(V2.0, 2018-02-01)

 (1)      These General Terms of Service shall apply to the use of Application and Service by Customer under the Service Agreement to which these General Terms of Service have been attached to. The Service Agreement together with these General Terms of Service shall be hereinafter referred to as the “Agreement”. The definitions made elsewhere in the Service Agreement, shall also apply to these General Terms of Service. The prices and payment terms, term and termination of the Agreement and the service description of the Application are set out in the Service Agreement.

(2)      The license to use Application and Service is granted by Humap Software Oy (“Supplier”). The Service and Application shall be provided to Customer on a software as a service (“SaaS”) basis.

(3)      Customer may give user rights to Application and Service to its end customers (“End Customer(s)”) subject to the terms of this Agreement.

1 - USER LICENSE; INTELLECTUAL PROPERTY RIGHTS

(1)      Supplier hereby grants to Customer a limited, non-exclusive and non-transferable license to use Application, including Service, subject to any limitations in Service Agreement, solely for Customer’s and its End Customers’ internal business operations. Customer may only allow third parties to access  Application or Service subject to an express written permission of Supplier. Notwithstanding the foregoing, Customer may give user rights to its End Customer and End Customer’s employees. Customer shall be liable for its End Customers’ and End Customers’ Users’ use of the Application and Service towards the Supplier.

(2)      The number of authorized Users shall be specified in the Service Agreement or in its Appendix “Scope & Prices”.

(3)      All right, title and interest in and to all copyright, patent, trademark, design right, database protection right, and any other form of statutory protection of any kind (whether registered or unregistered) and applications for any of the foregoing respectively as well as any know-how, inventions, and trade secrets in or related to the Application and Service and thereto related documentation (including modifications) and all parts and copies thereof shall remain exclusively vested with and be the sole and exclusive property of Supplier and/or its licensors or subcontractors.

(4)      Except as expressly stated herein, this Agreement does not grant Customer any intellectual property rights in Application or Service and all rights not expressly granted hereunder are reserved by Supplier and its subcontractors or licensors, as the case may be.

(5)      The right to use the Application and Service granted to Customer shall be valid only during the term of Service Agreement.

2 - INSTALLATION ENVIRONMENT

(1)      Application is installed in hardware operated by Supplier or by a third party for Supplier and Customer shall not have any license or right to install any copies of Application, Service or any of its components in its own ICT-systems or hardware.

(2)      Supplier shall operate and maintain Application in its own technical environment or in an environment hosted for Supplier by a third party at Supplier’s selection, making it available on a "Software as a Service (SAAS)" basis.

(3)      Users shall log into Application with individualized encrypted URL links. The connection to Application shall be encrypted using standard SSL encryption. Customer shall be responsible for the data connections from its own ICT systems to Application.

3 - USER MANAGEMENT AND ACTIVATION

Unless otherwise agreed in Service Agreement, Customer shall manage Users including the creation and management of User accounts for the individual Users and respond to User questions and requests.

4 - SERVICE LEVELS

(1)      Supplier shall be responsible for Application operating as specified in Service Agreement, including, but not limited to ensuring sufficient hardware capacity, electricity, storage media, etc. as well as operation processes such as backups.

(2)      Detailed target Service Levels applicable to the technical availability of Application shall be specified in Hosting Service Description, available upon request from Supplier and as updated from time to time by and at the discretion of Supplier.

(3) Access to Application will be available through the Internet, provided, however, that Supplier shall not be responsible for Customer’s inability to access Application due to unavailability of Internet service, failure of communications, or similar reasons. In cases where the unavailability to access and use the Application is not caused by the unavailability of Customer’s Internet service, Customer may, within thirty (30) days after the end of any calendar month request in writing a reduction of the respective Monthly Service Fee for each working day of the preceding calendar month during which it is shown that Application has not been generally accessible to Users due to reasons attributable to Supplier for a continuous period exceeding four (4) working hours. The reduction shall equal five percent (5%) of the Monthly Service Fee for each such day.

(4) Supplier shall make the respective reduction of Monthly Service Fee in the next invoice after the request; provided, however, that no reduction shall be made for requests which cannot be supported with any service logs, technical records, or other documentation.

5 - MAINTENANCE AND UPDATES

(1)      Supplier shall be responsible for the maintenance of Service and shall have a right to update Service with such fixes, service packs, new releases and versions as Supplier sees fit, subject to retaining Application functionality and Service Levels.

(2)      Supplier shall maintain Application following Supplier’s standard document "Hosting Service Description" made available to Customer upon request and as updated from time to time by and at the discretion of Supplier.

6 - TECHNICAL SUPPORT

Supplier shall provide Customer with Technical Support following Supplier’s standard document “REAL Technical Support Services” made available to Customer upon request, and as updated from time to time by and at the discretion of Supplier.

7 - USE RESTRICIONS

(1)      Customer shall not directly or indirectly reverse engineer, decompile, disassemble or otherwise attempt to discover the source code or underlying ideas or algorithms of Application; copy, modify, translate, or create derivative works based on Application; rent, lease, distribute, sell, resell, assign, or otherwise transfer rights to Application; use Application for timesharing or service bureau purposes or otherwise for the benefit of a third party; circumvent or attempt to circumvent any usage control features of the Application; or remove any proprietary notices or labels on Application.

(2)      The above restriction shall also apply to Customer having a third party perform any of the above on its behalf or under Customer instructions.

8 - IPR INDEMNIFICATION

(1)      Supplier shall defend any action brought against Customer if Service infringes any third party copyright, trademark, trade secret or other intellectual property right and shall settle any such action and shall pay such damages, which

  • a final court of competence orders Customer to pay without right of appeal; or

  • Customer has with Supplier’s written consent paid to a third party as part of a settlement; if the payment ordered by the court or the settlement would be a result of Service breaching a third party Intellectual Property Right

(2)      As a condition to Supplier’s obligations under this Section 8, Customer shall

  • notify Supplier promptly in writing as to any event of which Customer has knowledge that would give rise to an indemnity obligation hereunder;

  • provide reasonable cooperation and assistance to Supplier; and

  • grant Supplier full authority to manage the defence or settlement of the claim.

Supplier shall maintain control and direction of said defence at its expense, provided that Customer, at Customer’s expense, shall have the right to participate in such defence.

(3)      The indemnification obligation specified above shall not apply to any claim for infringement resulting from:

  • the combination, operation or use of Application or Service with any code or programs not developed or supplied by Supplier if such claim would have been avoided without such combination, operation or use;

  • the use of Application or Service as modified or enhanced by Customer if such modification or enhancement results in an infringing or violating product or computer program, and if the use of the unmodified Application or Service would have avoided such infringement or violation; or

  • the use of Application or Service in violation of the provisions of the Agreement.

(4)         The indemnification set out in this section shall be Customer’s sole and exclusive remedy in case of any third party claims relating to intellectual property right infringements.

9 - CUSTOMER DATA

(1)      In connection with the use of Service and Application, Customer, End Customer or Users may enter various data into the Application ("Customer Data").

(2)      The intellectual property rights in and the title to Customer Data shall belong to Customer or Customer’s End Customer as the case may be, and Customer shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of Customer Data.

(3)      In addition to processing of Customer Data, Supplier and its subcontractors may process data with contact details and identification data on Customer and its employees and other representatives ("Account Data"). If Supplier processes Customer Data or Account Data or any other data considered personal data on behalf of Customer as data processor, or as Customer’s subprocessor, the following terms shall apply:

  • the parties hereby record their intention that Customer or Customer’s End Customer shall be the data controller and Supplier shall be a data processor in respect of such personal data;

  • Customer shall ensure that Customer is entitled to transfer the relevant personal data to Supplier so that Supplier may lawfully use and process the personal data in accordance with this Agreement on behalf of Customer or as Customer’s subprocessor;

  • Customer shall ensure that the relevant third parties and data subjects have been informed of, and have given their consent to, such use, processing, and transfer as required by all applicable data protection legislation;

  • Supplier shall process the personal data only in accordance with the terms of this Agreement and any lawful instructions reasonably given by Customer from time to time;

  • Supplier shall process the personal data only for the purpose of providing the Application and other services relating thereto and to the extent and for the duration necessary for providing the Application and such services;

  • Supplier shall ensure that Supplier’s personnel authorised to process the personal data have committed themselves to confidentiality;

  • Supplier shall reasonably and when possible, taking into account the nature and scope of processing, assist Customer in fulfilling Customer’s, or its End Customer’s, obligation to respond to requests relating to data subjects’ statutory rights;

  • Supplier shall reasonably and when possible, taking into account the nature and scope of processing, assist Customer in ensuring compliance with Customer’s, or its End Customer’s, obligations to perform security and data protection assessments, security incident notifications and/or prior consultations of the competent supervisory authority when required by applicable mandatory data protection laws; and

  • each party shall take appropriate technical and organizational measures against unauthorized or unlawful processing of personal data or its accidental loss, destruction or damage. Customer hereby authorizes Supplier to use subcontractors and other processors in the processing of personal data carried out under this Agreement;

  • Customer shall have the right to audit Supplier’s compliance with the terms of this Agreement relating to processing of personal data; and

  • Supplier shall inform Customer regarding the geographical locations where personal data is stored and processed. In case Customer has explicitly requested that the personal data is stored and processed within the EU/EEA, Supplier shall not transfer any personal data processed hereunder outside the EU/EEA.

(4)         Unless otherwise agreed in writing, Supplier shall provide Customer with Customer Data upon Customer's written request within 30 days of Customer’s written request. Customer Data shall be delivered in an electronic form commonly in use. Supplier shall have the right to charge for the collection, processing and delivery of the information in accordance with its then current price list.

(5)         Supplier shall within reasonable time delete all personal data relating to Customer’s or End Customer’s employees or other personal data Supplier processes on behalf of Customer as data processor or subprocessor,  for the purposes of this Agreement and the provision of the Service and Application hereunder, after the termination of this Agreement.

10 - DISCLAIMER; LIMITATION OF LIABILITY

(1)      Except as specifically provided under this Agreement, the Service and Application are provided "as is" and with the functionalities available at each time without warranty of any kind, either express or implied, including but not limited to the warranties of merchantability and fitness for a particular purpose.

(2)      Supplier shall not be liable for any indirect or consequential damages. Supplier's total aggregate liability under or in connection with this Agreement shall be limited to the aggregate service fees paid by Customer for the last 6 months immediately preceding the occurrence for which damages are claimed.

(3)      Nothing contained herein shall be deemed to limit Supplier's liability towards the Customer in the event of and to the extent that the liability results from wilful misconduct or gross negligence of Supplier.

11 - MISCELLANEOUS

(1)      Governing Law. This Agreement shall be exclusively governed by and construed in accordance with the laws of Finland without regard to its choice of law provisions.

(2)      Dispute Resolution. Any dispute, controversy or claim arising out of or relating to this Agreement, 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 number of arbitrators shall be one (1). The seat of arbitration shall be Helsinki, Finland. The language of the arbitration shall be English. The arbitral proceedings and award shall be confidential. Nothing in this Agreement shall be deemed to limit the parties' rights to seek interim injunctive relief or to enforce an arbitration award in any court of law. With respect to any violation by Customer of any intellectual property rights and/or confidential information of Supplier and/or payment obligations against Supplier under this Agreement, Supplier shall have the right, at its sole discretion, to seek remedies in public courts within any applicable territory.

(3)      Confidentiality. Neither party shall disclose to third parties any material or information received from the other party and marked as confidential or which should be understood to be confidential, and shall not use such material or information for any other purposes than those stated in this Agreement. The confidentiality obligation shall, however, not be applied to material and information:

  • which is generally available or otherwise public; or

  • which the party has received from a third party without any obligation of confidentiality; or

  • 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

  • which a party has independently developed without using material or information received from the other party.

(4)      Severability. If any part of this Agreement is held to be invalid or unenforceable by any court, tribunal or other authority having jurisdiction, this shall not affect the validity or enforceability of the rest of this Agreement. Instead, this Agreement shall be construed and interpreted so that its effect shall remain as close as legally possible to the effect it would have had without such invalidity or unenforceability.

(5)      Assingment. Neither party may assign this Agreement without the prior written consent of the other party. Notwithstanding the foregoing, Supplier shall be entitled to assign this Agreement in connection with a sale of its business or assets pertaining to the operations to which this Agreement relates to.