Woba.io General Terms and Conditions

January, 2021

Preamble

Throughout the Period of the Agreement, the parties agree to cooperate in a positive, professional and responsible spirit and to do their utmost to achieve the best possible results. To this end, the parties will demonstrate the flexibility that might be considered reasonable and customary when implementing similar agreements.

The parties will routinely inform each other of any matter that is deemed important for ensuring appropriate fulfilment of the agreement.

1. Definitions

The Agreement
These general terms and conditions together with the subscription agreement and data processing agreement entered into. In the event of a conflict between these, the subscription agreement and the data processing agreement shall take precedence over these general terms and conditions.

Working Day
Monday to Friday from 9 a.m. to 5 p.m., except bank holidays, Christmas Eve, New Year’s Eve and Constitution Day.

User
Any natural person appointed by the Customer to enter information into the Product (carry out inputting)

Data
The total quantity of input from Users of the Product as well as the output that the Product generates from this input.

Documentation
Any necessary or appropriate descriptions related to use of the Product with regard to both input into the Product and output from the Product.

GDPR
The rules on collection, storage, use, disclosure and erasure of personal data laid down in legislation at any given time.

Period
The Period of the agreement, as described in section 16.

The Product
The Product consists of the platform, Woba, which allows the Customer to carry out general surveys, satisfaction surveys and the like, as described in the subscription agreement, consisting of an application and a management dashboard.

Maximum Adjustment Rate
The rate at which Woba may adjust the annual subscription payment, consultancy fee or other remuneration agreed between Woba and the Customer. The Maximum Adjustment Rate is currently 4%.

Start Date
The date from which the Customer gains access to use the Product.

2. Woba’s delivery obligations

2.1 General
Woba shall deliver the Product with the design and characteristics (functionalities) as per the Agreement.

2.2 Purchase of additional services
During the Period of the Agreement, the Customer shall have access to use the Product to carry out surveys as per the Agreement. If the Customer desires additional access to Data, this must be agreed separately. If the Customer also wishes to carry out additional or other employee surveys, this will be
charged as an additional purchase.

If the Customer wishes to purchase other services (e.g. custom invitations, additional custom questions, presentations of results, revised organisational structure, testing of the defined questionnaire and implementation of feedback, additional analyses, coding of comments from employees etc.), Woba may charge a consultancy fee of DKK 1,100/hour for such services.

It is the Customer’s responsibility to provide correct Data at employee and department level and regarding superuser rights for the Customer’s assigned Customer Success Manager.

If the Customer wishes to make further changes, or detects errors or omissions in Data provided by the Customer, Woba may charge a consultancy fee for the time associated with this.

2.3 Compatibility
Woba is a standardised product, and Woba is thus not obliged to ensure that the Product is compatible with the Customer’s specific devices. However, Woba shall endeavour to ensure that the Product is at least compatible with mobile phones and tablets with versions of iOS (including iPadOS) or Android that are less than 4 years old. Similarly, Woba shall endeavour to support versions of web browsers that are less than 4 years old.

The term “versions” in this section covers only major releases. Patches, bug fixes, security updates and other minor updates are not considered new “versions”.

2.4 Documentation, implementation and support
Woba shall provide the Documentation necessary for use of the Product. Furthermore, Woba shall deliver the Documentation to the Customer that is necessary for use of the Product to be entrusted to an employee on the terms stipulated in the Agreement.

If Woba makes changes to the Product, including as part of maintenance, the supplied Documentation shall be updated at the same time so that the Documentation continues to meet the above requirements. Immediately after signing the Agreement, Woba and the Customer shall hold an onboarding meeting where Woba presents a plan for the Product’s implementation with the
Customer.

After implementation of the Product, Woba shall provide technical support to the superusers designated by the Customer. Unless otherwise stated in the Agreement, all support-related communication shall be via email. Woba’s telephone technical support for the Customer’s superusers, which can be provided on Working Days from 9 a.m. to 5 p.m., must be ordered separately by the Customer from Woba with a fee based on the time spent on the support at the same hourly rate as applies to other Woba consultancy assistance provided
to the Customer.

If the Customer desires other consultancy assistance from Woba, this must be ordered separately by the Customer from Woba with a fee based on the time spent on the consultancy assistance.

3. Amendments
During the Period of the Agreement, both parties may make requests for changes to the Requirements Specification according to the guidelines below.

3.1 Change requests on the part of the Customer
Change requests on the part of the Customer must be submitted to Woba in writing.

Woba must, without undue delay after receipt of the request, prepare an estimate of the fee that is expected to be associated with the preparation of a proposed solution for implementing the change. The estimate should be sent to the Customer for its approval.

Once the Customer has approved the estimate, Woba shall initiate the processing and must, without undue delay and no later than five Working Days thereafter, submit a proposal for a solution containing a detailed description of the solution, the price, the time required and the impact (if any) on the Product
as a whole.

If disagreements arise between the parties regarding the consequences of a change request, the Customer has the right to be granted necessary insight into the basis for Woba’s proposed solution. In the case of price calculation models and similar trade secrets, Woba may demand that the review be carried out by an impartial third party subjected to a duty of confidentiality.

At any time, the Customer has the right to have an impartial third party subjected to a duty of confidentiality review Woba’s proposed solution. The Customer shall always bear the costs associated with the impartial third party.

If the proposed solution is not accepted, Woba may demand a reasonable fee for preparing the proposed solution.

If Woba demonstrates in the solution proposal that the change request cannot be implemented for technical or significant functional reasons, it may refuse to comply with a change request.

3.2 Change requests on the part of Woba
If Woba wishes to make changes in relation to what has been agreed, a request to this effect shall be made to the Customer.

Woba’s change request must contain a detailed solution description for the requested change, the price, the time required and the impact (if any) on the Product as a whole.

The customer must process this inquiry without undue delay, and no later than five Working Days after receipt, and notify Woba whether the change request can be accommodated. In cases where necessary to avoid significant losses for Woba, the Customer is obliged to accept changes which only insignificantly affect the usefulness of the Product for the Customer or the Customer’s employees’ use of the Product, and which do not entail additional costs or losses for the Customer.

4. Delivery

4.1 Schedule and Start Date
The customer’s approval of the Product is deemed to have taken place on the Start Date of the Agreement, at which point the Customer simultaneously obtains the right to use the Product on the terms contained in the Agreement.

5. The Customer’s obligations

5.1 General
The customer is obliged to actively contribute to Woba’s fulfilment of this Agreement, including by making information and employees available.

5.2. Subscription payment
For the Customer’s use of the Product, the Customer shall pay an annual fee to Woba as specified in the Agreement. All amounts are stated in Danish kroner.

The subscription payment includes customs duty and other taxes, apart from VAT, added in accordance with the relevant legislation in force at any given time.

Once a year, and without the Customer’s prior consent, Woba is entitled to adjust the subscription payment and the hourly rate of consultancy fees in line with the Maximum Adjustment Rate. 

5.3. The customer’ss obligation to provide information and superusers
Without delay and at its own initiative, the Customer is obliged to provide Woba with such information about the extent of the Customer’s and the Customer’s employees’; use of the Product as is necessary for Woba to obtain a correct and satisfactory basis for issuing invoices to the Customer in a timely manner in
accordance with the Agreement.

The Customer is also obliged to appoint a number of employees with special expertise in the use of the Product (“superusers”;) through whom the Customer will communicate about the Customer’ss use of the Product after the takeover day.

5.4 Security
The Customer shall maintain a reasonable level of security in order to protect the Product against use by persons other than the Customer’s employees. The Customer shall, among other things, ensure that the Customer and its employees use sufficiently strong passwords and that these are kept confidential.

6. Warranty

6.1 General limited warranty
Woba guarantees that, during the Period of the Agreement, the Product essentially functions in accordance with the requirements set out in this Agreement.

6.2 Liability for subcontractors
Woba is liable for its subcontractors' services under this Agreement in exactly the same way as for its own services.

6.3 Compliance with legislative requirements
Woba guarantees that, during the Period of the Agreement, the Product complies with general Danish legislative requirements, including GDPR, as applicable at any given time, though Woba expressly waives liability for obtaining necessary consents from persons who use the Product other than such consent as is given by the User in connection with logging into the Product.

Unless expressly stated in the Agreement, this guarantee does not cover specific legislation, such as industry-specific legislation, applicable to the Customer.

7. Breach of contract on the part of Woba

7.1 Defects
A defect in the Product exists if the Product does not fulfil the guarantees given by Woba or otherwise fails to essentially function or perform as stated in the Agreement. In this connection, the Customer is made aware that – like all other software – the Product may contain minor errors and have minor outages. Such minor errors (bugs) or outages as do not significantly hinder the Customer’s use of the Product are not considered defects, but Woba shall endeavour to remedy these on an ongoing basis.

Woba shall ensure that defects are remedied so that at all times the Product meets the Requirements Specification. The Customer hereby consents in advance to Woba and/or its operator carrying out standard maintenance and operation of the Product, provided that this does not entail interference with
the Product.

The Customer is not entitled to demand a proportional rebate.

7.2 Termination
The Customer may only cancel the Agreement if a significant breach is identified (substantial defects or significant delay) and the breach is not remedied within a reasonable time despite two written complaints from the Customer sent at least 14 days apart. The Customer is not entitled to limit the cancellation to a part of the Agreement.

In the event of cancellation, Woba’s right to future payment expires at the same time as the Customer and its employees are required to cease using the Product. In such cases, Woba is entitled to interrupt such availability of use at its own initiative.

8. Customer’s circumstances
If the Customer defaults on its payment obligations under this Agreement, Woba is entitled to interest in accordance with the rules of the Danish Interest Act.

The Customer is responsible for any delay caused by the Customer’s breach of contract or delay in fulfilling the Customer’s obligations under the Agreement. If the Customer’s failure to comply with its obligations under the Agreement results in unused/wasted time or increased effort, Woba is entitled to charge a fee for time spent at the same hourly rate as applies to other Woba consultancy assistance, along with any additional costs that Woba might incur.

Woba is also entitled to cancel this Agreement if Woba has submitted a written claim to the Customer stating that the Customer has breached its payment obligations in a manner specified by Woba, and that failure to pay within 10 Working Days will result in the Agreement being cancelled if the Customer fails to fulfil its payment obligations before expiry of this deadline. If the Agreement is cancelled, the Customer’s access to the Product is suspended.

9 Compensation and liability regulation
The parties are liable to pay compensation under the general rules of Danish law.

However, Woba is in no case liable for operating losses, consequential damages or other indirect losses. Loss or damage to Data is considered indirect loss.

Woba is not liable to pay compensation pursuant to the rules of the Danish Product Liability Act, as applicable at any given time, for losses incurred by the Customer as a result of installing or connecting to and using the Product.

The above limitations on Woba’s liability only apply if the loss cannot be attributed to intentional or fraudulent behaviour on the part of Woba.

In any event, Woba’s liability cannot exceed the amount corresponding to the annual subscription payment as most recently invoiced (excluding any one-time set-up fee).

10. Force majeure
Pursuant to this Agreement, neither Woba nor the Customer shall be considered liable towards the other party with regard to matters which are beyond the control of the parties and which the party in question should not reasonably have taken into account when signing the Agreement nor avoided or overcome. Circumstances affecting a subcontractor are only considered force majeure if, for Woba, the arising obstacle is covered by the first clause and is one Woba should not reasonably have avoided or overcome.

Crashes, other disruptions in or damage to Data in the Product caused by failure of power supplies or telecommunications, legal intervention or administrative acts, natural disasters, war, civil unrest, sabotage, terror or vandalism (including computer viruses and hacking) are considered force majeure and do not entitle the Customer to claim a defect in the Product.

In the event of a delay, force majeure can be invoked at most for the number of Working Days that the force majeure situation persists. If a deadline for Woba is postponed due to force majeure, the payments linked to it are postponed
correspondingly.

Force majeure can only be invoked if the party in question has given written notice of this to the other party no later than three Working Days after the force majeure has occurred.

The party not affected by the force majeure situation is entitled to cancel the Agreement if the agreed Start Date for the Agreement is exceeded by 90 Working Days as a result of force majeure. In the event of such cancellation, both parties shall return what they have received from the other party as soon as possible, and there shall then be no further claims between the parties.

11. Rights to and protection of Data

11.1 Protection of Data
It is the Customer’s task and responsibility to ensure that the Customer’s storage and processing of Data, other than through the Product, complies with the legislation in force at any given time. For this purpose, Woba provides a standard data processing agreement, which can be found at https://www.woba.io./

11.2 Rights to Data
In relation to Woba, the ownership of the Data, and of the analyses and results thereof that the Product produces, belongs to the Customer both during and after the Period of the Agreement. Upon termination of the Agreement for whatever reason, the Customer thus has the right to have all of the Customer’s Data handed over. For assistance with this, Woba is entitled to charge remuneration according to time spent at the same hourly rate as applies to other Woba consultancy assistance.

12. Intellectual property rights

12.1. Rights to the Product and transfer to third parties
During the Period of the Agreement, the customer obtains a time-limited, non-exclusive right to use the Product. The right of use only applies to the legal entity that purchased it, and does not apply to the Customer’s affiliated companies, unless otherwise agreed in the subscription agreement. The Customer
and the Customer’s employees may only use the Product in accordance with this Agreement.

The Product is solely for the Customer’s own internal use and may not be used commercially by the Customer, e.g. as part of delivery of the Customer’s services, unless otherwise stated in the Agreement.

The Customer’s right to use the Product for the Period of the Agreement is personal and may not, without Woba’s express written consent, be transferred, sublicensed, sold, lent or in any other way handed over or entrusted to a third party. The sole exceptions to this are the Customer’s employees insofar as this is necessary for them to function as respondents to, or superusers of, the Product to the extent stipulated in the Agreement.

In cases where Woba has accepted that the Customer entrusts the use of the Product to a third party, the Customer is liable to Woba for the relevant third party’s compliance with the terms and conditions contained in section 16 of the Agreement.

The Customer’s right to use the Product does not imply any right to further develop, debug, decompile, reverse engineer, disassemble, adapt or change the Product, to copy it for own or third-party use, or to let third parties carry out such actions, unless the Customer has the right to do so under the Agreement or in accordance with applicable, non-derogable legislation.

12.2. Third-party rights
Woba guarantees that the use of the Product does not infringe third-party copyrights or industrial rights such as pattern, design or patent rights.

The acknowledgment assumes that the Customer immediately gives Woba written notice should the Customer become aware of possible infringements of rights and that, to the extent necessary, the Customer assists Woba with the provision of information and, if necessary, allows Woba to intervene on the Customer’s side in a possible infringement case.

13. Duty of confidentiality
The parties must observe confidentiality to the usual extent for matters that are not generally known.

However, Woba has the right to refer to the Agreement and use the customer’s name and logo for marketing purposes, though without mentioning the content of the Agreement.

14. Transfer
Apart from what is expressly stated in the Agreement, the Customer cannot, without Woba’s written consent, transfer its rights and obligations under this Agreement to a third party.

Woba has the right to transfer the Agreement to a third party provided that the continued fulfilment of the Agreement is not thereby put in significant jeopardy.

15. Period and termination of the Agreement
The Agreement shall enter into force with effect from the signing of the Agreement and shall be valid from the Agreement’s Start Date and for Periods of 12 months until terminated by either party. Termination shall be in writing and with three months’ notice.

Termination of the agreement during its Period does not entitle the Customer to a proportionate refund of any subscription payment that has already been made.

16. Disputes
This Agreement is subject to Danish law.

If a disagreement arises between the parties in connection with this Agreement, the parties must, in a positive, cooperative and responsible spirit, seek to initiate negotiations with a view to resolving the dispute. If necessary, it should be sought to escalate the negotiations to a high level in the parties’ organisations. If this does not lead to a resolution, the parties must seek to reach an agreement to jointly appoint an independent and expert mediator who can mediate and make non-binding proposals for the resolution of the dispute. When what is described in the above paragraph has been attempted, each of the parties is entitled to demand that the dispute be settled definitively by arbitration.

The arbitral tribunal shall be composed of three members appointed by the president of the high court in whose jurisdiction Woba’s head office is located. The chairman must fulfil the conditions to be a judge. The parties may make a recommendation for the other two tribunal members, who are appointed with appropriate consideration for the special expertise that must be deemed desirable in assessing the dispute brought before the arbitral tribunal.

If there is no majority for a result, the chairman’s vote shall be
decisive.

The arbitral tribunal shall determine its own procedure. The arbitral tribunal’s decision, which must be grounded, should be delivered as soon as possible and, if possible, within six months of the appointment of the tribunal.