Livingroom Terms Of Service
LIVINGROOM ANALYTICS Software-as-a-Service Agreement - LAST UPDATED MAY 16, 2018
By accessing or using Livingroom Analytics Software as a Service, you (“Customer”) accept the terms and conditions of this agreement.
This Software as a Service Agreement (“Agreement”) is entered into between Customer and Livingroom Analytics ApS, company registration number DK38840606, Njalsgade 19D, 2300 Copenhagen S, Denmark (“Livingroom”). Livingroom and Customer agree that the following terms and conditions will apply to the services provided under this Agreement.
1.1 Livingroom has developed a secure online application to intelligently monitor, track and improve employee performance and engagement (hereinafter the “Software”).
1.2 An add-on to the Software is the mobile employee app (hereinafter the “App”), which can be accessed via a browser or installed on mobile devices and used in conjunction with the Software. Collectively the Software and the App shall be referred to as the “Service”.
1.3 Deviations from the Agreement shall only apply to the extent they have been explicitly accepted by Livingroom in writing.
2. SaaS Services
2.1 Livingroom’s provision of the Services to the Customer is non-exclusive. Nothing in the Agreement prevents the Livingroom from providing the Services to any other entity.
2.2 Customer acknowledges that this Agreement is a services agreement and Livingroom will not be delivering copies of the Software to Customer.
3. Subscription to the Service
3.1 The Customer can sign up and subscribe to the Service (“Subscription”) via our website livingroomanalytics.com. The Customer can subscribe to the Service for a period of time (hereinafter the “Subscription Period”). The first 30 (thirty) days of the Subscription Period is a free trial period.
3.2 When subscribing to the Service the Customer must provide credit-card details, which are processed and stored with a secure 3rdparty on behalf of Livingroom.
4. Use of the Service
4.1 In order to use the Service, the Customer will create an administrative user account (hereinafter an “Admin Account”) accessible by way of a user-ID and a password. The Admin Account will create subsequent users on the Service.
4.2 By accessing via the Admin Account, the User may create a number of employee user accounts (hereinafter an “Account”) accessible by way of a user-ID and a password. Whereas each Account shall be accessed only by the individual user that is associated with that specific Account.
4.3 The Customer shall provide that user-IDs and passwords (“Access Details”) are kept secret and ensure that the Access Details do not become known to any third party, as the Customer is liable for any misuse of the Services using the Access Details. Furthermore, the Customer shall inform Livingroom immediately if the Customer suspect that any of the Access Details of an Admin Account or an Account has been compromised.
4.4 Subject to the Customer’s payment of the subscription fees pertaining to the Service, the Customer shall be entitled to use the Service as long as this Agreement is in force.
4.5 The Customer may not copy, except as expressly permitted, decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the Service, any updates, or any part thereof. Any attempt to do so is a violation of Livingroom’s rights. If the Customer breaches this restriction, the Customer may be subject to damages claims.
4.6 The use of the Service may require certain minimum specifications for the Customer’s IT-system, any mobile devices and internet connection. By entering into this Agreement, the Customer warrants that such requirements are met by the Customer during the term of the Agreement.
5. Fees and Payment Terms
5.1 The Customer shall pay a subscription fee to Livingroom in order to use the Service (hereinafter the “Subscription Fee”). The Subscription Fee for the monthly Subscription Period will be due for payment upon termination of the Trial Period.
5.2 The Subscription Fee is calculated based on the highest number of Accounts (including Admin Accounts) the Admin Account has created within the Service within the current Subscription Period. It is Customer’s responsibility to ensure that the number of Accounts are updated correctly and accordingly to Customer’s organization and actual usage.
5.3 The Subscription Fees are set forth on our website at http://livingroomanalytics.com/pricing. The Subscription Fee is exclusive of value added tax or sales tax, if applicable.
5.4 Customer shall provide Livingroom with valid and updated credit card information. Customer represent that Customer are authorized to use the card and Customer authorize Livingroom to charge the card for all payments hereunder. By submitting payment information, Customer authorize Livingroom to provide that information to third parties for purposes of facilitating payment. Customer agree to verify any information requested by Livingroom for purposes of acknowledging or completing any payment.
5.5 The Subscription Fee is non-cancelable and non-refundable. At the end of Customer’s current Subscription Period, the Subscription will automatically be renewed for a new Subscription Period, using Customer’s stored credit-card information, Customer can terminate the Subscription to the end of a Subscription Period at any time from within the Service.
5.6 Livingroom can change the Subscription Fee at any time or impose additional fees or charges.
5.7 If the Customer cancels the current Subscription Period, the Customer will still be responsible for the Subscription Fee for the remainder of the current Subscription Period.
5.8 The Subscription Fee includes maintenance and support of the Service.
6. Support Services
6.1 Livingroom provides support to Customer’s via chat, telephone and/or e-mail. Support is available Monday to Friday (except for Danish national holidays) between 09:00 and 16:00 (GMT +1). For further information please see http://livingroomanalytics.com/support.
6.2 Support services are included in the Subscription Fee.
7. Availability and backup
7.1 Livingroom intends the Service to be available 24/7. Availability of the Service will be minimum 99.0% measured over a quarterly period. The Service are defined as being available as long as the Service are available for log in.
7.2 In order to maintain and update the Service, Livingroom will from time to time plan and execute maintenance work, where the Service may be unavailable. Where Livingroom has announced such maintenance work at least 24 hours in advance, this unavailability does not affect the measured target availability.
7.3 In case of unavailability of the Services (as defined above) Livingroom will refund the Customer a proportionate part of the relevant fee for any period that the Service due to Livingroom’s circumstances are unavailable for more than three consecutive Danish business days. Such refund will be calculated on the basis of the number of “down days”, i.e. the number of consecutive periods of full 24 hours that the Service are unavailable to the Customer. E.g. if the Service are unavailable for a period of four business days (96 consecutive hours), the Customer will get a refund for one day (24 hours).
7.4 Except for the refund in clause 7.3, the Customer shall have no remedies or claims against Livingroom for the unavailability of the Service, including without limitation the right to claim for compensation, proportionate reduction, the right to terminate the Agreement for breach or any other remedy.
8. Term and Termination
8.1 The Customer is bound by this Agreement until the end of a Subscription Period.
8.2 Upon termination of the Agreement or expiration of the Subscription Period, Livingroom shall immediately cease providing the Services and all usage rights granted under the Agreement shall terminate.
8.3 Upon termination of the agreement any Customer data including personal information shall be anonymized and can be freely used by Livingroom and third parties for statistical and/or analytical and other relevant purposes.
8.4 Livingroom may at its discretion disable the Services and/or terminate this Agreement upon the breach of any term hereof, including (i) if Subscription Fees or other fees are not paid on time, (ii) if the Customer uses more than for which the Customer has licenses; or (iii) if the Customer uses the Services beyond the agreed scope or (iv) if a third party instructed, engaged or allowed access by the Customer, amend, modify, make additions, deletions or changes to the Services; or, (v) if the Customer fails to comply with any other provision of this Agreement.
8.5 If Livingroom terminates the Agreement due to a breach by Customer, then Customer shall immediately pay to Livingroom all amounts due and amount that become due under the remaining term of the Agreement.
9. Customer’s Obligations
9.1 The Customer must at all times:
9.1.1 obtain, deploy and maintain all computer hardware, internet connections, security settings, operating systems and any required ancillary software to use, operate or access the Service;
9.1.2 at all times keep its IT-systems well and proper maintained;
9.1.3 respect the restrictions and conditions applicable for the use of the Service, and follow instructions from Livingroom, including but not limited to this Agreement;
9.2 Customer shall: (i) notify Livingroom immediately of any unauthorized use of any password or user id or any other known or suspected breach of security, ii) report to Livingroom immediately and use reasonable efforts to stop any unauthorized use of the Service that is known or suspected by Customer, and (iii) not provide false identity information to gain access to or use the Service.
9.3 Customer shall be solely responsible for the acts and omissions of its Admin Accounts. Livingroom shall not be liable for any loss of data or functionality caused directly or indirectly by the Admin Accounts or any other Accounts.
9.4 Customer is solely responsible for collecting, entering and updating all data stored with the Service, and for ensuring that the data does not (i) include anything that actually or potentially infringes or misappropriates the copyright, trade secret, trademark or other intellectual property right of any third party, or (ii) contain anything that is obscene, defamatory, harassing, offensive or malicious.
9.5 Subject to the terms and conditions of this Agreement, Customer shall grant to Livingroom a limited, non-exclusive and non-transferable license, to copy, store, configure, perform, display and transmit Customer data solely as necessary to provide the Service to Customer.
9.6 Customer retains ownership and intellectual property rights in and to its Customer data. Livingroom retain all ownership and intellectual property rights to the Service, Software, App and anything developed and delivered under the Agreement. Third party technology that may be appropriate or necessary for use with some Livingroom programs is specified in the program documentation or ordering document as applicable. Customer’s right to use such third party technology is governed by the terms of the third party technology license agreement specified by Livingroom and not under the Agreement.
9.7 Livingroom shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into the Service any suggestions, enhancement requests, recommendation or other feedback provided by Customer and/or its users, relating to the operation of the Service.
9.8 The Customer is responsible for deleting information that is no longer in use or no longer valid from the Service.
9.9 The Customer is responsible for complying with the laws and regulations of the Territory from which the Service is accessed or used.
11. Grant of License
11.1 This license (hereinafter "License") grants to the Customer, and the Customer accepts, a non-transferable, non-exclusive license to use the Service, and for the purpose of the Service only, the version of the Software and App currently supplied by Livingroom including any patches and associated documentation subject to the terms set forth in this Agreement. Livingroom is at any time and without notice entitled to change the License to an updated version of the Software and/or App.
11.2 This License does not convey to the Customer with an interest or ownership in or to the Service, but only a limited right of use always subject to the terms of this License.
11.3 The Customer accepts that the Service may be disabled automatically or by Livingroom if the Customer breach the terms of the Agreement, this License and/or in case of non-payment of subscription fees c.f. section 5.
12. Limited or no warranty
12.1 Livingroom represents and warrants that it will provide the Service in a professional manner consistent with general industry standards and that the Service will perform substantially in accordance with the documentation.
12.2 The Service uses advanced algorithms to track employee engagement and performance and enables benchmarking across industries. The Service relies on the information gathered from users of the Service to provide suggested decisions/actions (“Actions”), and Livingroom takes no responsibility for any Actions conducted based on the output from the Service, including without limitation if such Actions do not provide the expected results. The suggested Actions may be subject to regulation e.g. by contractual or legislative nature that prohibits or otherwise interferes with the Actions, and Livingroom explicitly exempts liability for any Actions taken by Customer.
12.3 The Customer acknowledges that the Customer knows the essential functional characteristics of the Service and bear the risk that the Service do not meet the Customers wishes and requirements. In case of doubt the Customer should consult employees of Livingroom or third-party experts before concluding this Agreement.
12.4 LIVINGROOM WARRANTS THAT THE SERVICE WILL PERFORM IN ALL MATERIAL RESPECTS IN ACCORDANCE WITH THE DOCUMENTATION. LIVINGROOM DOES NOT GUARANTEE THAT THE SERVICE WILL BE PERFORMED ERROR-FREE OR UNINTERRUPTED, OR THAT LIVINGROOM WILL CORRECT ALL SERVICE ERRORS. CUSTOMER ACKNOWLEDGES THAT LIVINGROOM DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES.THIS SECTION SETS FORTH THE SOLE AND EXCLUSIVE WARRANTY GIVEN BY LIVINGROOM (EXPRESS OR IMPLIED) WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT. NEITHER LIVINGROOM NOR ANY OF ITS LICENSORS OR OTHER SUPPLIERS WARRANT OR GUARANTEE THAT THE OPERATION OF THE SUBSCRIPTION SERVICE WILL BE UNINTERRUPTED, VIRUS-FREE OR ERROR-FREE, NOR SHALL LIVINGROOM OR ANY OF ITS SERVICE PROVIDERS BE LIABLE FOR UNAUTHORIZED ALTERATION, THEFT OR DESTRUCTION OF CUSTOMER’S OR ANY USER’S DATA, FILES, OR PROGRAMS.
13. Limitation of Liability
13.1 LIVINGROOM AND ITS SUPPLIERS SHALL NOT BE LIABLE FOR AND THE CUSTOMER ASSUMES RESPONSIBILITY FOR ALL PERSONAL INJURY AND PROPERTY DAMAGE RESULTING FROM THE USE OF THE SERVICE. IN NO EVENT SHALL LIVINGROOM, ITS OFFICERS, AGENTS, EMPLOYEES OR SUPPLIERS BE LIABLE TO ANY PERSON OR ENTITY FOR THE LOSS OF PROFITS OR FOR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THE SERVICES OR THE PERFORMANCE OF THE SERVICES, EVEN IF LIVINGROOM OR ITS OFFICERS, AGENTS, EMPLOYEES, OR SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FOR THE AVOIDANCE OF DOUBT LOSS OF DATA AND THE COST OF RESTORATION THEREOF SHALL BE CONSIDERED INDIRECT DAMAGES HEREUNDER. IN NO EVENT SHALL THE TOTAL, CUMULATIVE LIABILITY OF LIVINGROOM AND ITS SUPPLIERS EXCEED SIX MONTHS SUBSCRIPTION FEE.
14. Third Party Rights
14.1 If a third party makes a claim against the Customer that any part of the Service originating from Livingroom (Livingroom assumes no liability whatsoever in any part of the Service or software originating from third parties, e.g. database software or operating systems, infringes third party intellectual property rights) infringes any patent, copyright or other intellectual property right (hereafter “Claim”), Livingroom will defend the Customer against the Claim and pay all costs, damages and expenses - including reasonable attorney's fees - finally awarded against the Customer by a court having jurisdiction over the matter; provided that: (i) the Customer notifies Livingroom in writing no later than five (5) days after the Customer has become aware of a Claim or a potential Claim; (ii) Livingroom may assume sole control of the legal handling of the Claim and all related actions and negotiations; and (iii) the Customer – at the Customer’s own cost - provide Livingroom with the assistance, information and authority, which in the reasonable opinion of Livingroom will be necessary to perform Livingroom 's obligations under this clause.
14.2 Notwithstanding the above, Livingroom shall have no liability for (i) any Claim based on the combination of the Service with products or services not provided by Livingroom and (ii) the modification of the Services by any person other than Livingroom.
14.3 If, due to a Claim or the threat of a Claim, (i) any part of the Service is held by a court having jurisdiction over the matter, or in Livingroom’s reasonable opinion may be held to infringe the rights of a third party by such a court, (ii) the Customer receives a valid court order preventing the Customer from using any part of the Services, or (ii) in Livingroom’s reasonable opinion the Customer may receive such an order, Livingroom shall at its own expense (i) obtain for the Customer the right to continue the use of this part of the Services, or (ii) replace or modify the Services to make it non-infringing provided that such modification or replacement will provide the Customer with a substantially equivalent result. If none of the above options are available on a basis that Livingroom considers to be commercially reasonable, then Livingroom may - in whole or in part - terminate this Agreement and refund to the Customer the Subscription Fee paid by the Customer for the infringing part of the Service, as well as the Subscription Fee paid for any part of the Service that is rendered unusable by the Customer as a result of such unresolved infringement, upon return or deletion as required by Livingroom of the infringing and the unusable parts of the Software by the Customer to Livingroom. Unless otherwise explicitly stated in this clause any claim due to a Claim or the threat of a Claim - including claims for damages and/or pro rata reduction - shall be governed by the limitation of liability in clause 13.
15.1 Livingroom may without the Customer’s consent assign its rights under this Agreement wholly or partly to a third party, or entrust the performance of its obligations or parts hereof to subcontractors. Livingroom’s use of subcontractors does not release Livingroom from its obligations vis-à-vis the Customer.
15.2 The Customer may not assign its rights under this Agreement to any third party without the consent of Livingroom.
16. Disputes, Choice of Law and Venue
16.1 This Agreement shall be governed by, and exclusively construed in accordance with, the laws of the Kingdom of Denmark, not taking into account its provisions that may lead to the application of any other substantial law than Danish law.
16.2 Any dispute, controversy or claim arising out of or in connection with this license or the breach, termination or invalidity thereof shall be settled by the ordinary Danish courts.
16.3 The parties hereby irrevocably submits to the City Court of Copenhagen, Denmark (in Danish: “Københavns Byret”), or, if the prerequisites under Danish law are fulfilled, the Maritime and Commercial Court (in Danish: “Sø- og Handelsretten”), as the agreed venue in the first instance.
16.4 Notwithstanding the above, Livingroom shall at its sole discretion be entitled to initiate proceedings against the Customer in a court of Livingroom’s choice including without limitation in case of non-payment by the Customer or the Customer’s infringement of Livingroom’s intellectual property rights or trade secrets or breach of the Agreement by the Customer.