Terms of Service for Whereby Embedded
Last updated: November 6, 2020
These Terms of Service for Whereby Embedded (“Terms”) apply to the use of the service Whereby Embedded (the "Service" or “Whereby”), and constitute a contract between an individual or a company which shall receive and use the Service (the “Customer”) and the Supplier providing the Service, Video Communication Services AS, Gate 1 no. 101, 6700 Måløy, Norway (the “Supplier").
These terms govern the Customer’s access to and use of the Whereby application and website (the “Service”), and any video, sound, text, graphics, or other materials sent, received, stored or otherwise appearing in the Service (collectively referred to as “Content”). Parts of the Service may display Content that is not the Supplier’s (“User Content”). Such content is the sole responsibility of the person or entity that has made it available, see below for restrictions on content in the Service. When “Content” is used in this document, it refers to both contents provided by the Supplier and User Content collectively, unless otherwise specified.
Where applicable, the “Supplier” shall also be understood as a reference to sub-contractors the Supplier may engage or otherwise cooperate with in connection with the Service.
2. The Service (Whereby)
The Service provided to the Customer by the Supplier is a developer API as an extension of the Business plan for the Customer to integrate Whereby in their own products or tools.
Whereby Embedded creates one-time meeting rooms that are deleted after the meeting is over. These meetings can be embedded in the Customers app.
The use of Whereby requires that the user has hardware, software and an Internet connection fulfilling certain recommended requirements, as may be specified in our Support Center. If the recommended requirements are not met, the user may potentially still use the Service, but normally with lower quality or performance. Such reduced quality or performance will not give the Customer the right to claim any compensation from the Supplier.
The Customer is responsible for the use of Whereby when Whereby is used as described above, including the lawfulness of any content displayed, shared, uploaded or otherwise made available by the Customer in the Service (“User Content”).
3. Content and Use of the Service
The Customer represents and warrants that the Customer or any users have or have secured all necessary rights (including intellectual property rights) and permissions to share, distribute, publish and make available User Content and license User Content and User Content will not infringe the rights of any third party. The Supplier does not claim ownership in User Content except for the Supplier's own content that the Supplier license to you that may be incorporated into User Content.
The Supplier reserve the right to access, read, preserve, and disclose any information as the Supplier reasonably believe is necessary to:
- Satisfy any applicable law, regulation, legal process or governmental request,
- enforce the Terms, including investigation of potential violations hereof,
- detect, prevent, or otherwise address fraud, security or technical issues,
- respond to user support requests, or
- protect our rights, property or safety, our users and the public.
The Supplier reserves the right to report illegal activity to applicable local authorities.
Prohibited User Content includes inter alia and without limitation, content which:
- is offensive, such as User Content that engages in, endorses or promotes racism, bigotry, discrimination, hatred, harassment or physical harm of any kind against any group or individual;
- displays or links to pornographic, sexually explicit or any other indecent material;
- promotes or endorses false or misleading information or illegal activities or conduct that is abusive, threatening, obscene, defamatory or libellous;
- promotes or endorses an illegal or unauthorised copy of another person’s copyrighted work;
- infringes on others trademarks, copyright or legal rights;
- contains restricted or password-only access pages or hidden pages or images;
- solicits passwords or personal data from other users; or
- violates the rights of or harms or threatens the safety of other users or the Service.
Any use or reliance on any Content or materials posted via the Service or obtained by the Customer through the Service is at the Customer's own risk. The Supplier does not endorse, support, represent or guarantee the completeness, truthfulness, accuracy, or reliability of any Content or communications posted via the Service or endorse any opinions expressed via the Service.
The Customer understands that by using the Service, the Customer may be exposed to Content which is not within the control of the Supplier and that might be offensive, harmful, inaccurate or otherwise inappropriate, or in some cases, Content that has been mislabeled or is otherwise deceptive. Under no circumstances will the Supplier be liable in any way for any Content, including, but not limited to, any errors or omissions in any Content, or any loss or damage of any kind incurred as a result of the use of any Content generated or made available via the Service.
The Supplier gives the Customer a limited, worldwide, royalty-free (other than included in the fee for the Service), non-assignable, non-sublicensable and non-exclusive license to use the software and any other intellectual property rights that are provided to the Customer by the Supplier as part of the Service for the Customer’s business use. This license is for the sole purpose of enabling the Customer to use the Service as provided by the Supplier, subject to these Terms.
The Customer or any user may not do any of the following while accessing or using the Service:
- Access, tamper with, or use non-public areas of the Service, the Supplier’s or its subcontractor’s computer systems including technical delivery systems;
- probe, scan, or test the vulnerability of any system or network or breach or circumvent any security or authentication measures;
- access or search or attempt to access or search the Service by any means (automated or otherwise) other than through our currently available, published interfaces that are provided by the Supplier (and only pursuant to those terms and conditions), unless the Customer has been specifically allowed to do so in a separate agreement with the Supplier;
- forge any TCP/IP packet header or any part of the header information in any email or posting, or in any way use the Service to send altered, deceptive or false source-identifying information; or
- interfere with, or disrupt, (or attempt to do so), the access of any user, host or network, or by scripting the creation of Content in such a manner as to interfere with or create an undue burden on the Service or its users.
The Service may contain cryptographic functionality where the export of such could be restricted under applicable export control laws. The Customer shall not export or re-export the Service or parts of it in violation of such laws or regulations.
The Supplier does not provide an archiving service, and you are solely responsible for creating backups of User Content.
4. Fees and payment
Any fee for the use of the Service is included in the Order Form which includes the limits for usage of the Service. The Customer has 12 months from Service Start Date (as defined in the Order Form) to use the Service.
By using the Service, the Customer must enter into the Business plan for Whereby.
Details around use and billing of Whereby Embedded will be outlined in the Order Form the Customer commits to. The Supplier will notify all paying users of material changes to the content, price and terms of the plan.
Usage per year is calculated using the metric Participants in Meetings (PIM). PIM is calculated by the Supplier to measure usage. E.g: if there is one meeting with 2 participants, that will calculate 2 PIM. If there is one meeting with 4 people, that calculates as 4 PIM. The length of a meeting does not affect PIM or cost.
All payments shall be made in advance or otherwise set forth in the Order Form. A number of PIM is included in the term of the Service as specified in the Order Form. If the Customer has used all PIM prior to the end of the term, the Customer must purchase additional PIM to continue using the Service the remaining period of the term. Should the Customer purchase additional PIM, the Supplier can require any outstanding balance to be paid. Upon renewal of the term, additional PIM is included in the new term.
In the case payment is not received by the Supplier, the Customer will be notified by email and as part of the service. The Supplier may suspend the Service by disabling or blocking access to the Service until payment of all invoices is settled and correct payment (inclusive any interests on delayed payment) has been received.
The Supplier reserves the right to make amendments to the fee for the Service upon any renewal of the Service by the Customer. The Customer shall be informed on any amendments to the fee prior to accepting the renewal.
If the Service is cancelled by the Customer, the Customer will have access to the Service for the remainder of the period the Customer has paid for.
If payment is made by credit card, the payment process, including the processing and storing of credit card data, will be provided by a subcontractor of the Supplier as a payment provider and will be subject to the terms of the payment provider which are included in the payment process. By agreeing to these terms and continuing to operate as a customer of the Supplier, the Customer agrees to be bound by the payment provider’s terms, as the same may be modified by the payment provider from time to time. As a condition of using the payment process, the Customer agrees to provide the Supplier and/or the payment provider accurate and complete information about the Customer and the Customer’s business, and the Customer authorizes the Supplier to share with the payment provider this information, including any transaction information, related to the Customer’s use of the payment processing services provided by the payment provider.
All fees are stated exclusive of any applicable taxes, and the Customer is required to pay any sales, use, GST, value-added, withholding, or similar taxes or duties, whether domestic or foreign, related to the transactions under this Agreement, other than taxes based on the income of the Supplier. The Customer will pay all amounts due under this Terms and the Order Form in full without any set-off, counterclaim, deduction or withholding. In the event any payment that the Customer makes under this Agreement is subject to a deduction or withholding, the Customer shall be responsible for making the appropriate payment to the appropriate taxing authorities and financially responsible for interest, penalties, fines, or similar liabilities resulting from the Customer’s failure to timely remit such taxes to the proper governmental authority or agency. The Customer shall provide applicable tax receipts/certificates of such withholding to the Supplier on a timely basis.
5. Privacy and Personal Data
When delivering the Service, the Supplier will collect and process personal data about the Customer and the Customer’s and any user’s use of the Service. The Customer will be the data controller and the Supplier the data processor with regard to the processing of personal data. All processing of personal data by the Supplier will be subject to the Supplier’s standard Data Processing Agreement.
Each party (as “Receiving Party”) agrees that all business, technical and financial information it obtains from the disclosing party (“Disclosing Party”) constitutes the confidential property of the Disclosing Party (“Confidential Information”), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be confidential or proprietary due to the nature of the information disclosed and the circumstances surrounding the disclosure. The Terms and Order Form are deemed the Supplier’s Confidential Information. Except as expressly authorized herein, the Receiving Party will (1) hold in confidence and not disclose any Confidential Information to third parties and (2) not use Confidential Information for any purpose other than fulfilling its obligations and exercising its rights under the Terms. The Receiving Party may disclose Confidential Information to its employees, agents, contractors and other representatives having a legitimate need to know, provided that such representatives are bound to confidentiality obligations no less protective of the Disclosing Party than this Section 6 and that the Receiving Party remains responsible for compliance by any such representative with the terms of this Section 6.
The Receiving Party’s confidentiality obligations will not apply to information that the Receiving Party can document: (a) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (b) is or has become public knowledge through no fault of the Receiving Party; (c) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation, or (d) is independently developed by employees of the Receiving Party who had no access to such information. The Receiving Party may make disclosures to the extent required by Laws or court order, provided that (unless prohibited by Laws) the Receiving Party notifies the Disclosing Party in advance and cooperates in any effort to obtain confidential treatment.
7. Communication and Support
The Supplier may need to send the Customer information about the Service, such as important service announcements and administrative messages, by SMS, email or other means of electronic communication, by posting a notice on the website, or through any other relevant communication channels.
The Supplier may offer to send the Customer promotional information by SMS, email or other means of electronic communication. The Customer may choose to opt in to receiving such communication and can manage the Customer's consents in the Settings page on https://whereby.com/user/profile.
The Customer will provide tier one support for their end users on the platform. The Supplier will provide white label training material and guidance for support of video meetings to the Customer. If further escalation is required to assist the end user, the Supplier will provide support to the Customer's service team rather than the end user. Any support of the end user directly will need to be in writing and include agreed upon terms by the Customer and Supplier.
8. Marketing and Attribution
Supplier can use Customer’s logo, trademarks, and trade names in its marketing materials including website, email, social media, and press releases. Supplier may use quotes provided by Customer in marketing materials including website, email, social media, and press releases. Customer will participate in a promotable case study, which will require minimal time from Customer.
Customer will include attribution to their use of the Whereby platform that is visible to customers while in a video meeting. This should include, but doesn’t have to be limited to, the Whereby logo being visible during the entire meeting.
9. Intellectual Property Rights
All rights, title to and interest in the Service (excluding User Content) are and will remain the exclusive property of the Supplier. The Service and its content are protected by copyright and other intellectual property rights in the country the Customer resides as well as in any other countries.
Except for the limited, non-exclusive, non-transferable and revocable license granted to the Customer for the sole purpose of the Customer’s use of the Service in compliance with the Terms, the Customer is not granted any ownership of or license to any intellectual property rights in the Service or in the content owned by the Supplier or the Supplier’s subcontractors or any other partners that the Customer access through the Service.
The trademarks, logos, domain names and any other similar signs or symbols which are displayed as part of the Service are the registered and unregistered marks of the Supplier. Nothing in the Terms grants the Customer the right to use any such marks without the prior written consent by an authorized person at the Supplier.
The Customer retains the rights to any Content the Customer submit, post or display on or through the Service. By submitting User Content, the Customer grants the Supplier or must procure for that the Customer’s licensors grant the Supplier, a non-exclusive, royalty-free, perpetual, transferable, sub-licensable, irrevocable and worldwide license to use, reproduce, store, modify, distribute, publish and create derivative works of such User Content for the purpose of providing the Service to the Customer. The Customer represents and warrants that the Customer owns any User Content submitted by the Customer or that the Customer otherwise is entitled to submit such User Content and to grant the Supplier such license.
10. Term and termination
The term for providing the Service is included in the Order Form (the “Initial Term”). Upon the expiry of the Initial Term, the term is automatically prolonged for an additional period (the “Renewal Term”) if the Service is not terminated within one month prior to the expiry of the Initial Term. Upon the expiry of any Renewal Term, the Service will be automatically prolonged for a new Renewal Term if the Service is not terminated within one month prior to the expiry of the Renewal Term.
If the Customer terminates the Service, the Customer will have access to the Service for the remaining (pre-paid) period. The Supplier reserves the right to terminate the Service and the agreement with the Customer with immediate effect upon written notice to the Customer in case of a material breach of the Terms or violation of the restriction on Content or the use of the Service. The Customer is not entitled to refunds upon termination due to breach on the part of the Customer.
The Supplier reserves the right to suspend or terminate the Service in whole or part at any time, with or without cause, and with or without notice, without incurring liability of any kind. For example, the Supplier may suspend or terminate the Customer’s use if the Customer or users are not complying with the Terms, or if the Customer or the users use the Service in any way that may cause us legal liability or disrupt others’ use of the Service or damage to the Supplier’s business or reputation, or for any other reason.
Upon any termination or expiration of these Terms. except as may be specified in the Terms, either party’s exercise of any remedy, including termination, is without prejudice to any other remedies it may have under the Terms, by law or otherwise.
Amendments. The Supplier may, from time to time, change or modify the Terms or any of our terms and policies referenced in or incorporated by the Terms. The Customer’s continued use of the Services, following notice of the changes to the Supplier Terms and policies upon duly notice to the Customer, constitutes the Customer’s acceptance of the amended Terms and policies.
Disclaimer of warranty. The Supplier provides the Service “as is”, and the Customer acknowledges that the Service is not error-free. The Customer uses it at the Customer’s own risk and discretion as the Service will be continually developed, and the Customer acknowledges that changes to functionality which the Customer may be given notice of. The Supplier makes no warranties, expressed or implied, with respect to the availability, merchantability, fitness for a particular purpose, non-infringement, accuracy, completeness, performance and quality of the Service. The Supplier will from time to time have to carry out updates and maintenance of the Service, due to technical, security or operational reasons, during which time the Service might be unavailable. The Supplier will make reasonable efforts to arrange updates and maintenance outside of peak usage hours.
Limitation of Liability. The Supplier shall not be liable for any damages, whether arising under law, contract, warranty, indemnification, tort or otherwise, including, without limitation, incidental and consequential damages, loss of profits or business opportunities, or damages resulting from loss of data or loss of access to the Service. In any event, the Suppliers total liability shall not exceed the amount paid by the Customer for the Service during the last 12 months prior to the incident that causes the liability.
Indemnity. The Customer agrees to indemnify, defend and hold harmless the Supplier and its subcontractors and partners from and against all claims, liabilities and expenses (including reasonable attorney’s fees) that arise from the Customer’s use of the Service in breach or alleged breach of the Terms or applicable laws or otherwise related to User Content. The Supplier reserves the right, at its own expense, to assume the exclusive defence and control of any matter otherwise subject to indemnification by the Customer. The Customer shall cooperate in good faith with the Supplier in asserting any available defences, and the Customer shall not settle any claim without the Supplier’s written consent if the settlement requires the Supplier to take any action, refrain from taking any action, or to admit any liability.
Partial invalidity. If any provision of the Terms is declared invalid or unenforceable by a court or other binding authority, the remaining terms (or parts), conditions and provisions shall continue to be valid and enforceable to the fullest extent permitted by law.
Force majeure. Force Majeure means any circumstances beyond the reasonable control of either party, including, without limitation, fire, explosion, epidemics, strikes or other labour disputes, riots or other civil disturbances, voluntary or involuntary compliance with any law, order regulation, recommendation or request of any governmental authority, and errors or downtime in networks, power supply, gateway or similar failures of communication. Neither party will have any liability, other than for the payment of money owing, for their failure to perform any of their contractual obligations arising out of or in connection with events of Force Majeure.
Assignment. The Supplier is entitled, in whole or in part, to assign its rights and obligations under the Terms inclusive the Order Form and any agreement or terms related hereto, such as the Data Processing Agreement, to a third party at its own discretion.
Choice of Law and Dispute Resolution. The Terms shall be governed by and interpreted in accordance with Norwegian law. Any dispute, controversy or claim arising out of or in connection with the Terms shall be subject to the jurisdiction of the Norwegian courts with the district court of Oslo, Norway as the legal venue.