Keesing shall provide support as described in this Annex and will meet the service levels set out herein.
2. Support Responsibilities
Keesing will provide support in implementing the Keesing Platform (Implementation Support) in the environment of [[-] (the “Customer”)]. Keesing will provide support for the use and maintenance of the Keesing Platform (Use & Maintenance Support) to the Customer online, by telephone and/or e-mail for (5) regular working days per week, during normal business hours between 9.00 and 17.00 hrs Central European Time.
Use and Maintenance Support will include the following:
– provide general information on the product and information on use of Keesing Platform
– provide, at Keesing’s sole discretion, Keesing Platform updates and new versions, including security updates
– identify and solve technical problems
– fixing bugs/defects or generating work-arounds, including any security vulnerabilities
3. Service Level Guarantees
Keesing shall exercise commercially reasonable efforts to guarantee the availability of the Keesing Platform and a fluent content delivery to the clients of the Customer.
The following guarantees will apply:
– Keesing guarantees an uptime of the Keesing Platform of 98%
– Keesing guarantees the continuous delivery and availability of the content that is part of the agreement
Keesing will not be liable for outage of the platform caused by the Customer, force majeure events or other circumstances beyond Keesing’s control.
4. Response Time
Keesing shall exercise commercially reasonable efforts to correct any bugs and errors (‘Errors’) reported by the Customer in accordance with the priority level reasonably assigned to such Error by Keesing.
The following definitions will apply to such prioritization:
– “Priority 1 Error” means an Error which (i) renders the Keesing Platform inoperative; or (ii) substantially degrades performance; or (iii) causes an important feature to be unavailable; or (iv) causes a complete failure of the Keesing Platform.
– “Priority 2 Error” means an Error which degrades the performance the Keesing Platform.
– “Priority 3 Error” means an Error which causes only a minor impact on Customer’s (or its end users) use of the Keesing Platform.
For Priority 1 Errors, Keesing shall immediately upon notification from the Customer start working on a resolution, either permanently or temporarily, in the form of a workaround or otherwise.
For Priority 2 Errors, Keesing shall within one working day acknowledge receipt of notification of the Error and start working on a resolution, at the latest, within 2 days thereafter.
For Priority 3 Errors, Keesing shall within one week acknowledge receipt of notification of the Error and start working on a resolution as part of its usual planned maintenance and update of the Keesing Platform.
5. Security Shut-Downs
Keesing will not be liable for not meeting the agreed service levels if connected to events resulting from an interruption or shut down of the Keesing Platform due to circumstances reasonably believed by Keesing to be a significant threat to the normal operation of the Keesing Platform (e.g., hacker or virus attack) or other circumstances beyond its control. In the event of such an interruption or shutdown, Keesing will return the Keesing Platform to normal operation as soon as reasonably possible.
Use of the Keesing Platform and any and all software and services and Materials related thereto are subject to this Keesing Acceptable Use Policy (“KAUP”). If there is a conflict between this KAUP and the Agreement between the Customer and Keesing, the Agreement will prevail.
This KAUP applies to anyone who uses the Keesing Platform and Materials, including without limitation any third party permitted by the Customer to use or access the Keesing Platform (‘End Users’). The Customer is required to inform those End Users and shall be responsible for adherence by these End Users to this KAUP.
Keesing reserves the right to amend or modify this KAUP at any time by amending this Annex II. Keesing will notify the Customer of any such amendments. By using or accessing the Keesing Platform, the Customer is agreeing to this KAUP and warrants it has advised its End Users of this KAUP accordingly.
The Customer agrees not to use, or encourage, promote, facilitate or instruct others, including End Users, to use the Keesing Platform to:
• Commit or encourage fraudulent or other illegal activities in violation of any applicable law or regulation;
• Infringe or misappropriate any copyright, trademark or other intellectual property, proprietary right, license right, or legal content protections
• Use, store, share, host, copy, distribute, display, publish, transmit or send content that is or may be deemed offensive, inflammatory, hateful, defamatory, discriminatory, obscene, abusive, invasive of privacy, harmful to others, or otherwise objectionable
• Access or probe any network, computer or communications system network or computing device systems without authorization;
• Attack, abuse, interfere with, surreptitiously intercept, or disrupt any other users of the Keesing Platform;
• Distribute unwanted, unsolicited or harassing mass e-mail or other messages, promotions, advertising, or solicitations (“spam”)
• Alter, forge or obscure mail headers or assume a sender’s identity without the sender’s express permission, nor collect replies to messages sent from another internet service provider if those messages violate this KAUP;
• Disable, interfere with, abuse, disrupt, intercept, circumvent or otherwise violate the security of the Keesing Platform
Keesing has the right, but does not assume the obligation, to monitor and investigate violations of this KAUP. Failure to comply with or breach of this KAUP constitutes a material breach of the terms and conditions upon which Customer is permitted to use the Keesing Platform, and at any time, may result in Keesing taking any and all actions in its sole discretion, including with immediate effect:
• suspending or terminating access to the Keesing Platform;
• removing or prohibiting access to content that violates this KAUP;
• legal proceedings against the Customer for reimbursement of all costs on an indemnity basis (including, but not limited to, reasonable administrative and legal costs) resulting from the breach;
• further legal action against the Customer; and/or
• terminate the Letter Agreement, notwithstanding a claim for damages;
• disclosure of such information to law enforcement authorities as Keesing reasonably feels is necessary or appropriate.
Keesing and Customer shall, within 14 days after signature of the agreement to which these terms & conditions apply (the ‘Agreement’ ), agree on the Customer specific functional and technical specifications (‘Specifications’) of Keesing’s cloud based software platform for the online provision of puzzle games (the ‘Keesing Platform’).
2. With assistance of the Customer, Keesing shall amend and if required develop, in accordance with the Specifications, the Keesing Platform and provide the Customer, on a date to be mutually agreed between Keesing and Customer, access to the Keesing Platform for the purpose of acceptance testing. Minor defects shall not prevent acceptance and operational use of the Keesing Platform shall be deemed acceptance thereof. If the Customer does not give written notice to Keesing within 14 days following access to the Keesing Platform, the Customer shall be deemed to have accepted the Keesing Platform.
3. Upon acceptance, Keesing shall provide access to and use of the functionality, as software as a service, of the Keesing Platform. The Customer may use the Keesing Platform only for its own business purpose and its own end users. Access or provision of services to other third parties is not allowed. The Customer will not otherwise commercialize the Keesing Platform and shall not sell, resell, distribute, rent or lease the Keesing Platform, or include it in outsourcing.
4. Keesing provides the support as described in Annex I of the Agreement. The Customer is required to take out implementation support services before first operational use of the Keesing Platform.
5. The Customer is responsible for complying with the Keesing Acceptable Use Policy (“KAUP”) attached in Annex II, and shall procure that its end users also adhere to the terms of the KAUP. Violation by Customer (or its end customers) of the KAUP, may result in removal of Customer data (as defined below) or restricting, suspending or terminating access to the Keesing Platform.
6. The Customer is responsible for its own data and for data submitted by end users (‘Customer Data’). Keesing has no control over what the Customer or its end users submit through the Keesing Platform. The Customer is responsible for its own account information, password or other login credentials. The Customer agrees to use reasonable means to protect these credentials and the Customer will notify Keesing immediately of any known unauthorized use of the Customer account. All registration information the Customer provides, must be accurate and Customer will keep such information current.
7. The Customer retains all right, title and interest in and to Customer Data. The Customer grants Keesing the right to use and distribute the Customer Data only as reasonably required to perform its obligations under the Agreement and provide services associated with the Keesing Platform. Keesing will use personal data of Customer and, if applicable, personal data of its end users (‘Personal Data’) in accordance with the General Data Protection Regulation (‘GDPR’). Where permitted by applicable law, Keesing may process, transfer, copy, backup and store Customer Data and Personal Data in other countries or jurisdictions outside of the country where it was collected. The Customer is responsible for obtaining any required consent from Customer or its end users to such processing and transfer of Personal Data, including international transfers. Upon termination or expiration of this Agreement, Keesing shall make Customer Data available to Customer for a period of sixty (60) days following the date of termination. (i) For data protection law purposes, Keesing and The Customer are separate controllers with respect to the personal data that is processed in connection with the delivery of the Offered Puzzle Products. Consequently, Keesing and The
Customer are separately responsible for fulfilling their obligations as controllers under applicable data protection law, including but not limited to ensuring that:
(1) the processing of personal data that the Parties conduct has an appropriate legal basis, (2) appropriate security measures are in place, and (3) that each Party is responding to data subjects’ requests; and (ii) Keesing shall not place any tracking technologies, such as cookies or pixels, on The Customer’s website. Keesing shall process personal data of The Customer’s end users only for statistical purposes, and shall transfer such data to The Customer only in aggregated form, including statistics on the usage of the Offered Puzzle Products.
8. Keesing may enhance and/or change the features of the Keesing Platform as long as such changes and/or enhancements do not materially reduce the core functionality of the Keesing Platform.
9. Keesing or its licensors retain their ownership in all intellectual property rights to the Keesing Platform and its underlying technology, the software, and associated documentation, including puzzle games (the “Materials”). This ownership extends to all copies and portions of the Materials, and all improvements, enhancements, modifications, and derivative works. The Customer may use the Materials solely as part of the Keesing Platform.
10. The party receiving (the “Receiving Party”) information that is marked confidential or can reasonably assumed to be of a confidential nature (‘ Confidential Information) will exercise the same degree of care that it uses to protect its own Confidential Information but in no event less than reasonable care to (i) protect and not disclose to third parties any Confidential Information, (ii) restrict dissemination of Confidential Information to individuals with a need to know and who are under a substantially similar duty of confidentiality, and (iii) not use any Confidential Information for any purpose other than to perform its obligations under the Agreement. The Receiving Party’s obligations hereunder shall not apply to information that (i) is rightfully in its possession prior to receipt from the disclosing party, (ii) is or becomes publicly available other than as a result of a breach of the Agreement, (iii) is rightfully obtained by the Receiving Party from a third party under no obligation of confidentiality with respect to the information, or (iv) is independently developed by the Receiving Party. The Receiving Party may disclose Confidential Information to the extent required by law.
11. Keesing warrants that the Keesing Platform will materially comply with the Specifications. The sole and exclusive remedy for breach of warranty is (at Keesing’s ’option) to repair or replace the Keesing Platform or refund to the Customer the fees for the period in which the Keesing Platform did not materially comply. In order to receive either of these remedies, the Customer must promptly notify Keesing of such breach. Except as expressly stated in this section 11, to the extent allowed by applicable law, Keesing: (a) expressly disclaims all warranties and conditions of any kind, express or implied, including without limitation any warranty, condition or other implied term as to merchantability, fitness for a particular purpose or non-infringement; and (b) makes no warranty or representation that: (i) the Keesing Platform will be uninterrupted, completely secure, error-free, or free of viruses; or (ii) the Keesing Platform will meet the business requirements of the Customer or will operate with existing systems of the Customer.
12. Keesing will defend the Customer against third party claims brought against the Customer to the extent arising solely from an allegation that its use of the Keesing Platform or the Materials directly infringes a third party patent or copyright. Keesing will indemnify the Customer against damages finally awarded against the Customer by a court of competent jurisdiction or a settlement amount approved by Keesing.
13. The obligations of Keesing to provide indemnification will not apply if the claim results from (a) Customer’s breach of this Agreement, (b) use of the Keesing Platform outside the scope of the Agreement, (c) combination, operation, or use of the Keesing Platform with products, software, services or business processes not provided or approved by Keesing, (d) compliance by Keesing with any designs, specifications, requirements or instructions provided by the Customer, (e) use of non-current or unsupported versions of the Keesing Platform.
14. In the event a claim is made or likely to be made, Keesing may, at its option, (i) procure for the Customer the right to continue using the Keesing Platform or the Materials under the terms of the Agreement, or (ii) replace or modify the Keesing Platform or the Materials to be noninfringing without material decrease in functionality. If these options are not reasonably available, Keesing may terminate the Agreement upon written notice to the Customer and refund Customer a pro rata portion of the price the Customer originally paid to Keesing for access to and use of the Keesing Platform and the Materials for the remainder of the unexpired term.
15. Keesing cannot be held responsible for any claims arising from the use of the platform by the end users of Customer.
16. The party against whom a third party claim is brought will (a) timely notify the other party in writing of the claim and (b) reasonably cooperate in the defence of the claim. The party that is obligated to defend a claim will have the right to fully control the defence and to settle the claim; provided, however, that any settlement of a claim shall not include a financial or specific performance obligation on, or admission of liability by, the party against whom the claim is brought. These indemnification obligations are the parties’ entire obligation and exclusive remedy regarding any claims for breach, including intellectual property infringement.
17. All liability for claims related to, or arising out of, the Agreement or use of the Keesing Platform or the Materials, shall not exceed the fees paid to Keesing for use and access to the Keesing Platform and Materials during the twelve (12) months before the last event that gave rise to the claim. This limit is in the aggregate and not per incident. In no event will either party be liable for: (a) indirect, consequential damages; (b) loss or corruption of data or interrupted or loss of business; or, (c) loss of revenues, profits, goodwill or anticipated sales or savings. This limitation of liability applies whether the claims are in warranty, contract, tort (including negligence), infringement or otherwise. Nothing in this Agreement limits or excludes any liability that cannot be limited or excluded under applicable law.
18. Either party may terminate the Agreement immediately by giving written notice to the other party, if the other party materially breaches this Agreement and does not cure that breach within 30 days after receiving written notice of the breach (without prejudice to the right of Keesing to immediately suspend or terminate for breach of the KAUP).Upon any termination or expiration of the Agreement, the Customer must cease any further use of the Keesing Platform and Materials and destroy any copies of associated documents and software within Customer’s control.
19. Keesing may assign the Agreement and may subcontract the performance of obligations under the Agreement to third parties, without consent of the Customer. Any subcontracting shall not relieve Keesing of any of its obligations under the Agreement. The Customer may not assign the Agreement without the prior written consent of Keesing.
20. Except for payment obligations, neither party will be responsible for failure of performance due to a Force Majeure event.
21. Keesing may provide the Customer with notice via email, regular mail and/or postings on the Keesing Platform any other website, used as part of the Keesing Platform.
22. This Agreement (ignoring any conflict of laws provision) is governed exclusively by the laws of Sweden, without any reference to its conflict of law principles. 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 Stockholm in accordance with the Rules of the Arbitration Institute of the Stockholm Chamber of Commerce. The arbitral tribunal shall be composed of one arbitrator. If the dispute relates to a claim not exceeding SEK 5,000,000, the rules of expedited arbitrations of the Arbitration Institute of the Stockholm Chamber of Commerce shall apply. The seat of arbitration shall be Stockholm, Sweden. The language to be used in the arbitral proceedings if so requested by a Party shall be English. Evidence may, however, be presented in English or Swedish as the case may be.