Terms of service

Unless the context otherwise requires, the following expressions have the meaning set out below (and where the context so admits the singular shall include the plural and vice versa):

"Affiliate" of a Party means any legal entity that is (i) directly or indirectly owning or controlling the Party, (ii) under the same direct or indirect ownership or control as the Party or (iii) 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;

"Cloud Services" mean Efecte's proprietary software and related software products and applications, including any amendments, updates, upgrades, enhancements and new versions thereof or Documentation which is delivered to the Customer via information networks;

"Customer Material" means the Customer's data or material uploaded by the Customer to the Cloud Services or otherwise communicated to or made available to Efecte on behalf of the Customer for the provision of the Cloud Services or other material which is separately defined as Customer Material by Efecte and the Customer;

"Documentation" means the Efecte proprietary manuals and other documentation and material for the Cloud Services and Support Services;

"Intellectual Property Rights" mean (i) patents, inventions, designs, copyright 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;

"Party" or "Parties" mean(s) Efecte and/or the Customer, as the context may require;

"Purchase Order" means the Purchase Order specifying the Cloud Services and Support Services as well as price, payment and other commercial terms related thereto and concluded between the Reseller and Customer or Efecte and Customer, as the case may be;

“Reseller” means the legal entity who is authorized to resell Efecte’s Cloud Services to Customers and who is identified as the Reseller in the Purchase Order. If the Customer has purchased the Cloud Services directly from Efecte, the references to Reseller in this Agreement are not applicable;

"Service Description(s)" mean(s) the service description specified in the Purchase Order describing the Cloud Services, the Support Services and any service levels;

"Software" means Efecte's proprietary software and related software products and applications, including any amendments, updates, upgrades, enhancements and new versions thereof;

“Support Services” mean support services for the Cloud Services provided by Efecte, optionally available if so specified in the Purchase Order, specified in Section 2.9 below.

"Third Party Software" means any software, software products or software services developed by a third party or the Intellectual Property Rights of which belong to a third party, but which are supplied by the Reseller or Efecte in or in connection with the Cloud Services;

“Working Day” means Monday through Friday, excluding public and bank holidays in Finland.

 

4.2 All Third Party Software is exclusively supplied, licensed and made available subject to the standard terms and conditions of the respective supplier or developer of the Third Party Software in question (including but not limited to the terms of use, terms of warranty and terms of indemnity). The applicable Third Party Software license terms and conditions are made available under the "Legal Notice" section, or similar, of the Cloud Services user interface or appended to the Purchase Order as an appendix, as the case may be.

 

4.3 All rights, title and interest, including all Intellectual Property Rights in and to the Customer Materials shall belong exclusively to the Customer or a third party. The Customer grants to Efecte a perpetual, non-exclusive right and license to use the Customer Material for the sole purpose of providing the Cloud Services and the Support Services to the Customer. Furthermore, the Customer grants to Efecte a perpetual, non-exclusive and royalty-free right and license to analyse, use and exploit for the benefit of its services and business, and incorporate into its services, in any manner, any non-personal and/or anonymous data created by or for the Customer, or generated in any other manner, in connection with the Customer’s use of the Cloud Services. For the avoidance of doubt, Efecte owns all Intellectual Property Rights to statistical data, services analyses or other content or results that Efecte compiles or creates based on the Customer’s use of the Cloud Services.

 

4.4 The Customer shall be responsible that the Customer Material does not infringe upon any third party rights or applicable laws or regulations. By submitting any data to Efecte or to the Cloud Services the Customer warrants that it has obtained all necessary rights, licenses and permissions under the applicable laws, decrees, regulations and agreements to submit the data to Efecte and its subcontractors or to the Cloud Services and have Efecte to process such data for the purposes of the Agreement.

 

4.5 The parties shall comply with the terms of the Data Processing Addendum (“DPA”), which is incorporated into this Agreement by this reference and forms and inseparable part of the Agreement, with respect to the provision and processing of Personal Data as defined in the DPA. Efecte will use appropriate technical and organizational measures in the Cloud Services to protect the Customer Material from unauthorized access, processing, loss, or disclosure. The Customer agrees, that Efecte, its Affiliates and it’s subcontractors will process Customer Material in accordance with applicable data protection laws and this Agreement, including the DPA.

 

5.2 The Customer shall be responsible for ensuring that its employees and third parties using the Cloud Services on the Customer's behalf maintain their user names and passwords diligently and do not disclose them to any third parties. The Customer shall be responsible for all use of the Cloud Services under the Customer's user accounts.

 

5.3 The Customer undertakes to inform Efecte without delay if any password has been revealed to a third party or if the Customer has a reason to suspect any misuse of a user account.

 

5.4 Efecte may at any time require the Customer to change any password to ensure data security and other security of the Cloud Services. The Customer shall change any password as required by Efecte promptly upon the written request of Efecte.

 

6.2 In the case of destruction, loss, alteration or damage of any Customer Material, Efecte shall, upon the request of the Customer, use its reasonable efforts to recover such Customer Material. Efecte shall have the right to charge all reasonable costs and expenses arising from any such work, if the destruction, loss, alteration or damage of the Customer Material arises from or is caused by any act, non-compliance or negligence of the Customer.

 

7.2 The Receiving Party shall keep the Confidential Information as confidential and shall not use, copy, reproduce, store or refer to the Confidential Information for any other purpose than for the purposes of fulfilling its obligations under the Agreement, and shall not disclose the Confidential Information to any third party without the prior written consent of the Disclosing Party.

 

7.3 The confidentiality obligations set out herein shall not apply to Confidential Information which:

 

7.4 is in the public domain at the time of disclosure or later becomes part of the public domain through no fault of the Receiving Party;

 

7.5 was lawfully and rightly known to the Receiving Party prior to disclosure by the Disclosing Party as proven by the written records of the Receiving Party;

 

7.6 is disclosed to the Receiving Party by a third party who did not obtain such Confidential Information, directly or indirectly, from the Disclosing Party and who was entitled to disclose such information; or

 

7.7 was independently developed (by personnel having no access to the Information) by the Receiving Party as proven by the written records of the Receiving Party.

 

7.8 The obligations of confidentiality 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.

 

7.9 The Receiving Party may give access to Confidential Information only to those of its Affiliates, officers, employees, subcontractors or financial, legal or other advisers, who need to know such Confidential Information for fulfilling the Receiving Party’s obligations under the Agreement.

 

7.10 At the request and sole discretion of the Disclosing Party and without delay upon the termination of the Agreement, the Receiving Party shall, within fourteen (14) calendar days from receipt of such request, return all originals, copies, reproductions and summaries of Confidential Information and all other tangible materials and hardware provided to the Receiving Party as Confidential Information or, to the extent not possible or the Disclosing Party so requests, certify destruction of the same.

 

7.11 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.

 

7.12 The rights and obligations related to the Confidential Information shall survive the termination or cancellation of the Agreement for a period of three (3) years from such termination or cancellation.

 

8.2 If Efecte justifiably deems that the Cloud Services infringe or may infringe upon any third party rights, Efecte shall have the right, at its own expense and in its sole discretion, to (i) acquire for the Customer the right to continue the use of the Cloud Services or (ii) replace the Cloud Services or (iii) modify the Cloud Services to the extent necessary to avoid the infringement.

 

8.3 If none of the alternatives set out in Section 8.2 are available to Efecte on commercially reasonable terms and/or without the significant loss of time, Efecte shall have the right to terminate the Customer’s User Licenses and/or the Agreement subject to a notice period defined by Efecte, upon which the Customer agrees to cease using the Cloud Services and agrees to reimburse the Fees paid by the Customer for the terminated User Licenses less a proportion equal to the time of use of the Cloud Services by the Customer.

 

8.4 The indemnity obligations set out in this Section 8 shall not apply to and Efecte is not liable for any claim, that (i) is based on a claim by any Customer Affiliate; or (ii) is based on the modification or alteration of the Cloud Services or a modification or alteration influencing the Cloud Services by the Customer or any third party; or (iii) 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; (iv) arises or results from the use of the Cloud Services in combination with any software, equipment or products not developed or supplied by Efecte or which are contrary to instructions given by Efecte; or (v) could have been avoided by using the latest version of the Cloud Services made available by Efecte to the Customer.

 

8.5 In relation to the Cloud Services, the Customer agrees to defend Efecte and the Reseller, at its own expense, against any third party claims or actions where a third party claims that the Customer Material or the use of the Customer Material in accordance with the terms and conditions of the Agreement infringes upon a right of a third party. The Customer undertakes to pay any damages, costs and expenses caused to Efecte and Reseller by any such third party claim as well as any damages awarded to a third party claimant by a competent court of law or court of arbitration due to a reason attributable to the Customer Material.

 

8.6 This Section 8 sets out the entire liability of Efecte and the Customer’s sole remedy in case of any infringement of any Intellectual Property Rights.

 

9.2 Neither Party shall be liable for any indirect, incidental, consequential, punitive or special losses or damages, or any loss of profit, loss of revenue, loss of business, or the loss, alteration, destruction or corruption of data, costs resulting from recreation of data or loss of goodwill or any other damage that cannot be reasonably foreseen.

 

9.3 The limitations of liability set out in this Section 9 shall not apply to (i) damages caused by wilful misconduct or gross negligence, (ii) liability under Section 8 (Indemnification) or Section 7 (Confidentiality), or (iii) the use of the Cloud Services in a way that exceeds the licensing limitations (including the amount of User Licenses) set out in the Purchase Order.

 

10.2 Each Party may terminate the Agreement with immediate effect upon written notice to the other Party if:

 

10.3 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

 

10.4 the other Party is in material breach of the terms and conditions of this 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.

 

10.5 Efecte shall have the right to terminate the Agreement with immediate effect and without any obligation to pay damages or any other liability to the Customer where the Customer has itself used or allowed any third party to use the Cloud Services contrary to the Agreement.

 

10.6 Upon termination of the Agreement for any reason, the Customer shall immediately cease using the Cloud Services and Support Services. Efecte shall return to the Customer the Customer Material in a generally used electronic format by way of physical media or by way of providing the Customer access to the material online. Efecte shall have the right to charge reasonable costs and expenses arising from the collection and processing of the Customer Material and of returning it to the Customer. Efecte's obligation to store Customer Material shall end when thirty (30) days have passed from the termination of the Agreement. Thereafter, Efecte shall have the right to destroy and erase such Customer Material if the Customer has not requested returning such material. Furthermore, Efecte shall have the right to destroy or store such Customer aterial to the extent Efecte may be obliged to do so under applicable law or due to an administrative order.

 

11.2 Efecte shall be free to use subcontractors in the performance of its obligations and exercise of its rights under the Agreement. Efecte shall be liable for the acts and omissions of its subcontractors under the Agreement as for its own.

 

11.3 The Customer may not assign or transfer the Agreement or any of its rights or obligations thereunder to any third party without the prior written consent of Efecte.

 

11.4 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, and whose consequences it could not reasonably have avoided or overcome. 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.

 

11.5 No failure to exercise, nor any delay in exercising, on the part of either Party, any right or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or remedy prevent any further exercise thereof or the exercise of any other right or remedy.

 

11.6 The Agreement shall be governed by and construed in accordance with the substantive laws of Finland, excluding its choice of law provisions.

 

11.7 Any dispute, controversy or claim arising out of or relating to the Agreement, or the breach, termination or validity thereof, 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 sixty (60) days from the date when a Party has requested such negotiations in writing, the dispute, controversy or claim arising out of or relating to this contract, or the breach, termination or validity thereof, shall be finally settled by arbitration in accordance with the Arbitration Rules of the Finland Chamber of Commerce. The seat of arbitration shall be Helsinki, Finland, and the language of the arbitration shall be English.