1.1 These Wudpecker General Terms and Conditions (“GTC”) shall apply to the Services provided by Wudpecker Oy (“Wudpecker”) to the customer (“Customer”) under the Agreement.
1.2 Wudpecker and Customer are hereinafter referred to also as a “Party” or jointly the “Parties”.
1.3 “Affiliate” of a Party means an entity (i) which is directly or indirectly controlling such Party; (ii) which is under the same direct or indirect ownership or control as such Party; or (iii) which is directly or indirectly owned or controlled by such Party. For these purposes, an entity shall be treated as being controlled by another if that other entity has fifty (50%) percent or more of votes in such entity, is able to direct its affairs and/or to control the composition of its board of directors or equivalent body.
1.4 “Agreement” means the Software as a Service Agreement entered into between the Parties, including any Appendices attached thereto as well as any amendments or addenda to the Agreement and/or its Appendices or any additional Services that may subsequently be agreed upon between the Parties.
1.5 “Intellectual Property Rights” means patents (including utility models), design patents, and designs (whether or not capable of registration)m chip topography rights and other like protection, copyright, trademark and any other form of statutory protection of any kind and applications for any of the foregoing respectively as well as any Confidential information.
1.6 “Service” means Wupecker’s services including the recording, transcribing, and analyzing of meetings.
1.7 “Software” means Wudpecker’s proprietary software, including any changes, updates, upgrades, modifications and enhancements made thereto, and any related modules, add-ons, tools, browser plugins and applications as well as any documentation relating thereto all of the foregoing to the extent offered by Wudpecker.
2.1 Subject to the Customer’s compliance with all the terms of the Agreement and against due payment of the agreed Fees, Wudpecker grants to the Customer and its Affiliates a non-exclusive, non-transferable, limited right to access and use the Service during the term of the Agreement solely for the purpose specified in the Agreement. Customer shall be fully liable of its Affiliates and its sub-contractors’ use of the Services.
2.2 The Customer is not entitled to resell or in any other way distribute the Service to third parties without the written consent of Wudpecker.
2.3 Wudpecker is entitled to produce the Service as it deems appropriate. Wudpecker shall be entitled to make such changes to the Service that (a) relates to the production environment of the Service and does not materially affect the contents of the Service; (b) is necessary to prevent data security risks related to the Service; or (c) results from law or regulation by authorities. If Wudpecker makes a change to the Service as specified in section 2.3 which has material effect on the Service, Wudpecker shall inform the Customer of the change in advance, or if this is not reasonably possible, without delay after Wudpecker has made the change to the Service.
2.4 Wudpecker shall be entitled to make other changes to the Service than specified in section 2.3 after informing the Customer of the change in advance. If the change has a material effect on the contents of the Service, Wudpecker must inform the Customer of the change in writing at least thirty (30) days before the effective date of the change. If the Customer does not accept the change to the Service, the Customer shall have the right to terminate the Agreement to end on the effective date of the change by notifying Wudpecker thereof in writing.
2.5 The Customer acknowledges that the Service cannot be deployed before the Customer has provided the required information and fulfilled its other obligations under the Agreement and Wudpecker shall not be liable of any delays or damages attributable to the Customer’s breach of its obligations under the Agreement.
3.1 The Customer undertakes to perform the tasks for which it is responsible with due care and in conformity with the Agreement and as further specified or as otherwise agreed between the Parties.
3.2 The Customer shall be responsible for acquiring and maintaining the hardware, connections and software that the Customer needs to use the Service. The Customer shall be responsible for the data communication and other comparable costs related to the use of the Service. The Customer shall be responsible for preparing the hard-ware, connections, software and data systems to meet the requirements specified by Wudpecker.
3.3 The Customer shall provide Wudpecker with sufficient and correct information for the deployment and also otherwise reasonable contribute to the deployment of the Service. The Customer shall be responsible for the data, information and instructions provided to Wudpecker and for keeping them up to date. The Customer shall be responsible for the clarity, readability and usability of the data, information and instruction provided to Wudpecker and/or submitted to the Service and/or to the Software.
4.1 This Agreement shall enter into force at the Effective Date and shall remain in force during the term specified in the Agreement.
4.2 Each Party shall have the right to terminate the Agreement for cause with immediate effect if (a) the other Party is in material breach of its obligations under the Agreement and does not remedy such breach (where capable of remedy) within thirty (30) days after receiving a written notice of the breach from the other Party, or (b) if the other Party is declared bankrupt, is placed into liquidation or financial restructuring or is otherwise insolvent.
4.3 If the Agreement has been agreed to be in force until further notice, the Customer has the right to terminate the Agreement upon thirty (30) days prior written notice and Wudpecker upon ninety (90) days prior written notice. In the event the Customer uses this right to terminate the Agreement, Wudpecker shall not be obliged to refund any advance made payments whatsoever to the Customer.
5.1 All rights, title, and interest, including all Intellectual Property Rights in and to the Service including any improvement or development thereof shall belong exclusively to Wudpecker (or its licensors’, as the case may be).
5.2 The Customer shall retain all rights, title, and interest in and to any data transferred or stored by the Customer in the Service. By submitting any data to Wudpecker, the Customer warrants that it has obtained all necessary rights, license, and permissions under the applicable laws, decrees, regulations and agreements to submit the data to Wudpecker and have Wudpecker process such data for the purposes of the Agreement.
5.3 Wudpecker agrees to defend the Customer, at its own expense, against any third party claims or actions where a third party claims that the use of the Service in accordance with the terms and conditions of the Agreement infringes upon the copyright or patent right of such third party valid in the European Economic Area, provided that the Customer:
5.3.1 Notifies Wudpecker of such claim immediately upon receipt of notice thereof;
5.3.2 Provides Wudpecker, free of charge, with all available information, permissions and assistance;
5.3.3 Grants Wudpecker the exclusive and sole right to control the defense of the claim; and
5.3.4 Does not agree on any settlement of such claim or action prior to a final judgment thereon by a competent court of law or court of arbitration, without the express prior written consent of Wudpecker.
5.4 If the customer has acted in accordance with Section 5.3.1 to 5.3.4, Wudpecker shall pay any damages finally aware to the third party claimant by a competent court of law or court of arbitration.
5.5 If Wudpecker justifiably deems that the use of the Service infringes or may infringe upon any third party rights, Wudpecker shall have the right, at its own expense and in its sole discretion, to (i) modify the Service or if it’s not commercially reasonable for Wudpecker to modify the Service; (ii) terminate the Service and/or the Agreement subject to a notice period defined by Wudpecker, upon which the Customer agrees to cease using the Service and Wudpecker agrees to reimburse the Fee paid by the Customer for the Service, less a proportion equal to the time of use of the Service by the Customer.
5.6 The indemnity in this Section 5 does not apply to, and Wudpecker is not liable for any claim that. (i) is based on a claim by any Customer Affiliate; or (ii) is based on the modification or alteration of the Service by the Customer or any third party on behalf of the Customer; or (iii) results from Wudpecker complying with any instructions, specifications or design given by the Customer or any third party under the command and control of the Customer.
5.7 This Section 5 sets out the entire liability of Wudpecker and Customer’s sole remedy in case of any infringement of any third party rights.
6.1 Each Party (for the purpose of this Section 6, “Receiving Party”) shall keep in confidence all material and information (including but not limited to any algorithms used in the Service or in the Software, technical, commercial or financial information, and Intellectual Property Rights received from the other Party (for the purposes of this Section 6, “Disclosing Party”) and marked as confidential or which should be understood to be confidential (“Confidential Information”), and may not use such Confidential Information for any other purpose than those set fort in the Agreement. The Customer shall not use, reverse engineer, disassemble, decompile or disclose any data or Confidential Information received from Wudpecker (regardless of the contents of that data or Confidential Information) for the purposes of developing service or software similar or corresponding to the Service or the Software or service or software replacing the Service or the Software.
6.2 The Receiving Party shall not have the right to disclose Confidential Information to any third party, except its Affiliates and subcontractors that need to know such Confidential Information for the purpose of the Agreement and while involved in the performance of the Agreement. Any disclosure of Confidential Information to Affiliates and subcontractors shall only take place subject to a written non-disclosure agreement at least as protective of the Disclosing Party’s rights and interests in its Confidential Information as set out in this Section 6 and such non-disclosure agreement shall not grant an Affiliate or subcontractor any right to further disclose or distribute the Confidential Information of the Disclosing Party.
6.3 The confidentiality obligation shall, however, not apply to material and information, (i) which is or later becomes generally available or otherwise public without a breach of the Agreement by the Receiving Party; or (ii) which the Receiving Party has received from a third party without any obligation of confidentiality; or (iii) which was rightfully in the possession of the Receiving party prior to receipt of the same from the Disclosing Party without any obligation of confidentiality related thereto; or (iv) which the Receiving Party has independently developed without any use of or reference to the Confidential Information received from the Disclosing Party.
6.4 Notwithstanding to the provisions of the Agreement, Wudpecker may collect, analyze, and use any aggregated, de-indentified data and related information for the purposes of product and business development. In addition, Wudpecker may use, store, or disclose such information or material derived from such information, as long as it is in a form that does not identify or is not attributable to any individual or company.
6.5 Each Party shall promptly upon termination of this Agreement, or when the Party no longer needs the Confidential Information in question for the purpose of performing its obligations or exercising its rights under the Agreement, cease using the Confidential Information received from the Disclosing Party, and unless the Parties separately agree on destruction of such Confidential Information, return the Confidential Information in question (including all copies and reproduction thereof) to the Disclosing Party. Each Party shall, however, be entitled to retain the copies required by law or regulations applicable to such Party.
6.6 Notwithstanding the generality of Section 6.1 and Section 6.2 above, each Party shall be entitled to use the general professional skills and experience acquired in connection with the performance of the Agreement and retained in the unaided memories of the personnel of a Party, provided such use complies with this Section 6.
6.7 The rights and obligations under this Section 6 shall survive the expiry or termination of this Agreement for a period of three (3) years from such expiry or termination.
7.1 To the extent the Customer inputs any personal data into the Service, Wudpecker (or its subcontractor where appropriate) processes such data on behalf of and for the benefit of the Customer while the Customer remains at all times the data controller for such personal data. Such processing of personal data by Wudpecker is subject to terms set out in this Section 8. Wudpecker processes the personal data submitted by the Customer to Wudpecker in accordance with the Customer’s instructions and applicable data protection legislation.
7.2 Wudpecker implements appropriate technical and organizational measures to secure the Customer’s personal data; such measures include include implementing reasonable and sufficient confidentiality obligations.
7.3 Wudpecker shall assist the Customer in complying with its obligations under the applicable data protection laws, including assisting in responding to requests by data subjects and supervisory authorities to the extent reasonably necessary. Wudpecker shall notify the Customer of any data breaches concerning personal data. Wudpecker shall be entitled to charge for any reasonable costs and expenses incurred as a result of such assistance.
7.4 Wudpecker shall make available to the Customer information reasonably necessary to demonstrate compliance with the applicable data protection laws and contribute to audits conducted by the Customer or its representative in relation to the processing of personal data by Wudpecker. Wudpecker shall be entitled to charge for any reasonable costs and expenses incurred to Wudpecker.
7.5 Upon Customer’s request, Wudpecker shall provide information on where its subcontractors servers are located. The Customer represents and warrants that it has ob-tained the necessary permits, authorizations and consent to allow Wudpecker to process personal data in context of the Service as set out in the Agreement.
7.6 The Customer understands and accepts that the Customer’s data may be provided to Wudpecker’s subcontractors for the purposes of providing the Service and for securing and improving their services as well as other purposes set out in this Agreement. Wudpecker shall reasonably ensure that such subcontractors are subject to equivalent requirements regarding confidentiality and data protection, as those set out in the Agreement.
7.7 Wudpecker data retention is rolling year and two previous calendar years. For longer data retention, fees apply upon negotiation.
7.8 Upon termination of the Agreement or upon the Customer’s written request, Wudpecker shall either destroy or return to the Customer the personal data processed hereunder.
8.1 Each Party shall comply with the requirements agreed between the Parties in writing and the legal requirements set out in applicable laws related to data security. To the extent the Parties have not agreed otherwise in writing regarding data security requirements, the terms set out below in Section 8.2 shall apply.
8.2 Each Party shall ensure that the Party’s own environments, such as equipment, communications, network, service production facilities and business premises, are protected against data security threats in accordance with the adequate data security procedures. Wudpecker shall not be responsible for the data security of the general communications network or any disturbance in the general communications network.
9.1 Wudpecker does not warrant that the Service will be uninterrupted or error-free. However, Wudpecker agrees to use commercially reasonable efforts to correct any material error or deficiency in the Service.
9.2 The Customer shall be sole liable of errors or deficiencies attributable to (i) changes to the Service made by the Customer which have not been approved by Wudpecker in writing; (ii) use of the Service contrary to the Agreement, or the written instructions given by Wudpecker; (iii) disturbances or interruptions in the Service due to data network; or (iv) a service or product not supplied by Wudpecker or other similar reason outside the control of Wudpecker.
9.3 Wudpecker does not accept any liability for the operation and function of any Customer or third-party products, services, actions or omissions, including, but not limited to, those of third-party data providers.
9.4 To the extent allowed by mandatory law, Wudpecker does not have any other responsibility or liability for the Service. The Service is provided “as is” and “as available” and Wudpecker expressly disclaims all other express or implied warranties, including but not limited the warranties of merchantability, correctness and fitness for a particular purpose.
10.1 The total aggregate liability of a Party under and in relation to this Agreement shall not exceed the lesser of 5,000 EUR or an amount equal to the Fees (excluding VAT) paid to Wudpecker during the six (6) immediately preceding months the event giving rise to the liability.
10.2 Neither Party shall be liable to the other Party (or any third party) for any indirect, incidental, consequential, punitive or special loss or damage, or any loss of profit, loss of revenue, loss of business, loss of data or loss of goodwill.
10.3 The limitations of liability shall not apply to damages caused by willful misconduct or gross negligence or to damages caused by the breach of the confidentiality obligations under Section 7 (Confidentiality) or the Customer’s breach of Wudpecker’s Intel-lectual Property Rights.
11.1 During the term of the Agreement, the Customer shall have the right, from time to time but not more frequently than once each contract year, under reasonable conditions of time and place, to audit by an independent third party auditor, including without limitation the Customer’s auditors, or by representatives of a competent authority, all records of Wudpecker materially pertaining to the provision of the relevant Service as may be reasonably required for the Customer’s internal or external audit purposes, excluding, however, Wudpecker’s records regarding internal pricing and Wudpecker’s other clients’ information. Such third party must be a reputable independent entity who is not a competitor of Wudpecker and who has, prior to commencement of any auditing activities, signed a confidentiality agreement with Wudpecker that is substantially similar to Clause 7 (Confidentiality) above. The audit timetable, cost, method and scope will be agreed beforehand between the Parties and the audit may not burden Wudpecker or endanger Wudpecker or Wudpecker’s other client’s delivery, quality, security or confidentiality. Wudpecker agrees to correct any non-compliance with the Agreement found during such audit or inspection without extra costs. The Customer agrees to hand over a copy of the audit report to Wudpecker.
11.2 The cost relating to any independent third party auditor used to perform the audits shall be borne by the Customer. The Customer shall bear its own cost in relation to the audits and Wudpecker will bear all reasonable costs incurred by it in relation there-to.
12.1 If due performance of the Agreement by either Party is affected in whole or in any part by reason of any event, omission, accident or other matter beyond the reasonable control of such party (including without limitation any kind of labour unrest and any kind of disturbance in any data communication for which that party is not responsible for), it shall give prompt notice thereof to the other party and shall be under no liability for any loss, damage, injury or expense suffered by the other party for such force majeure circumstance. For the sake of clarity it is stated that for the early termination of the agreements Supplier has with the providers of hardware or software services used to produce the Service, due to no fault of Wudpecker, shall be considered a force majeure situation.
13.1 No failure to exercise or delay in exercising any right, power or privilege vested in any party under the Agreement shall operate as a waiver of that party's right to do so.
13.2 All amendments to the Agreement shall be made in writing.
13.3 In the event that any provision of the Agreement is found to be unenforceable or illegal the remaining provisions shall continue to be in full force and effect and the unenforceable provisions shall be deemed to be amended to such extent as is necessary to make them binding and enforceable on the parties.
13.4 Any terms and conditions that by their nature or otherwise reasonably should survive a cancellation or termination of this Agreement shall also be deemed to survive.
14.1 This Agreement shall be governed by and construed in accordance with the laws of Finland, excluding its choice of law provisions.
15.1 Any dispute, controversy or claim arising out of or relating to this contract, or the breach, termination or validity thereof shall be finally settled by arbitration in accordance with the Arbitration Rules of the Finland Chamber of Commerce. The number of arbitrators shall be one. The seat of arbitration shall be Helsinki, Finland.
For futher information, contact email@example.com (CEO, co-founder @ Wudpecker)
Last Updated: 01/03/2023