IMPORTANT NOTE: The German version of this document will govern our relationship, this translated version is provided for convenience only and will not be interpreted to modify the German version.
OKOMO last updated these Terms of Service on 03/22/2021.
By clicking (i) “Confirm” when subscribing to any of the Services or (ii) “Register” when creating an Account or otherwise using any of OKOMO’s Services, Customer or its representative acknowledges: (i) have read, understood and agree to this Agreement; (ii) be legally competent to enter into this Agreement; and (iii) that Customer is not prohibited from entering into this Agreement for any other legal reason.
“Account” means the account established by OKOMO and associated with Customer and the Services provided to Customer under the Agreement.
“Administrator” means the person(s) of Customer’s organization who is provided by OKOMO’s systems with appropriate rights in relation to the Services; who is responsible for the administration and management of the Accounts; and who has access to certain related functionality.
“AUP” means the Appropriate Use Policy for the Services available at https://okomo.com/acceptable-use-policy or any successor URL.
“Order Form” means the document in the form of a quotation, online form or direct order via email that may be entered into from time to time between Customer and OKOMO to offset certain fees, selected license, term and other material terms associated with this Agreement and executed by Customer.
“Documentation” means all technical user documentation provided to Customer in connection with the Services.
“End User” means a stakeholder group associated with Customer and/or its Users that uses the Services and communicates with Customer and/or its Users about the Services.
“Fees” means, collectively, variable and fixed usage fees and all other applicable fees and charges in connection with the Services.
“Intellectual Property” means all intellectual property and technology, regardless of form, including without limitation: (a) published and unpublished copyrighted works; (b) inventions and discoveries, including but not limited to business methods, compositions of matter, methods and processes, and new uses for any of the foregoing; (c) words, names, symbols, devices, designs and other designations, and combinations of the foregoing, used to identify or distinguish a business, good, group, product or service or to indicate a form of certification; (d) information that is not generally known or readily ascertainable by appropriate means, whether tangible or intangible; and (e) computer programs, operating systems, applications, firmware and other code, including all source code, object code, application programming interfaces, data files, databases, logs, specifications and other documentation thereof.
“Purchase” means an order for the Services and/or certain services of OKOMO, including licenses and consulting services, placed through the Order Form, via email or the Website.
“Communication Channel” means Customer’s websites, applications or other offerings owned and operated by (or for the benefit of) Customer and through which Customer uses the Services to interact with End Users.
“Customer” means, in the case of an individual accepting this Agreement on his or her own behalf, such individual, or, in the case of an individual accepting this Agreement on behalf of a company or other legal entity or legal community, the company or other legal entity or legal community on whose behalf such individual accepts this Agreement, and Affiliates of such company or legal entity or legal community (so long as they remain Affiliates) that have completed Purchases and/or Order Forms.
“Customer Data” means the content of the credentials, text messages, shared files and/or other communications stored or processed through the Services under the Agreement.
“Customer Property” means Customer’s websites, apps or other offerings that are owned and operated by (or for the benefit of) Customer and through which Customer uses the Services to communicate between Users and/or End Users.
“License” means any of the licenses provided to Customer, the features of which may be listed on the Website and which Customer may select by executing the Order Form. Free trial versions shall also be considered a License in this context.
“License Term” means, collectively, the Initial Term and the Renewal Term of a License.
“User” means Customer, an employee, consultant or contractor of Customer, Affiliates and their employees and contractors, or any other person using the Services through Customer’s Account, without any specific administrative or management rights of the Account being associated therewith.
“OKOMO App” means any mobile application or desktop client software included in the Services and provided by OKOMO.
“Services” means all services provided by OKOMO to Customer from time to time, including OKOMO’s software as a service applications, license and related services, including all enhancements, modifications, extensions, bug fixes, updates, upgrades and versions.
“Start Date” means the date on which Customer first subscribes to any of the Services.
“Affiliate” means any entity existing from time to time that is directly or indirectly controlled by, directly or indirectly controls, or is under common control with, the applicable entity.
“Website” means the website that is accessible via okomo.com.
2 Services of OKOMO
2.1 Description of the Services
OKOMO provides, for commercial purposes only, a cloud-based live communication solution that enables Customer or Users to interact with its end customers via a variety of communication channels (audio, video, chat, screen broadcast and appointment setting) within and by means of Communication Channel (as defined above) without limitation. The Customer may customize and adapt the Services to the extent provided by OKOMO, export customer data and usage reports from the Services, and use purpose-built integrations to certain third-party platforms, if any.
The Services also include the OKOMO Code used in the Customer’s communication channel to use and enable the Services.
2.2 Provision of the Services
Each of the Services is provided on a subscription basis for a fixed duration specified on the Order Form (each, the License Term). OKOMO may also provide consulting services (see clause 11) which the Customer may purchase in connection with the Services via the Order Form and which will subsequently be provided by OKOMO.
2.3 Access to the Services
Customer may access and use the Services for its own commercial purposes only and may access and make the Services available to Users in accordance with the terms and conditions of this Agreement and the usage restrictions set forth in the applicable Order Form. The Customer is prohibited from disclosing logins and/or passwords to third parties or making them available to third parties who are not Users.
2.4 OKOMO apps
To the extent that OKOMO provides OKOMO Apps for use with the Services, OKOMO grants to Customer, subject to all of the terms and conditions of this Agreement, a limited, non-transferable, non-sublicensable, non-exclusive license for the purposes of this Agreement to use the object code form of the OKOMO Apps internally during the applicable License Term, but only in connection with Customer’s use of the Services and in accordance with the Documentation and this Agreement. The License shall automatically terminate upon termination (whether ordinary or early) of this Agreement.
2.5 Provision of OKOMO Code
Subject to all terms and conditions of this Agreement, OKOMO grants Customer a limited, non-transferable, non-sublicensable, non-exclusive license for the purposes of this Agreement to copy the OKOMO Code, as provided by OKOMO, onto Customer’s Property solely in support of Customer’s use of the Services and in accordance with the Documentation and this Agreement. Customer must implement the OKOMO Code on Customer Property to enable the functionality of the Services. Customer will implement all OKOMO Code in strict accordance with the Documentation and other instructions provided by OKOMO. Customer acknowledges that any changes made to Customer Property after the initial implementation of the OKOMO Code may cause the Services to cease to function or to function improperly, and that OKOMO shall have no liability for the effects of any such changes made by Customer. The license will automatically terminate upon termination (regular or early) of this Agreement.
2.6 General limitations of the Services
The Customer is prohibited from: i) making the Services available or accessible to third parties, whether in return for payment or free of charge; ii) making the Services available or accessible to third parties, whether in return for payment or free of charge. ii) use the Services to provide any product or service to any third party or incorporate the Services into any product or service for any third party (subject to OKOMO’s separate prior written consent); iii) reconstruct, decompile, disassemble or otherwise similarly attempt to generate or obtain the source code of the Services or any non-public APIs of the Services; iv) copy, modify or create derivative works of the Services or the Documentation; v) remove or obscure any proprietary or other notices contained in the Services (including, without limitation, the designation “Powered by OKOMO” which may appear on Customer Property as part of the provision of the Services or references to reports or data generated by the Services); and vi) publicly disseminate information about the scope of services and details of the Services.
2.7 Free Trial Licenses
If Customer receives a free access or trial, demo or evaluation license of the Services (a “Trial License”), then Customer may use the Services in accordance with the terms of this Agreement for a term of fourteen (14) days or such other term as OKOMO may grant (the “Trial Term”). Trial Licenses are permitted solely for Customer’s use in determining whether to purchase a paid license for the Services. Trial Licenses may not include all of the features and functionality accessible as part of a paid license. If Customer does not enter into a paid license, this Agreement and Customer’s right to access and use the Services will terminate at the end of the Trial Term. OKOMO has the right to terminate a trial license at any time without notice or cause. Notwithstanding anything to the contrary in this Agreement, OKOMO shall have no liability, warranty, indemnification, support or other obligations with respect to the provision, availability and operation of the Trial License.
3 Customer obligations and customer data
3.1 Customer obligations
The Customer is obliged to pay the agreed fee to OKOMO for the use of the Services in accordance with clause 7.
The customer is obliged to make the AUP available to users and end customers in a suitable, downloadable form before they use the services for the first time and to ensure that users comply with them. The customer is fully liable to OKOMO for any violations of the AUP or this agreement by the users and end customers. OKOMO also reserves the right to suspend the provision of the Services without compensation or to block or delete access to any or all accounts, in whole or temporarily, if the use of the Services by the Customer (or the Users or End Users) violates these Agreements or the provisions of the AUP.
3.2 Data Protection
3.3 Rights to Customer Data
As between the parties, Customer retains all right, title and interest (including all intellectual property rights) in and to the Customer Data as provided to OKOMO. Subject to the terms and conditions of this Agreement, Customer hereby grants OKOMO a non-exclusive, worldwide, royalty-free right to use, copy, store, transmit, modify, create derivative works from, and display the Customer Data to the extent necessary to provide the Services to Customer. This right expires when the Customer deletes the Customer Data.
3.4 Storage of Customer Data
OKOMO does not offer an archiving service. OKOMO only agrees not to delete Customer Data prior to the end of the Customer’s respective license term, reserving in any case the right to delete Customer Data that contradicts this Agreement or that of the AUP. OKOMO expressly disclaims any other obligations with respect to storage.
OKOMO undertakes to take reasonable technical and organizational measures to prevent unauthorized access, use, modification or disclosure of Customer Data. However, OKOMO shall not be liable for any damages resulting from transmission errors, unauthorized access by third parties or other causes beyond OKOMO’s control.
5 Third-party platforms and integrations
The Services may support integrations with certain third party platforms. In order for the Services to communicate and connect with such Third-Party Platforms, Customer may be required to enter Third-Party Platform credentials in order for the Services to access and receive relevant information from such Third-Party Platforms. By enabling use of the Services with a Third Party Platform, Customer authorizes OKOMO to access Customer’s accounts with such Third Party Platform for the purposes described in this Agreement. Customer is solely responsible for complying with all relevant terms and conditions of the Third Party Platforms and maintaining appropriate accounts with the Third Party Platform providers in good standing. Customer accepts and agrees that OKOMO shall have no liability for Third Party Platforms or Customer Data exported to a Third Party Platform. OKOMO does not guarantee that the Services will maintain integrations with Third Party Platforms, and OKOMO may disable the Services’ integrations with Third Party Platforms at any time with or without notice to Customer.
6 Ownership and Use
This Agreement constitutes a license agreement for access and use of the Services. Customer acknowledges that it is granted only a right to use the Services and that, notwithstanding the use of the words “purchase,” “sale,” or similar terms in this Agreement, no ownership rights are transferred to Customer. To that extent, Customer acknowledges that OKOMO retains all intangible property rights (including all patent, copyright and trademark rights) and all other intangible assets (know-how, data other than Customer Data, trade secrets) in and to the Services and all Documentation, the Consulting Services and any related and underlying technology and documentation, and any derivative works, modifications or enhancements to the foregoing, including the incorporation of feedback (collectively, “OKOMO Technology”).
Further, Customer acknowledges that the Services are offered as a hosted online solution and that Customer has no right to receive a copy of the Services, except for the OKOMO Code and the OKOMO Apps in the format provided by OKOMO (see Section 2).
Customer may submit Feedback to OKOMO from time to time. OKOMO may freely use or exploit all Feedback in connection with the Services.
7 License Term, Fees and Payments
7.1 License Term and Renewals
Unless otherwise agreed, the License Term shall be twelve (12) months. Unless otherwise specified on the Order Form, each License Term shall automatically renew for an additional twelve (12) months unless either party gives written or electronic notice of termination by email at least thirty (30) days prior to the expiration of the current License Term. OKOMO shall notify Customer of the automatic renewal of the License or Services within a reasonable period of time prior to the expiration of the License Term.
7.2 Fees, payments and consequences of default
All fees are set forth in the applicable Order Form and are payable by Customer within thirty (30) days from the date of invoice, unless otherwise agreed in the applicable Order Form.
Thereafter, the customer shall be in default without further notice. If payment is not made within a further period of thirty (30) days, OKOMO shall be entitled to terminate this Agreement without notice and cease to provide the Services or suspend the provision of the Services (and all related services) until the Fees have been paid in full.
8 Term and termination
8.1 Fixed Term and Automatic Renewal
This Agreement shall be effective on the Start Date and shall terminate on the date of expiration of the License Term or termination of all License Terms. Unless otherwise specified in Section 7.2 on the Order Form, the License Term will automatically renew for twelve (12) months unless either party gives written or electronic notice of termination by email at least thirty (30) days prior to the expiration of the current License Term.
8.2 Early Termination for Cause.
Either party may terminate this Agreement (including any related Order Forms) without notice if the other party (a) fails to cure a material breach of this Agreement (including non-payment of fees) within thirty (30) days after written notice; (b) ceases to operate without a successor; or (c) seeks protection under any bankruptcy, receivership, trust, creditors’ agreement, arrangement or similar proceeding, or if any such proceeding is commenced against such party (and not dismissed within sixty (60) days thereafter).
In addition, OKOMO may terminate this Agreement without compensation and without notice if OKOMO determines (in its sole discretion) that a Customer or User or End User has breached the AUP.
8.3 Effect of Termination
Upon expiration or termination of this Agreement, Customer shall immediately cease all use of and access to all Services (including all related OKOMO Technologies) and delete (or, upon OKOMO’s first request, return) all copies of the Documentation, all OKOMO Access Codes, and all other OKOMO Confidential Information in its possession. Unless this Agreement has been terminated due to a breach by Customer, Customer may retain and use internally copies of all usage reports prepared by OKOMO prior to termination and exported by Customer as part of the Services. Customer acknowledges that after termination, Customer shall have no further access to Customer Data entered into the Services and that OKOMO may at any time delete such data stored by OKOMO that Customer has not requested to be released within 30 days. Unless an exclusive remedy is specified, the exercise of any remedy by either party under this Agreement, including termination, shall be without prejudice to any other remedy it may have under this Agreement, by law or otherwise.
8.4 Survival of Individual Clauses
The following clauses shall survive termination of this Agreement without restriction or limitation: 2.6 (General Limitations on Services), 3.4 (Retention of Customer Data), 6 (Proprietary Rights and Usage), 7.2 (Fees, Payments and Consequences of Default), 9 (Scope of Liability), 12 (Indemnification), 13 (Confidentiality Agreement) and 15 (Miscellaneous).
9 Scope of liability
OKOMO provides its services carefully and professionally, but cannot guarantee in particular the uninterrupted availability and faultlessness of its website or services or their marketability. To the fullest extent permitted by law, OKOMO disclaims all liability, including without limitation, for any loss or damage which might arise from the loss of customer data or from the disclosure or use of such data by third parties, and for any other indirect or consequential loss or damage.
In a case of liability, regardless of the basis of liability, OKOMO’s liability is limited to the amount of the license fees paid by the customer in the last 12 months before the damage occurred.
Neither party shall be liable to the other for any delay or failure in performing any obligation under this Agreement (other than non-payment of fees) if the delay or failure is due to unforeseen events occurring after the signing of this Agreement and beyond the reasonable control of the respective party, such as. e.g., strike, blockade, war, pandemic, acts of terrorism, riot, natural disaster, failure or impairment of power supply or telecommunications or data networks or services, or denial of a license by a governmental authority.
10 Availability of the Services
10.1 Target Availability
OKOMO shall use commercially reasonable efforts to make the Services available with an average uptime of 99% in each calendar month (“Target Availability”).
In calculating uptime, unavailability will not be considered to the extent it is due to the following: (a) Customer’s use of the Service in a manner not authorized in this Agreement or the applicable Documentation; (b) general Internet restrictions, force majeure events, or other factors beyond OKOMO’s reasonable control; (c) Customer’s equipment, software, network connections, or other infrastructure; (d) third party systems, acts, or omissions; or (e) scheduled maintenance or reasonable emergency maintenance.
11 Consulting Services
OKOMO will provide professional consulting services (“Consulting Services”) if purchased in the applicable Order Form. Unless the Consulting Services are provided on a fixed-price basis, Customer will pay OKOMO at the hourly rates set forth in the Order Form for any services provided in excess thereof. Customer shall reimburse OKOMO for reasonable travel and lodging expenses. Customer may use anything provided as part of the Consulting Services in support of Customer’s authorized use of the Services and subject to the terms regarding Customer’s rights to use the Services set forth in Section 2 (“OKOMO Services”). However, in doing so, OKOMO shall retain all right, title and interest in and to such work product, code or deliverables and any derivatives, enhancements or modifications thereof created by OKOMO (or its designees).
Customer agrees to indemnify and hold OKOMO harmless from any claim or demand made by any third party arising out of Customer’s use of the Services, connection to the Site, breach of this Agreement, or infringement of the rights of other users of the Services. Such indemnification shall include payment of reasonable legal expenses incurred in defending against any such claim. The Customer shall defend any such claim at OKOMO’s first request and at its own cost and risk.
OKOMO shall, as soon as reasonably practicable, (i) notify Customer of such claim, (ii) permit Customer, in its sole discretion, to defend against such claim to the extent not inconsistent with OKOMO’s own legitimate interests, (iii) reasonably share in the costs of defending against such claim, and (iv) agree to settle such claim out of court or in court to the extent not inconsistent with OKOMO’s own legitimate interests in its reasonable judgment.
13 Confidentiality Statement
Each party (as the “Receiving Party”) agrees that all proprietary information, such as code, inventions, know-how, business, technical and financial information, disclosed or made available to it by the disclosing party (“Disclosing Party”) during the term of this Agreement shall constitute Confidential Information of the Disclosing Party, provided that it is marked as confidential at the time of disclosure or should reasonably be known by the Receiving Party to be confidential or proprietary based on the nature of the information disclosed and the circumstances of disclosure (“Confidential Information”). Any OKOMO Technology, performance information relating to a Service and the terms of this Agreement shall be deemed to be Confidential Information of OKOMO without any marking or further designation. Except as expressly permitted in this Agreement, Receiving Party shall (1) keep Confidential Information confidential and not disclose it to any third party and (2) not use Confidential Information for any purpose other than the performance of its obligations and exercise of its rights under this Agreement. The Receiving Party shall have the right to disclose Confidential Information to its employees, agents, contractors and other representatives who have a legitimate need to know it provided that such representatives are bound by confidentiality obligations that protect the Receiving Party no less than this Section 13 and that the Receiving Party remains responsible for such representatives’ compliance with the terms of this Section 13. The Receiving Party’s confidentiality obligations shall not apply to information that (i) was lawfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become publicly known through no fault of the Receiving Party; (iii) was lawfully obtained by the Receiving Party from a third party without breach of a confidentiality obligation; or (iv) was independently developed by employees of the Receiving Party who did not have access to such information. The Receiving Party shall be responsible for proving the existence of any circumstance under (i)-(iv). Receiving Party may make Disclosures to the extent required by law or court order, provided that Receiving Party notifies Disclosing Party in advance and cooperates in all efforts to obtain confidential treatment. The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy and, therefore, upon such disclosure by the Receiving Party, the Disclosing Party shall be entitled to seek equitable remedies in addition to any other remedies to which it may be entitled at law.
Upon first request by OKOMO, Customer agrees to the issuance of a joint press release regarding the use of the Services (“Press Release”) to be issued on a mutually agreed upon date or the 90th day of the Start Date, whichever is earlier. Customer also agrees to participate in other appropriate marketing activities that promote the benefits of the Services to other potential customers, and that Customer’s name or company and logo may be used on OKOMO’s website and in OKOMO’s promotional materials. The Customer further agrees that OKOMO may identify the Customer as a customer of OKOMO.
This Agreement shall bind and inure to the benefit of the permitted successors and assigns of each party. Neither party may assign this Agreement or the entire contractual relationship to any other party without the prior written consent, except that either party may assign the rights and obligations under this Agreement in connection with a merger, reorganization, acquisition or other transfer of all or substantially all of such party’s assets or voting securities. Any attempt to transfer or assign this Agreement, except as expressly authorized in this Section 15.1, shall be void.
15.2 Severability Clause
If any provision of this Agreement is found to be invalid or illegal in whole or in part, the validity of the remaining provisions shall not be affected thereby. In this case, the provision in question shall be replaced by a valid provision that is as economically equivalent as possible. In the event of loopholes, the above provision shall apply accordingly.
15.3 Additions and waivers
Except as otherwise provided in this Agreement, any amendments and supplements thereto, including this sentence, shall require the written consent of all parties in order to be valid (which consent may be given electronically, e.g. by confirmation in an e-mail or other form verifiable by text). No waiver may be inferred from any conduct or failure to enforce or exercise any rights under this Agreement. No waiver shall be effective unless signed in writing by the party asserting the waiver. No provision of any purchase order or other business form used by Customer shall supersede the terms of this Agreement, and any such document referring to this Agreement is for administrative purposes only and shall have no legal effect.
Notices between the parties for which this Agreement requires writing shall be in writing by mail or electronically by email. Notices to OKOMO shall be sent to OKOMO AG, Sihleggstrasse 23, 8832 Wollerau, Switzerland or electronically to firstname.lastname@example.org. Notices to the customer shall be sent to the address and e-mail address provided by the customer in the account.
15.5 Entire agreement
This Agreement constitutes the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all prior written and oral agreements and communications with respect to the subject matter hereof. Customer acknowledges that the Services are online products on a subscription basis and that OKOMO may make changes to the Services and update or unilaterally modify related documentation to improve the Customer experience.
OKOMO shall be entitled to use the services of and permit subcontractors to exercise the rights granted to OKOMO to provide the Services under this Agreement, provided that OKOMO shall remain responsible for (i) such subcontractor’s compliance with the terms of this Agreement and (ii) the overall performance of the Services in accordance with this Agreement.
15.7 Independent Contracting Parties
The parties to this Agreement are independent contractors. No relationship of partnership, joint venture, employment, franchise, agency or simple partnership is hereby created between the parties. Neither party shall have the authority to bind the other party or to incur any obligation on behalf of the other party without the prior written consent of the other party.
16 Applicable law and place of jurisdiction
This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by Swiss substantive law (excluding the Vienna Sales Convention (CISG) and its conflict of law provisions).
Any dispute or claim arising out of or in connection with the Contract or its subject matter or formation (including non-contractual disputes or claims) shall be subject to the exclusive jurisdiction of the courts of the place where OKOMO has its registered office.