General Terms and Conditions
- These General Terms are applicable to the Agreement between the Customer and the Company and set out the terms under which the Company shall provide the Services to the Customer.
- The Customer enters into the Agreement by executing a Purchase Order with the Company. The Agreement shall become effective after both Parties have signed the Purchase Order.
- All Services are subject to the Agreement at all times. The Services may be subject to additional third party terms and conditions, which terms and policies shall be communicated to the Customer by the Company or its subcontractors.
- The Parties have set out the scope of the Cloud Services in the Purchase Order and its appendices. The Company shall provide the Cloud Services to the Customer substantially as set out in the Agreement.
- The Company reserves the right to make changes to the Cloud Services at any time. If a change made by the Company has an adverse effect on the agreed contents of the Cloud Services or any agreed service levels, the Company shall inform the Customer of such change at least thirty (30) days before the effective date of the change. In such a case the Customer shall have the right to terminate the Agreement subject to a thirty (30) days' prior written notice. The termination notice must be delivered to the Company in writing prior to the effective date of the change.
- The Company shall always have the right but shall have no obligation to make such changes to the Cloud Services that (a) concern or relate to the production environment of the Cloud Services and do not have an adverse effect on the agreed contents of the Cloud Services or the agreed service levels, (b) are necessary to prevent any data security risk or any other threat to the Cloud Services, or (c) result from law or from an administrative order.
- The scope of the Consulting Services has been set out in the Purchase Order and its appendices. The Company shall perform any Consulting Services substantially as set out in the Purchase Order, in a diligent, professional and workmanlike manner and in accordance with the agreed schedule.
- The Parties may agree on changes to the scope of the Consulting Services in writing. The Parties shall always agree on the impact of any changes to the schedule of the Consulting Services and to the Fees payable for the Consulting Services.
- The Company shall present the Deliverables for the Customer's acceptance in accordance with the schedule set out in the Purchase Order. The Customer shall have fourteen (14) days to notify the Company of any Errors in the Deliverables. The Company shall fix any Errors without delay. The time period reserved for the Customer's testing of the Deliverables shall be extended by a time period corresponding to the time during which such testing cannot be made due to correction of the Errors.
- The Deliverables shall be deemed to be accepted, (a) when the Customer notifies the Company of the acceptance of the Deliverables in writing; (b) when the Company has demonstrated that it has corrected all Errors reported by the Customer in writing; (c) if the Customer has not presented a written notice regarding Errors in the time frame set out in Section 3.3 above; or (d) if the Customer takes the Deliverables into production use.
- The Company warrants that the Deliverables shall be free of Errors for a period of one (1) month from the acceptance of the Deliverables. The Company shall fix any Errors notified by the Customer during the warranty period without delay. The Company's liability as regards Errors in the Deliverables shall be limited to what has been set out in this Section 3.
- The Parties have set out the scope of the Support Services in the Purchase Order and its appendices. The Company shall provide the Support Services to the Customer substantially as set out in the Agreement.
- The Support Services are available from 9:00 to 17:00 Finnish time during Finnish working days. The Support Services are provided to the Customer strictly on an "as is" and "as available" basis, but the Company shall use its commercially reasonable efforts to provide the Support Services during the aforesaid service time.
Intellectual Property Rights
- All rights, title and interest, including all Intellectual Property Rights in and to the Services, the Deliverables and any changes thereto shall belong exclusively to the Company or its licensors. Except for the express license to use the Cloud Services and Deliverables granted to the Customer under and in accordance with the terms and conditions of the Agreement, the Customer shall have no and shall not obtain any rights, license or interests in and to the Services, Deliverables or any Intellectual Property Rights pertaining thereto.
- The Customer shall have alimited non-exclusive, non-transferable, non- sublicensable right to use the Cloud Services and Deliverables during the term of the Agreement in its internal business operations. For the avoidance of doubt, such use in the Customer's internal business operations cover any use of the Cloud Services and Deliverables by the Customer's end-customers for the purposes of providing the Customer's education-related services to its end-customers.
- All rights, title and interest, including all Intellectual Property Rights in and to the Customer's materials and any changes thereto shall belong exclusively to the Customer or its licensors.
- The Company shall have a non-exclusive license to use, modify and make available such Customer's materials in any way, for the sole purpose of fulfilling the Company's obligations under the Agreement.
The Company agrees to defend the Customer, at its own expense, against any third party claims or actions where a third party claims that the Cloud Services or Deliverables infringe upon Intellectual Property Rights of a third party valid in the European Economic Area (EEA), provided that the Customer:
- notifies the Company of such claim immediately upon receipt of notice thereof;
- provides the Company, free of charge, with all available information, permissions and assistance;
- grants the Company the exclusive and sole right to control the defence of the claim; and
- 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 the Company.
- If the Customer has acted in accordance with Sections 6.1.1 to 6.1.4, the Company shall pay any damages finally awarded to the third party claimant by a competent court of law or court of arbitration.
- If the Company justifiably deems that the Cloud Services or Deliverables infringe or may infringe upon any third party rights, the Company shall have the right, at its own expense and in its sole discretion, to (a) acquire for the Customer the right to continue the use of the Cloud Services or Deliverables; or (b) replace the Cloud Services or Deliverables; or (c) modify the Cloud Services or Deliverables to the extent necessary to avoid the infringement.
- If none of the alternatives defined in Section 6.3 are available to the Company on commercially reasonable terms and/or without the significant loss of time, the Company shall have the right to terminate the Agreement in whole or in part subject to a notice period set by the Company, upon which the Customer agrees to cease using the Cloud Services and Deliverables, and the Company agrees to reimburse the Fees paid by the Customer for the terminated Cloud Services and Deliverables, less a proportion equal to the time of use of the Cloud Services and Deliverables by the Customer.
- The indemnity in this Section 6 shall not apply to, and the Company is not liable for any claim that (a) is based on a claim by any Customer Affiliate; or (b) is based on the modification or alteration of the Cloud Services or Deliverables or a modification or alteration influencing the Cloud Services or Deliverables by the Customer or any third party; or (c) results from complying with any instructions, specifications or design given by the Customer or any third party under the command and control of the Customer; (d) arises or results from the use of the Cloud Services or Deliverables in combination with any software, equipment or products not developed or supplied by the Company or which are contrary to instructions given by the Company; or (e) could have been avoided by using the latest version of the Cloud Services or Deliverables made available by the Company to the Customer.
- The Customer agrees to indemnify the Company, at the Customer's own expense, against any claims made towards the Company based on any information or data the Customer submits, processes or stores to the Cloud Services, including without limitation claims that the Customer's materials or data infringes third party Intellectual Property Rights or that the data otherwise infringes applicable laws or regulations.
- This Section 6 sets out the entire liability of the Company and the Customer’s sole remedy in case of any infringement of any Intellectual Property Rights.
- The Company agrees to defend the Customer, at its own expense, against any third party claims or actions where a third party claims that the Cloud Services or Deliverables infringe upon Intellectual Property Rights of a third party valid in the European Economic Area (EEA), provided that the Customer:
- The Customer shall be solely responsible for any use of the Cloud Services under the Customer's account, including any breach of the Agreement by the Customer or any of its authorized users.
- The Customer shall be responsible for paying any Fees properly due in accordance with the invoices sent by the Company.
- The Customer shall be responsible for its own devices, systems, applications, connections and software used to access the Cloud Services.
- The Customer shall be responsible for the protection of customer’s data communications and data systems and costs for communications and other comparable costs related to use of the Cloud Services.
- The Customer may authorize users to use the Cloud Services under the Customer's account (e.g. for the purposes of using the Customer's databases). The Customer shall ensure that any users it authorizes to use the Cloud Services under the Customer's account comply with the Agreement at all times and use the Cloud Services only in accordance with the Agreement.
- The Customer shall be responsible for ensuring that its authorized users maintain their user names and passwords diligently and do not disclose them to third parties. The Customer undertakes to inform the Company without delay if any password has been revealed to a third party or if the Customer has a reason to suspect misuse of a user name or password. The Customer’s liability for the misuse of the Cloud Services by the use of the user name or password of its user shall expire when the Company has received the Customer’s written and sufficiently detailed notice thereof enabling the Company to take sufficient action to prevent any further use of the Customer's user name and password.
- The Customer shall change the passwords required for the use of the Cloud Services upon written request of the Company if necessary due to data security risk to the Cloud Services.
Personal Data and Customer Data
- To the extent the Customer submits, processes or stores any personal data in to the Cloud Services, the Company (or its subcontractor where appropriate) processes such data on behalf and for the benefit of the Customer while the Customer remains at all times the data controller for such personal data. The Company processes data submitted by the Customer to the Company in accordance with the applicable laws, decrees and regulations. The Customer represents and warrants that it is authorized to instruct the Company and its subcontractors to process such personal data. The Customer represents and warrants that it has the right to collect the personal data provided to the Company for processing.
- The Company provides the Customer information on where the Company's or its subcontractors' servers are located at. The Customer shall be solely responsible for ensuring that it has the right to transfer personal data to the countries where the hosting partner's servers are located.
- By using the Cloud Services, the Customer understands and accepts that the Customer's data may be provided to the Company's subcontractors for the purposes of providing the Cloud Services.
- The Customer is solely responsible for making appropriate backups of its data, and the Company or its subcontractors shall in no way be liable for any deletion of or failure to store any data of the Customer or other communications maintained or transmitted to the use of the Cloud Services.
- After the termination of the Agreement for any reason, the Company shall retain the Customer's data for thirty (30) days and make it available to the Customer via the Cloud Services. After the thirty (30) days' period, the Company shall have the right to destroy the Customer's data from the Cloud Services without any liability towards the Customer.
Suspension of Service
- The Company shall have the right to suspend the provision of the Cloud Services for a reasonable period of time without any liability towards the Customer if this is necessary in order to perform installation, change or maintenance work in respect of the Cloud Services or if such suspension results from installation, change or maintenance work in respect of public communication networks. The Company shall also have the right to suspend the provision of the Cloud Services due to a data security risk to the Cloud Services or if law or administrative order requires the Company to do so.
- The Company shall always have the right to suspend the Cloud Services without any liability towards the Customer, if the Customer is in default with its payment of the Fees due under the Agreement and does not pay such Fees despite a request to pay within fourteen (14) days calculated from the date of such request. The suspension can be continued until the Customer has paid all Fees due under the Agreement.
- The Company may suspend the Cloud Services without any liability towards the Customer if the Customer ceases to conduct its business, is adjudicated in bankruptcy or liquidation or corporate restructuring, is found insolvent in recovery proceedings or if a material default in payment has been registered to the Customer.
- The Company shall have the right suspend the provision of the Cloud Services and to deny the Customer's access to the Cloud Services without first hearing the Customer, without any liability towards the Customer, if the Company reasonably suspects that the Customer burdens or uses the Cloud Services contrary to the Agreement, applicable laws or administrative orders or for a purpose prohibited by the Agreement, applicable laws or administrative orders or in a manner that jeopardises the provision of the Cloud Services to other users.
- The Fees for the Services have been set out in the Purchase Order. Any Services or Deliverables not expressly defined in the Purchase Order as being included in the Fees shall be charged in accordance with the Company’s price list as in force from time to time.
- Fees for Consulting Services shall be invoiced monthly in arrears. Unless expressly agreed to the contrary, Consulting Services shall be provided on a time and materials basis.
- Fees for the use of the Cloud Services and Support Services shall be invoiced monthly in arrears.
- The Company reserves the right to increase the rates applicable to the Cloud Services where this is justified due to the general increase of the Company’s costs and expenses of production (such as but not limited to general increase of labour costs and expenses), or in the case of increase of costs of third party offerings. The Company shall inform the Customer of such change at least thirty (30) days before the effective date of the change. In such a case the Customer shall have the right to terminate the Agreement subject to thirty (30) days' prior written notice. The termination notice must be delivered to the Company in writing prior to the effective date of the change.
- All rates and Fees are set out without value added tax (VAT) or any other applicable sales tax, which shall be added to the rates and Fees in accordance with the thenapplicable tax laws and regulations.
- In case a separate invoice is sent, the term of payment of each invoice shall be fourteen (14) days net from the date of the invoice.
- Overdue interest on any amounts overdue shall accrue in accordance with the applicable Finnish Interest Act (Korkolaki 1982/633, as amended).
- Each Party shall keep in confidence all material and information received from the other 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 forth in the Agreement. The confidentiality obligation shall, however, not apply to material and information, (a) which is or later becomes generally available or otherwise public; or (b) which the receiving Party has received from a third party without any obligation of confidentiality; or (c) 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 (d) which a Party has independently developed without any use of or reference to the Confidential Information received from the other Party.
- The obligations of confidentiality in Section 11.1 above shall not prevent a Party from disclosing Confidential Information where it is required to do so under any mandatory law, or by order of a court or governmental body of authority of competent jurisdiction, or by any mandatory requirement of a regulatory authority. If legally possible and applicable, the recipient of such order shall notify the disclosing Party to allow a reasonable opportunity to seek protective order or equivalent or to appeal, and to extent reasonably possible, make effort to protect any sensitive information.
- Each Party shall promptly upon termination of the 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 other Party and, unless the Parties separately agree on destruction of such Confidential Information, return the Confidential Information in question (including all copies and reproductions thereof) to the other Party. Each Party shall, however, be entitled to retain the copies required by law or administrative orders applicable to such Party.
- Notwithstanding the confidentiality obligation set forth herein, each Party shall be entitled to use the general professional skills and experience acquired in connection with the performance of the Agreement.
- The rights and obligations related to the Confidential Information shall survive the termination of the Agreement for any reason for a period of three (3) years from such termination.
Limitation of Liability
- The total aggregate liability of a Party towards the other Party under the Agreement shall not exceed (a) as regards Consulting Services, the Fees paid by the Customer to the Company for such Consulting Services, and (b) as regards the Cloud Services, the amount of Fees for Cloud Services paid by the Customer to the Company during the six (6) months immediately preceding the event giving rise to liability.
- Under no circumstances shall a Party shall be liable for any indirect, incidental, or consequential damages, loss of profits, revenue or business, damages caused due to decrease in turnover or production or loss, alteration, destruction or corruption of data.
- The limitations of liability shall not apply to damages caused by wilful misconduct or gross negligence or to liability under Section 6 (Indemnification) or Section 11 (Confidentiality) or to the Customer's obligation to pay the applicable Fees.
Term and Termination
- The Agreement shall enter into force on the date set out in the Purchase Order.
- The Agreement shall remain in force (a) as regards the Consulting Services, for the duration of the Consulting Services, and (b) as regards the Cloud Services and Support Services for an initial period of one (1) months, after which the Agreement shall remain in force until terminated by a Party by a one (1) months' written notice to the other Party.
Each Party may terminate the Agreement for cause (in Finnish: "Purkaa") with immediate effect upon written notice to the other Party if:
- the other Party becomes insolvent, applies for or is adjudicated in bankruptcy or liquidation or corporate restructuring or otherwise ceases to carry on its business; or
- the other Party is in material breach of the terms and conditions of the Agreement and fails to remedy such breach within thirty (30) days from the date of receipt of a written notice by the non-defaulting Party, such written notice detailing the breach and the intention to terminate.
- Upon the termination of the Agreement, any Fees owed by the Customer for any Services provided until the effective date of the termination shall become immediately due. All Fees are non-refundable.
Governing Law and Disputes
- The Agreement shall be governed by and construed in accordance with the substantive laws of Finland, excluding its choice of law provisions.
- All disputes arising out of or relating to the Agreement shall be primarily settled by amicable negotiations between the Parties. Should the Parties fail to reach an outcome acceptable to both Parties as a result of the negotiations within thirty (30) days from the date when a Party has requested in writing to commence with the aforementioned negotiations, the dispute shall be finally settled in arbitration in accordance with the Arbitration Rules of the Finland Chamber of Commerce. The arbitration shall take place in Helsinki, Finland and the language to be used in the proceedings shall be English.
- Notwithstanding anything set out in Section 14.2 above, the Company shall have the right to claim unpaid Fees in a public court.
- The Company shall be free to use subcontractors in the performance of its obligations and exercise of its rights under the Agreement. The Company shall be liable for the acts and omissions of its subcontractors under the Agreement as for its own.
- The Company shall have the right to use its relationship with the Customer in its marketing and sales promotion activities.
- Neither Party shall be liable for any delays or non-performance of its obligations or any damages caused by an impediment beyond its reasonable control, which it could not have reasonably taken into account at the time of entering into the Agreement, and whose consequences it could not reasonably have avoided or overcome. For instance, errors in public communication networks or electricity supply shall constitute such an impediment. Strike, lockout, boycott and other industrial action shall constitute a force majeure event also when the Party concerned is the target or Party to such action. A force majeure event suffered by a subcontractor of Party shall also discharge such Party from liability, if the work to be performed under subcontracting cannot be done or acquired from another source without incurring unreasonable costs or significant loss of time. Each Party shall without delay inform the other party in writing of a force majeure event and the termination of the force majeure event.
- All formal notices and other formal communication between the Parties hereunder shall be made in the English language.
- Neither Party shall be entitled to assign nor transfer all or any of its rights, benefits and obligations under the Agreement without the prior written consent of the other Party, which consent shall not be unreasonably withheld or delayed. The Company shall, however have the right to assign the Agreement in connection with a sale or transfer of its business or a relevant part thereof.
- Any terms and conditions that by their nature or otherwise reasonably should survive a cancellation or termination of the Agreement shall also be deemed to survive.
- “Affiliate” of a Party means any legal entity that is (a) directly or indirectly owning or controlling the Party, or (b) under the same direct or indirect ownership or control as the Party, or (c) directly or indirectly owned or controlled by the Party, for so long as such ownership or control lasts. Ownership or control shall exist through direct or indirect ownership of more than fifty percent (50 %) of the nominal value of the issued equity share capital or more than fifty percent (50 %) of the shares entitling the holders to vote for the election of the members of the board of directors or persons performing similar functions;
- “Agreement” means the agreement between the Company and the Customer, consisting of these General Terms and any other terms applicable to the Services;
- “Cloud Service(s)” means the cloud based services provided by the Company to the Customer, as set out in the Agreement;
- “Company” means Vuolearning Oy (Business ID 2647901-3), a company duly registered under the laws of Finland, having its principal place of business at Tekniikantie 2, 02150 Espoo, Finland;
- “Confidential Information” shall have the meaning set out in Section 11.1;
- “Consulting Service(s)” shall mean the consulting services provided by the Company to the Customer as set out in the Purchase Order;
- “Customer” means the company entering into the Agreement with the Company;
- “Deliverables” shall mean the results of the Consulting Services, including any software and documentation produced during the performance of the Consulting Services;
- “Error” shall mean any substantial non-compliance of a Deliverable from what has been set out in the Agreement;
- “Fee(s)” means the compensation paid by the Customer to the Company for the Services;
- “General Terms” means these General Terms and Conditions;
- “Intellectual Property Rights” means: (i) patents, inventions, designs, copyright (including the right to amend, modify, develop and assign) and related rights, database rights, trade marks and related goodwill, trade names (whether registered or unregistered), and rights to apply for registration; (ii) proprietary rights in domain names; (iii) knowhow and confidential information; (iv) applications, extensions and renewals in relation to any of these rights; and (v) all other rights of a similar nature or having an equivalent effect anywhere in the world;
- “Parties” and “Party” means the Company and the Customer jointly and separately;
- “Purchase Order” shall mean the purchase order entered into by the Company and the Customer, to which the General Terms are attached to;
- “Service(s)” shall mean the Cloud Services, the Consulting Services and the Support Services, as well as any other services agreed to be provided by the Company to the Customer; and
- “Support Services” shall mean the support services provided by the Company to the Customer, as set out in the Agreement.