Terms of service
1 Applicability and definitions
1.1 These Terms of Service (“Terms”) are applied to the Service provided by SDG Monitor Oy (“Provider”) to its customers (“Customer”). These Terms shall form an integral part of a subscription(“Subscription”) ordered by the Customer from the Provider and the Customer agrees to be bound by the terms and conditions of these Terms.
1.2 Confidential Information means any information and material in whatever form disclosed to one Party by the other Party and either marked as confidential or reasonably understood to be confidential.
1.3 Customer Data means information or material transferred by the Customer to Service or information or material otherwise provided or made available to the Provider for Customer’s benefit and for purposes of the Service.
1.4 Effective Date is the date when the User registers for the Service and takes it in use.
1.5 Intellectual Property Right means any and all patents, utility models, designs, copyright, domain names, trademarks, names and any other intellectual property rights, whether registered or not and applications for any of the aforementioned respectively as well as any trade secrets.
1.6 Service means various data presentations, such as dashboards created from Customer Data.
1.7 Service Fee means the agreed fee which covers the provision of the Service for the term of the Subscription.
1.8 User means a natural person employed by the Customer.
1.9 User ID shall mean user names, passwords or other identification method of the Service.
2 General obligations of the Parties
2.1 The Provider undertakes to perform the tasks for which it is responsible in conformity with the Subscription, with due care and with the professional skills reasonably expected from an experienced service provider and in compliance with all applicable laws and regulations in connection with the Service.
2.2 The Customer shall be responsible for all use of the Service by its Users and shall comply with all applicable laws and regulations in connection with the Customer’s use of the Service.
2.3 The Customer shall be responsible for ensuring that the Service fulfills Customer’s intended purpose. The Provider specifically excludes any liabilities and warranty for a particular purpose.
2.4 The Customer shall notify the Provider immediately of any unauthorized use of the Service.
3 Access to Service
3.1 Provider agrees in exchange of the payment of the Service Fee by the Customer to provide access to the Service on a non-exclusive basis pursuant to the terms and conditions of the Subscription.
3.2 Customer shall permit access to the Service only by individuals who fall within the definition of a User.
3.3 Customer shall not transfer, lease, loan, resell, distribute or otherwise make the Service available in whole or in part in any form whatsoever to any third parties.
3.4 Customer shall not attempt to gain access to any parts of the Service to which the Customer has not acquired access rights nor will the Customer attempt to modify, copy, decompile, adapt, reverse engineer or otherwise attempt to derive source code of the Service or any computer software programs the Service is based upon.
3.5 The Customer shall be liable for and shall ensure that the Users comply with these Terms. Each User ID and password may be used only by a single individual.
4 User IDs
4.1 The individual User shall be responsible for creation and termination of User IDs pursuant to Provider’s instructions.
4.2 The Customer shall be responsible for ensuring that its Users maintain User IDs with care and do not disclose them to third parties. The Customer shall be responsible for the use of the Service while using its User IDs.
4.3 The Customer shall ensure that if any User ID has been revealed to a third party or if the Customer has a reason to suspect misuse of a User ID, the User shall immediately terminate or disable such User ID.
4.4 The Customer shall change the User IDs required for the use of the Service upon written request of the Provider if necessary due to data security risk to the Service.
5 Customer Support
5.1 The Provider shall not provide the Customer any technical or use related support, unless otherwise separately agreed.
6 Changes to the Service
6.1 The Provider shall be entitled to make such change to the Service that (i) takes place in the production environment of the Service and does not adversely affect the contents of the Service; (ii) is necessary to prevent or mitigate data security risk to the Service; (iii) or results from law or regulation by competent authorities. If the Provider makes a change to the Service due to reasons specified in this Section 6.1 and such change has an effect on the Service, the Provider shall inform the Customer of the change well in advance or, if this is not reasonably possible, without delay after the Provider has become aware of such matter.
6.2 The Provider shall be entitled to make a change to the Service other than specified above in Section 6.1 after notifying the Customer reasonably in advance. If the contemplated change has an adverse material effect on the contents of the Service, the Provider must inform the Customer about the change in writing at least 60 days before the effective date of the change informing that the Customer shall have the right to terminate the Subscription by giving 30 days prior notice. The termination notice shall be given in writing no later than 14 days following the effective date of the change.
7 Suspension of Service
7.1 The Provider shall have the right to suspend delivery of the Service for scheduled maintenance breaks as informed to the Customer by the Provider.
7.2 The Provider shall have the right to suspend delivery of the Service due to installation, change or maintenance work of general data network outside Provider’s control or due to severe data security risk to the Service or if required by mandatory law or competent authorities. The Provider shall notify the Customer of the suspension and the duration of the suspension in advance or, if this is not reasonably possible, without delay after the Provider has learned of such matter.
7.3 The Provider shall have the right to prevent Customer’s access to the Service without prior notice, if the Provider reasonably suspects that the Customer burdens or uses the Service in such a manner as to jeopardize the delivery of the Service to other users.
8 Production and Use Environments
8.1 The Provider shall be responsible for the production environment of the Service and for ensuring that the Service substantially corresponds to what the Parties have agreed in writing. The Provider shall not be responsible for the usability and compatibility of the equipment or software used by the Customer with the Service.
8.2 The Customer shall be responsible for the protection of Customer’s data environment and costs related to use of the Service.
9 Prices and Terms of Payment
9.1 The non-refundable Service Fee is invoiced annually in advance and is together with its’ payment term specified in connection with the Subscription.
10.1 Each Party shall keep in confidence all Confidential Information and shall not disclose the Confidential Information to any third party or use the Confidential Information for any purpose other than for the purpose of the Subscription.
10.2 A receiving Party shall have the right to:(i) copy Confidential Information only to the extent necessary for the purpose of the Subscription; and (ii) disclose Confidential Information only to those of its employees and sub-contractors fulfilling the obligations of the Subscription who need to know Confidential Information for the purpose of the Subscription. Notwithstanding the foregoing the confidentiality obligation shall not be applied to any material or information: (i) which is generally available or otherwise public other than by a breach of the Subscription on the part of the receiving Party; or (ii) which the Party has received from a third party without any obligation of confidentiality; or (iii) which was in the possession of the receiving Party prior to receipt of the same from the other Party without any obligation of confidentiality related thereto; or (iv) which a Party has developed independently without using material or information received from the other Party; or (v) which a Party shall disclose pursuant to a law, decree, or other order issued by the authorities or judicial order.
10.3 Each Party shall cease using Confidential Information received from the other Party promptly upon termination of the Subscription or when the Party no longer needs the Confidential Information in question for the purpose of the Subscription (whichever first) and, unless the Parties separately agree on the destruction of such material, return the material in question and all copies thereof. Each Party shall, however, be entitled to retain copies required by law or regulations.
10.4 The rights and obligations under this Section 10 shall survive the termination or expiration of the Subscription and shall remain in force for a period of 2 years from the Effective Date, or if the Confidential Information is disclosed after the Effective Date, for a period of 2 years from the date of disclosure.
10.5 Notwithstanding anything in contrary in this Section 10, both Parties have the right to use the other Party as a reference and the Provider has the right to use the Customer Data as stated in Section 16.1
11.1 If a Party finds that a delay will occur or is likely, the Party shall without delay inform the other Party in writing of the delay and of the effects of the delay on the Subscription.
11.2 If any performance of the other Party is delayed by more than 30 days from the due date despite a written reminder, the other Party shall be entitled to suspend its performance without any liability until the Party in delay has fulfilled its obligations under the Subscription.
12 Force Majeure Event
12.1 Force Majeure Event means any failure by a Party to perform its obligations under the Subscription caused by an impediment beyond its control, which it could not have taken into account at the time of the conclusion of the Subscription, and the consequences of which could not reasonably have been avoided or overcome by such Party. If not proven otherwise such impediments may include, but are not limited to, acts of government, fires, disturbance of data networks, floods, epidemics, quarantine restrictions, strikes, lock-outs, industrial disputes, riots, acts of terror or specific threats of terrorist activity, transportation or energy. Strike, lock-out, boycott and other industrial action shall constitute a Force Majeure Event also when the Party concerned is the object or a party to such an action.
12.2 Save for the obligation to pay money properly due and owing, neither Party shall be liable for delays and damages caused by a Force Majeure Event.
12.3 A Force Majeure Event suffered by a subcontractor of a Party shall also discharge such a Party from liability if subcontracting from other source cannot be made without unreasonable costs or a significant loss of time.
12.4 A Party shall notify the other Party in writing without delay of a Force Majeure Event. The Party shall correspondingly notify the other Party of the termination of a Force Majeure Event.
13 Intellectual Property Rights
13.1 The Intellectual Property Rights to the Service and any amendments, modifications, new versions thereto shall belong to the Provider. The product names associated with the Service are service marks and trademarks of the Provider or third parties, and no right or license is granted to use them. The Subscription does not grant the Customer any rights of ownership in or related to the Service or the Intellectual Property Rights owned by the Provider. The Customer acknowledges that, except as specifically provided under the Subscription, no other right, title, or interest is granted.
13.2 The Intellectual Property Rights and the title to the Customer Data shall belong to the Customer.
13.3 The Subscription has no effect on the Intellectual Property Rights each Party had prior the Effective Date. The Subscription shall not give a Party any direct, indirect or implied right or license to use or otherwise exploit Intellectual Property Rights belonging to the other Party.
13.4 The Parties recognize and agree that the Service is made available via data networks and that no copies of software programs or other copyrighted works are delivered to the Customer.
14 Infringement of Intellectual Property Rights
14.1 The Provider ensures that the Service as used pursuant to the Subscription does not infringe copyrights enforceable in Finland.
14.2 The Provider shall at its own expense defend the Customer against lawsuits claiming that the Service as such infringes any of the above-mentioned rights of a third party provided that the Customer promptly and no later than within 10 days notifies the Provider in writing of such lawsuits and permits the Provider to defend or settle the lawsuits and gives to the Provider all necessary information and assistance available and the necessary authorizations. The Provider shall pay all damages finally awarded in a trial to a third party, if the Customer has acted in accordance with the foregoing.
14.3 If in the justified opinion of the Provider the Service infringes any of the above-mentioned rights of a third party, the Provider may at its own expense either (a) obtain the right of continued use of the Service for the Customer or (b) replace the Service with a comparable service or (c) modify the Service in order to eliminate the infringement. If none of the above-mentioned alternatives is available to the Provider on reasonable terms, the Customer shall, at the request of the Provider, stop using the Service.
14.4 The liability of the Provider for infringement of Intellectual Property Rights shall be limited to this Section 14.
15.1 The Customer may from time to time provide suggestions, comments or feedback (“Feedback”) with respect to the Service or Confidential Information provided originally by the Provider. The Customer agrees that all Feedback is voluntary and, even if marked as confidential (unless subject to a separate written agreement), will not create a confidentiality obligation for the Provider. The Provider will be free to use, disclose, reproduce, license or otherwise distribute such Feedback, without obligation or restriction of any kind with relation to a Party’s Intellectual Property Rights or otherwise.
16 Customer Data
16.1 The Provider has the right to use the Customer Data for the purposes of the Subscription and provisioning of the Service. In addition, the Provider has a perpetual right to use, amend, modify and further process the Customer Data for its’ own business purposes.
16.2 The Customer shall not include personal data in the Customer Data and the Provider shall not process personal data in the context of the Subscription.
16.3 The Customer shall inform the Provider the source of the Customer Data.
16.4 The Provider’s responsibility to retain the Customer Data available for the Customer terminates 60 days from termination or expiration of the Subscription, after which the Provider shall at its own expense destroy the Customer Data unless the Customer has requested delivery of the Customer Data. However, the Provider shall be entitled to destroy or retain the Customer Data to the extent required by law or regulation by a competent authority.
17.1 The Subscription shall become effective on the Effective Date and shall remain in force for an initial subscription term of 12 months. Thereafter, the term of the Subscription shall automatically renew for consecutive periods of 12 months, unless terminated by either Party by issuing a written notice to the other Party no less than 3 months prior to the expiry of the initial term or the then current renewal term.
17.2 If the fulfilment of the Subscription has been delayed for more than 1 month due to a Force Majeure Event, each Party shall have the right to terminate the Subscription with immediate effect by notifying the other Party thereof in writing. In such an event neither Party has right to claim damages for such termination
17.3 Each Party shall have the right to terminate the Subscription with immediate effect upon written notice to the other Party if (i) the other Party commits a material breach of any of the terms and conditions of the Subscription and fails to remedy such a breach within 14 days of the other Party’s written notice thereof; (ii) the other Party is insolvent, declared bankrupt, is put into liquidation, sells all of its assets, ends its business or it otherwise ceases with its payments.
18 Limited Warranty
18.1 The Customers’ use of the Service is at Customers’ sole risk. The Provider does not warrant uninterrupted use or operation of the Service or the Customers’ access to any content. No advice or information, whether oral or written, obtained by the Customer from the Service will create any warranty that is not expressly stated in these Terms.
18.2 However, the Provider warrants that it will perform its obligations in a professional manner and the Service shall be performed in accordance with the methods normally applied by a well reputed service provider. The Provider agrees to rectify any fault in the Service with the urgency required by the circumstances.
18.3 No representation or other affirmation of fact, including statements regarding performance of the Service, which is not contained in the Subscription, will be binding on the Provider.
19 Limitation of Liability
19.1 THE AGGREGATE TOTAL LIABILITY OF THE PROVIDER TOWARDS THE CUSTOMER IN RESPECT OF ANY CAUSE OF ACTION RELATING TO OR ARISING OUT OF THE SUBSCRIPTION SHALL NOT EXCEED 20% OF THE ANNUAL SERVICE FEE PAID BY THE CUSTOMER UNDER THE SUBSCRIPTION.
19.2 NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY INDIRECT OR CONSEQUENTIAL DAMAGES, ARISING OUT OF OR RELATED TO THE SUBSCRIPTION, INCLUDING, WITHOUT LIMITATION, DAMAGES RESULTING FROM DELAY OF DELIVERY OR FROM LOSS OF PROFITS, DATA, BUSINESS, OR GOODWILL, HOWEVER CAUSED AND ON WHATEVER THEORY, WHETHER BASED ON BREACH OF CONTRACT OR WARRANTY, TORT (INCLUDING NEGLIGENCE), THE FAILURE OR ASSERTED FAILURE OF A PARTY TO PERFORM ITS OBLIGATIONS HEREUNDER, OR OTHERWISE, AND WHETHER OR NOT THE PARTY ALLEGED TO HAVE CAUSED SUCH DAMAGES HAS BEEN ADVISED OR IS AWARE OF THE POSSIBILITY OF SUCH DAMAGES. ANY CLAIM FOR DAMAGES HAS TO BE PRESENTED WITHIN 3 MONTHS FROM THE DATE THE CLAIMING PARTY LEARNED OR SHOULD HAVE LEARNED THE CAUSE FOR THE CLAIM.
19.3 The limitations of liability shall not apply to: (i) damages caused by wilful misconduct or gross negligence; (ii) breach of confidentiality provisions.
20.1 Neither Party shall have the right to assign the Subscription or any of its rights or obligations hereunder to any third party without the prior written consent of the other Party. Notwithstanding the foregoing each Party may transfer its receivables under the Subscription to a third party. The Provider may transfer the Subscription and the rights and obligations hereunder to such a third party to which the business activities related to the Subscription has been transferred.
21 Governing Law and Dispute Resolution
21.1 The Subscription shall be exclusively governed by Finnish law without reference to its choice of law rules.
21.2 The Parties shall try to resolve any dispute, controversy or claim concerning or related to the Subscription by negotiations. In the event no settlement can be reached by means of negotiations, any dispute shall be finally settled by arbitration in accordance with the Arbitration Rules of the Finland Chamber of Commerce. The arbitration tribunal shall consist of one arbitrator. The arbitration shall take place in Helsinki, Finland. The Parties agree that the arbitration procedure and all thereto related material and information shall be treated as Confidential Information in accordance with the Subscription.