customer’s and its Users’ use of the Service without incurring any liability to Customer or any User if:
- this Agreement is terminated or ceases to apply;
- Freespee 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;
- the Customer commits a material breach of the terms of this Agreement and fails to remedy such breach within fourteen (14) days from receiving written notification specifying the breach and requiring it to be remedied;
- the User uses the Service or the Freespee 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 Freespee appears offensive to the general public; or
- Freespee 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 Freespee.
The Customer’s obligation to pay the fees and charges set out in this Agreement is not affected by a suspension or termination according to above.
Freespee 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 Freespee granting a license to, assigning or transferring, wholly or partially, any intellectual property rights to the Customer or any User, unless specifically stated herein. Freespee retains all ownership to all rights, including to any software, required to provide the Service and to fulfill its obligations under this Agreement or in relation to any User Agreement.
Freespee 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
Freespee guarantees the performance of the Service and of Freespee Phone Numbers in accordance with what is set out in this Agreement. Freespee makes no other implied or explicit guarantees regarding the Service.
Except for in cases of gross negligence or intent, the Parties’ liability in relation to this Agreement is limited to direct damage. Under no circumstance shall Freespee’s total liability towards the Customer exceed the amount corresponding to the total amounts paid by the Customer to Freespee 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, Freespee shall never be liable towards a User, including claims directed at Freespee by a User or the Customer as a result of the Customer not having fulfilled its undertakings towards Freespee 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.
Freespee 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. Freespee 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. Freespee shall use its best reasonable efforts to minimize the effects of the force majeure event.
8. Price and payment
The Customer shall pay Freespee for the use of the Service in accordance with pricing plan set out in the Quote.
The following payment terms shall apply unless the Quote states otherwise:
- Fixed monthly fees are invoiced annually in advance.
- One time setup fees are invoiced in advance.
- Variable fees and any other charges are invoiced monthly in arrears.
- 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 separate written agreement between the parties. Change work includes services such as changing account configuration, developing customer solutions etc. The professional service are provided on hourly basis at a cost of €150. (i) Projects on hourly basis are invoiced monthly in arrears. (ii) fixed price project with a set cost above €2 500 are invoiced 50% before starting the project and the rest on completion.
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. Freespee 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 has the right to independently determine the price for the Service towards its Users, if applicable.
9. Support / SLA
Freespee will use commercially reasonable efforts to make the Service available 99.8% of the time. In the event Freespee 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 Freespee failed to achieve the applicable availability.
The Service is considered to be unavailable if the Freespee Login Account, Freespee Phone Numbers, the Freespee Widget or the Freespee 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 Freespee Widget is used; provided that service issues or outages relating to any exclusions (defined below) shall not be deemed as unavailable time.
Freespee 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 Freespee’s system. Faults notified by Customer shall be sufficiently described to enable Freespee to perform diagnostics and troubleshooting.
Unavailable 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%, Freespee shall compensate the Customer as follows:
|Availability is less than||Service Credit (as percentage of monthly fee)|
Compensation will be credited against the next subscription fee to be paid by the Customer, provided that a Service Credit has been requested by 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:
- “SLA Claim” as the subject of the ticket;
- the dates and times of the unavailability for which the Customer is requesting credit; and
- any information that documents the claimed unavailability.
For the purpose of measuring availability, downtime of the Service does not include:
- The period of time when the Service is not available as a result of scheduled maintenance; or
- The period of time when the Service is not available or is subject to the following performance or availability issues:
- Factors outside Freespee’s reasonable control;
- Unavailability that resulted from User’s, Customer’s or third party hardware, software or services;
- Unavailability that resulted from actions or inactions of a User, the Customer or third parties;
- Unavailability that was caused by a User’s or Customer’s use of the Service after Freespee advised Customer to modify its use of the Service, if Customer did not modify its use as advised;
- Intermittent periods of downtime that are five (5) minutes or less in duration;
- carrier related problems or issues, or Internet access or related problems beyond the demarcation point of Freespee or its direct hosting subcontractors (i.e beyond the point in the network where Freespee maintains access and control over the Service); or
- Unavailability caused by urgent software updates, server maintenance and security updates.
10. Term and termination
The term is set out in the Quote. Each Party is entitled to terminate this Agreement with immediate effect if:
- The other Party commits a material breach to this Agreement, and fails to remedy such breach within thirty (30) days from receiving a written notice from the other Party setting out the breach; or
- 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
Unless otherwise specified, this Agreement is automatically extended for the same period stated in the Order Form unless it is terminated no later than three (3) months before the end of the respective period.
In addition to the above, Freespee is entitled to terminate this Agreement with immediate effect if the Customer is acting in an illegal manner or resells the Service to any third party in contravention of the provisions of this Agreement.
All notices, requests, invoices and other communications shall be addressed as set out in the Quote.
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 forma, 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, 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.
Freespee may make changes to these terms and conditions from time to time due to (i) new or amended laws and regulations, (ii) improvements and changes in the Service or (iii) changes in Freespee’s offering, billing processes or pricing models.
Freespee will publish the changes at http://188.8.131.52/about/terms-conditions and they will not be effective until 30 days after 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 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 Freespee 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.
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, Freespee 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.
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:
- already in the possession of, or which is previously known to the receiving Party at the time of its receipt from disclosing Party, other than by breach of the present obligation of secrecy;
- in or comes into the public domain other than by breach of the present obligation of secrecy;
- obtained from a third party who 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;
- required by law or judicial order to be disclosed; or
- provided to the respective (legal) advisors of the Parties provided they are under the obligation to treat such information as confidential.
13. 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.