1. SCOPE OF THE TERMS; PARTIES
These Terms apply to Agreement(s) (defined in Section 2) on the provision of the Trail-service and/or the Services (both defined in Section 2) by Trail Systems Oy (“Supplier”) to its customer (“Customer”). In the event of a conflict between these Terms and other terms of the Agreement, the terms elsewhere in the Agreement shall prevail. Supplier and Customer are also hereinafter referred to each as a “Party” and together as the ”Parties”.
The following terms shall have the meanings assigned to them herein, unless otherwise agreed in the Agreement:
“Agreement” shall mean an agreement in which the Parties agree on licensing of the Trail-service to Customer and/or provision of the Services to Customer, such as (i) an agreement signed by the Parties, (ii) Supplier’s offer accepted by Customer or (iii) Customer’s order accepted by Supplier e.g. by commencing the delivery.
“Documentation” shall mean usage and installation manuals and other documents in written or electronic form that are supplied by Supplier to Customer or that are included in the Trail-service, but shall exclude marketing materials.
”Equipment” shall mean equipment manufactured by third parties that Supplier supplies to Customer on behalf of and in the name of Customer.
“Error” shall mean an error, which can be reproduced and which causes the Trail-service not function materially as described in the Documentation. Errors caused by incompatibility with web-browsers or other interfaces are not Errors and Supplier shall not be liable for them.
“Intellectual Property Rights” shall mean patents, inventions, trade secrets, rights in databases, trademarks, domain names, techniques, model rights, rights in know-how, methods and copyrights (including without limitation right to amend and further develop as well assign one’s rights), whether registered or not and including applications for grant of any of the foregoing and any other intellectual property rights and rights or forms of protection having equivalent or similar effect to any of the foregoing which may now or at any time hereafter exist anywhere in the world.
“Services” shall mean the services agreed in the Agreement to be performed by Supplier, such as specification work, installation, integration, consultation, deployment support, Support Service or training.
“Service Hours” shall mean the service hours agreed in the Agreement, during which Supplier performs the agreed Services. In case the Service Hours have not been agreed in the Agreement, the Service Hours shall be Finnish business hours mon-fri 08 a.m.-5 p.m. excluding national holidays in Finland.
”System” shall mean a system intended for equipment maintenance developed by Supplier, including the modifications, enhancements and new versions and updates of the System. ”Trail-service” shall mean a software service delivered via data network, which enables Customer to access its data stored in the System. The Trail-service is defined in its Documentation as may be modified by Supplier at any time, and it includes the modifications, enhancements and new versions and updates of the Trail-service.
3. DELIVERIES; DUTIES OF THE PARTIES
Supplier will deliver the Services, the Equipment and licenses in the agreed delivery time using Supplier’s working methods. In project deliveries the Parties may define their responsibilities and time schedules in more detail in a project plan attached to the Agreement.
The delivery term is ExWorks (Incoterms 2010).
In case not otherwise agreed in the Agreement, Customer shall at its expense acquire the equipment, connections, software and data security that are required for its use of the Trail-service and for data transfer with the System and the Trail-service, according to the compatibility requirements set by Supplier from time to time. Customer is liable for that the Trail-service is suitable for the Customer’s intended use.
Customer shall without delay give Supplier all necessary information and materials and access to facilities that are necessary for Supplier to be able to perform the Services, the Equipment and licenses in agreed time.
Customer shall be liable for the content it submits to the Trail-service or the System, and for the use and correctness of the submitted data. Customer undertakes not to submit any data that may violate rights of third parties or otherwise violate law or that is unmoral, extremist, not deemed in good taste or that offends persons of any of ethnic origin. Supplier may remove Customer’s data if required by law or an order given by any authority.
Customer shall also perform its own duties in time. Each Party shall contribute to the provision of the deliveries with respect to factors under the command or control of the Party and make decisions that are necessary for the delivery, without undue delay. Supplier may charge Customer for expenses or delay caused by erroneous information supplied by Customer or for expenses or delay otherwise caused by Customer.
In case not otherwise agreed in the Agreement, Supplier takes back-up copies of Customer’s data stored in the System upon intervals agreed in the Agreement.
Subject to Customer’s payment of the license fees subject to the Agreement and provided that Customer is not in breach of these Terms, Customer is granted a non-exclusive and non-transferable right to use the designed functionalities of the Trail-service in Customer’s internal use. In the Trail-service Customer may view its own data. Customer may not use the Trail-service or the data produced by the Trail-service to offer services to use them to third parties or otherwise transfer the Trail-service or the data produced by the Trail-service to third parties. The Agreement may include also other limitations regarding the licensed use, such as limitations in usage volumes.
Customer may use the Documentation internally to support the above said licensed use of the Trail-service. Customer may not repair or otherwise modify the Documentation, or, if technically possible, the Trail-service or the System. Even if these actions would be technically possible, Customer may not disassemble, decompile or reverse engineer or otherwise attempt to derive the source code of the software used in the implementation or production of the Trail-service or the System.
Supplier may suspend the delivery of or access to the Trail-service:
a) in case it is necessary for the purposes of installation, change or maintenance work, or
b) due to interruption in public networks, repair of Errors or equipment, security risks, problems in electricity supply, if required by law or an order by an authority or if Supplier suspects misuse of the Trail-service or breach of the Terms.
If the suspension is due to a service break planned by Supplier, Supplier shall, where possible, inform Customer of the suspension in advance. Supplier will inform Customer of other suspensions, where possible, without delay after Supplier has received information about the cause of the suspension.
Supplier shall be entitled to make changes to the System and the Trail service at any time as Supplier wishes.
Customer’s users shall maintain user names and passwords diligently and they may not be disclosed to third parties. Customer shall be responsible for the use when its user names and passwords have been used and for the resulting damages. Customer shall be responsible for that it has the consents from its users that are required for Supplier and its subcontractors to process the users’ personal data for the purposes of the Agreement.
5. SUPPORT SERVICE
The Support Service includes that Customer may report Errors to Supplier’s Help Desk addresses and/or telephone numbers informed by Supplier. The Help Desk will serve during the Service Hours. The Support Service may be contacted by such Customer’s named main users, who are trained and qualified in the use and function of the Trail-service.
The Support Service does not include investigation or correction of defects in the Equipment.
Customer shall, in connection with reporting an Error to Supplier, describe and, at the request of Supplier, demonstrate how the Error occurs. Supplier shall use commercially reasonable efforts to correct the said Errors during the Service Hours. Supplier cannot, however, warrant that each and every Error can be corrected or that the Errors can be corrected within a certain time period. Supplier may prioritize Errors taking into account their severity and effect.
The Support Service does not cover correction of Errors that are caused by: (a) external factors such as wearing or wetting of barcodes attached in the Equipment; (b) Equipment or faults or problems in the Equipment, (c) faulty installation or use by anyone else than Supplier or failure to follow the terms of the Agreement or usage instructions; (d) a modification or repair performed by anyone else than Supplier; (e) any product or service not delivered by Supplier; or (f) use in violation of the compatibility requirements set by Supplier. Also, Supplier does not have any other liability for damages caused by the occurrences described above.
If an Error is not covered by the Support Service, Supplier shall be entitled to charge for the location and correction of the Error in accordance with Supplier’s price list.
The warranties for the Equipment are governed by the respective manufacturer’s warranty terms. The fulfillment of such terms shall be the manufacturers’ responsibility. Supplier is not liable for the function of the Equipment or any errors in the Equipment.
7. ABOUT THE TECHNICAL FEATURES OF THE SERVICE
In case, when using the Trail-service, cookies including a session identifier relating to the session are stored in Customer’s computer, the purpose of the cookies is to identity the user’s session.
When the Trail-service has been made available for Customer, Customer shall without undue delay report the Errors in the Trail-service to Supplier in written form. Customer shall describe and, at the request of Supplier, demonstrate in more detail how the Error occurs.
The delivery of the Trail-service and the performed Services shall be deemed accepted in case (i) Customer does not report Errors to Supplier within fourteen (14) days from provision of the Trail-service and/or the Service (e.g. in project deliveries from the date when Supplier has finished its tasks in the project), (ii) Customer notifies it has accepted the delivery, (iii) Supplier has corrected the Errors that Customer has during such time period reported as said above, or (iv) Customer takes the Trail service and/or the result of the Service into production use.
Errors that do not substantially interfere with the use of the Trail-service shall not prevent the acceptance, but Supplier shall correct them as part of the Support Service.
In case the delivery is made in parts, the acceptance procedure in this Section shall apply also to the acceptance of partial deliveries, but the acceptance period is seven (7) days from completing the partial delivery.
9. INTELLECTUAL PROPERTY RIGHTS
Any and all Intellectual Property Rights in and to the Trail-service, the System, the Services, the results of the Services, the Documentation and the Equipment, and any copies, modifications, translations, amendments and derivatives thereof are and shall belong to Supplier or its licensors or suppliers.
Title to the Equipment shall pass to Customer upon full payment of the fee payable for the Equipment.
10. FEES AND PAYMENT
In case some fees are not agreed in the Agreement, they shall be in accordance with Supplier’s then current price list.
Supplier shall have the right to adjust the recurring fees by notifying Customer thereof at least three (3) months prior to the fee change. In case a fee is increased, Customer may terminate the respective license or Service to terminate on the effective date of the increase, by notifying Supplier thereof in writing at least thirty (30) days before the intended date of increase. However, such termination will become effective only in case Supplier, after receipt of Customer’s termination notice, does not cancel the fee increase.
10.1 Invoicing and Payment
In case not otherwise agreed in the Agreement, the fees for licenses, Equipment and Services will be invoiced as follows:
a) recurring fees, such as monthly or quarterly license and support fees, in advance of the invoicing period;
b) one-time license fees upon delivery and the Equipment upon shipment; and
c) other Services monthly afterwards.
Invoices are payable within fourteen (14) days from the date of the invoice. Any overdue payment shall be subject to an overdue interest at the rate of fourteen percent (14 %) per annum. Supplier may suspend its deliveries to Customer in the event that Customer has delayed in making any payment despite of a payment reminder.
10.2 Taxes and Expenses
Value-added tax, withholding tax, duties, levies and other taxes and governmental charges shall be borne by Customer and added to the fees.
Supplier shall have the right to charge Customer for any travel and accommodation expenses and daily allowances accrued to Supplier from the performance of the Services. In addition, Supplier may also charge fifty percent (50 %) of the applicable hourly fee for time taken by a journey exceeding thirty (30) kilometers back and forth.
Each Party (i) shall keep in confidence all information of the other Party of confidential nature or marked as confidential (“Confidential Information”); (ii) shall not disclose or hand over the other Party’s Confidential Information to any third party and (iii) shall not use or utilize the other Party’s Confidential Information for any other purposes than in the fulfillment of the purpose of the Agreement. The structure and the user interfaces of the Trail-service and the System, and their underlying ideas are always Supplier’s Confidential Information. Supplier may disclose Customer’s Confidential Information to its subcontractors for the fulfillment of the purpose of the Agreement provided that the subcontractors have committed to a confidentiality provision substantially similar as herein.
The foregoing obligations shall not apply to information: (i) which at the time of the disclosure is or later becomes generally available or otherwise public through no fault of the Party receiving the information; (ii) which was in the possession of the receiving Party without restrictions on use or disclosure prior to receipt of the same from the other Party; (iii) which the receiving Party receives separately from a third party, who did not, in making such disclosure, breach any obligation of confidentiality; (v) which the receiving Party demonstrably has independently developed without using the other Party’s Confidential Information; or (vi) which must be disclosed by the receiving Party subject to law or an order by an authority or a court. Disclosures of information caused by security attacks or other similar causes directed at the System or the Trail-service shall not be deemed as breach of confidentiality obligation. Supplier shall have the right to utilize the general expertize and skills that its and its subcontractors’ personnel have learnt in conjunction with deliveries to Customer.
Supplier shall have no liability to Customer or any third party for any (i) indirect, incidental, special or consequential damages such as loss of profit, revenue or savings, or for punitive damages or damages payable to third parties, or (ii) loss or alteration of data nor for any damages incurred as a result thereof such as expenses involved in the reconstitution or transfer of data, or for cover purchase, even if Supplier was advised of the possibility of such damages.
In no event shall Supplier’s aggregate maximum liability arising out of or related to the Agreement for any causes of action occurred during any calendar month (including possible price returns or reductions based on the same causes of action) exceed the amount of the net fees paid by Customer to Supplier for the respective Service or the Trail-service. If the liability is not directly related to a certain Service or the Trail-service, the aggregate maximum liability of Supplier (including possible price returns or reductions based on the same causes of action) is limited to the net fees paid by Customer to Supplier for the said calendar month. Supplier’s liability for the Equipment is limited in all cases to refund of the purchase price of the Equipment.
The limitations of liability shall not apply to damages caused by gross negligence or intentional act or by breach of confidentiality obligation, license terms or Section 14.2 of these Terms.
13.1 Termination due to Cause
Either Party may terminate the Agreement immediately with a written notice with respect to the delivery in whose fulfillment the breach occurred (i.e. the Trail-service, Equipment and/or Service), in case the other Party commits a material breach of the Agreement and fails to remedy the same within thirty (30) days after receipt of a written demand from the other Party to cure the breach (in which notice the other Party notifies of its intent to terminate the Agreement).
Either Party may terminate the Agreement immediately with a written notice, in case the other Party is adjudicated bankrupt or bankruptcy application is filed regarding it or the other Party is otherwise demonstrably other than temporarily insolvent. In any such case Supplier may alternatively require an advance payment as a condition for fulfilling Supplier’s contractual duties.
13.2 Effects of Termination
Upon termination of the Agreement all fees payable to Supplier will become immediately due and payable. If Customer’s license to use the Trail-service is terminated, Customer shall return all Documentation related to the Trail -service or, if requested by Supplier, destroy the Documentation at Customer’s expense.
In case Supplier, in connection with the termination of the Agreement, transfers Customer’s data to Customer, the data will be transferred in the electronic form as it was stored in the System. Supplier charges for the processing and transfer of the data in accordance with Supplier’s price list. Supplier is not obliged to store Customer’s data in the System after the termination of the Agreement, but Supplier may continue to store any data in case law or an order by an authority so requires.
14.1 Assignment and Subcontractors
Either Party may not assign the Agreement to a third party, without the prior written consent of the other Party. However, Supplier may assign the Agreement without the consent of Customer to a transferee, when assigning the ownership of Supplier’s business or part thereof, or to Supplier’s affiliate, and, for the avoidance of doubt, by operation of law. Supplier may also assign its receivables based on the Agreement to a third party. Licenses granted to Customer do not, without a written consent of Supplier, transfer to a third party even based on a merger or other corporate restructuration.
Supplier shall have the right to subcontract its obligations. Supplier shall be liable for the work of its subcontractors as work of its own.
Customer shall not export, or transfer for the purpose of re-export, any products, technical information, results of Services or Documentation in violation of any regulation, treaty, executive order, law, statute, amendment or supplement thereto. It is the responsibility of Customer, at Customer’s expense, to obtain all approvals and consents required for any export or re-export.
14.3 Recruitment Restriction
Customer may not hire any employee or director of Supplier or enter into any other agreement or other arrangement, whose purpose is to obtain the work contribution of such person, until twelve (12) months has passed from the earlier of (i) termination or expiration of the Agreement or (ii) cessation of the person’s employment or director relationship with Supplier. In case of a breach of this recruitment restriction, Customer shall pay to Supplier as liquidated damages seventy thousand (70.000) euros for each breach of this Section.
Upon termination of the Agreement, the provisions relating to Intellectual Property Rights, confidentiality, limitations of liability, recruitment restriction and governing law and dispute settlement, shall survive. Also, any other provisions which by their nature contemplate effectiveness beyond the termination of the Agreement, shall survive the termination.
14.5 Entire Agreement
The Agreement constitutes the complete agreement between the Parties with respect to the subject matter of the Agreement and supersedes all previous proposals, marketing materials and other communications between the Parties with respect to the subject matter of the Agreement.
If any provision of the Agreement is found to be contrary to law, the other provisions of the Agreement will remain in full force and effect. Such invalid provision shall be amended by the Parties or the court or arbitration body and the Agreement shall be interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law.
14.7 Waiver and Amendment
No change or amendment of the Agreement shall be binding unless made in writing and signed by duly authorized representatives of each Party. A failure by a Party to use any of its rights based on the Agreement shall not be construed as a waiver of such right.
14.8 Force Majeure
A Party shall not be liable for delays, defects or damages caused by factors due to an impediment beyond his control, which he cannot reasonably be deemed to have taken into account at the time of the conclusion of the Agreement, and the consequences of which he could not reasonably have avoided or overcome. Such events of force majeure shall include, without being limited to, natural disasters, breakdown of electricity or networks, security attacks, strikes and other labor disputes or acts of government. A labor dispute shall be considered a force majeure event also when the Party concerned is the target or a party to such an action. The force majeure events suffered by subcontractors shall also be deemed as force majeure events. Supplier shall not have any liability for failures in Internet or other public networks or data traffic.
14.9 Governing Law and Dispute Settlement
The Agreement shall be construed in accordance with the laws of Finland excluding its choice of law provisions and the UN Convention on Contracts for the International Sale of Goods. All disputes arising out of the Agreement shall be finally settled by one (1) arbitrator under the rules of the Board of Arbitration of the Central Chamber of Commerce of Finland. The arbitration shall take place in Helsinki, Finland, and shall be conducted in English.
Notwithstanding the above, each Party shall be entitled to seek equitable and/or injunctive relief to prevent or stop a violation of the terms and conditions in the Agreement and Supplier may take legal actions concerning overdue payments, in any court of law.