AICO_Waves

1. Application These Aico General Service Terms and Conditions (the “Terms”) shall apply to services provided by Aico Group Oy (hereinafter the “Licensor” or interchangeably the “Supplier”) related to Software. These Terms are valid for the subscription and/or agreement to which these Terms accompanies (“Agreement”).

The “Software” means Licensor’s software products as identified in the Agreement, in machine-executable object code form, and the related documentation and materials. The Software also refers to new versions, updates, upgrades and bug fixes to the Software which the Licensee may be entitled to through the Agreement, support or otherwise, if any.

The “Licensee” or the “Customer” means the end user and/or the customer who has accepted these Terms and has executed the Agreement accordingly. The Licensor and the Licensee together are the “Parties” of the Agreement.

The Subscription includes the right to use Software and support services.

 

2. Implementation Project Services In consideration of payment of agreed fees and charges by the Customer, the Supplier shall perform tasks and duties of agreed implementation project to enable initiation of the usage of the Software and agreed services by the Customer.

Both Parties shall carry out their duties set forth for the implementation project with due skill and care, and each Party shall contribute to the performance of the implementation project with regard to such matters which are under the control of the Party.

The Customer shall perform any tasks, duties or obligations and provide necessary correct and adequate information or access rights on time to the extent necessary to enable the Supplier to perform or carry any tasks, duties, obligations set forth for the Supplier.

If the Supplier performance is delayed due to fault or change in schedule by the Customer, the Supplier has right to payment in respect of idle time of Supplier personnel incurred as a result of such delay on a time and material basis according to the Supplier price list.

Each party shall promptly notify the other Party if it becomes aware of matters which will or are likely to materially affect the implementation of the project. Furthermore, each Party shall make its decisions required under the implementation project without undue delay. Any delivery dates are estimates.

The implementation project shall be deemed to be accepted, (a) when the Supplier has corrected all errors and deficiencies which are reported by the Customer in writing; or (b) if the Customer has not presented a written complaint of an error or deficiency which prevents the acceptance, within five (5) days from the date of the Supplier report of the final delivery of implementation project or (c) if the Customer takes the Software or services into production use.

The Customer shall build and make all infrastructure, hardware and other environment related to project work, testing, training and acceptance – as well as needed access rights and dedicated connections – available on time for the Supplier at no cost to the Supplier.

The Customer shall be responsible for Customer’s system environment as well as for third-party software and hardware related to the Software or project, as well as any changes and costs thereof e.g. due to project or deployment of the Software. The Supplier shall not be liable for any costs, errors or changes related to – or necessary to – Customer’s system environment or any third-party products. The Supplier shall be entitled to charge from the Customer any work and idle time of the Supplier caused by Customer’s system environment or third-party software or errors or deficiencies thereof.

 

3. Support Services Support services consist of error correction services, new versions, updates and maintenance releases to the Software and/or other services as may have been agreed under the Agreement and respective appendix.

The description of support services at the effective date of the Agreement is attached to the Agreement. These services are subject to change at Supplier’s reasonable discretion; however, the Supplier will not materially reduce the level of services provided during the period for which fees for these services have been paid.

Services are provided through Supplier’s digital service channel. The Supplier shall be contacted by the Customer in all matters related to the support service by using Supplier’ digital service channel solely by the Customer’s admin user(s) appointed by Customer in writing. Such contact person must be trained in the use of the Software as reasonably requested by the Supplier.

The Supplier provides support services 24 months from the release date of each version of the Software.

 

4. Provision of Cloud Services Should the Parties have agreed provision of Software as cloud service under the Agreement and respective appendix, these Terms shall apply and prevail over any conflicting terms related to the Software license and delivery of Software, if any.

Under cloud services, the Software is installed in the Supplier data center and provision of cloud services is preceded by service implementation project agreed by the Parties.

 

5. Cloud Services: Service Content and Access The Supplier will grant the Customer access to agreed cloud service. Use of cloud service and access to it requires use of internet by the Customer. The cloud service is available only through internet via Software As a Service or similar hosting service delivery model and as defined by the Supplier from time to time. Description of agreed service is attached to the Agreement or as defined and made available by the Supplier.

The Customer shall be responsible for its’ access to internet and for technical environment required by the use of cloud service. Unless otherwise agreed, the Customer shall be responsible for the maintenance and updates of interfaces and integrations to third party software connected to or associated with the service.

The Customer shall be responsible for acquiring and maintaining the functional status of the hardware, connections and software that the Customer needs to use the service. The Customer shall be responsible for the protection of Customer’s data system and telecommunication and other equivalent costs related to use of the service. The Customer shall be responsible for preparing the hardware, connections, software and data systems to meet the operating environment specifications of the service, as well as for ensuring that the service fulfills Customer’s intended purpose. The Customer shall be responsible to install in its’ own environment software necessary for the use of the service, as defined and made available for the Customer by the Supplier.

 

6. Cloud Services:  Right to Use Cloud Service The Supplier grants the Customer the right to access and use the cloud services and the Software and materials included in the services in consideration of agreed payments and subject to these Terms and the Agreement.

Customer’s right to use is limited to agreed services, volumes, use amounts and to Customer’s own business operations. Furthermore, the use of any non-Supplier software included in the service, if any, will also be governed by separate terms set by the third party providing the non-Supplier software.

Supplier services and related software, materials and information are exclusive property of the Supplier or respective third party; Customer’s right to use these are limited solely to the rights expressly granted according to the Agreement and these Terms.

The Customer may use the cloud services only in accordance with the Agreement. Customer may not reverse engineer, decompile, disassemble or work around technical limitations in the service or related software, except where applicable law permits it despite this limitation. Customer may not disable, tamper with or otherwise attempt to circumvent any billing mechanism that meters Customer use of the service. Customer may not rent, lease, lend, resell, transfer, or sublicense any services or software associated or included with the service to or for third parties.

Customer shall control and monitor access by customer’s end users of the service and software, and customer is responsible for their use of the service and software in accordance with the Agreement.

 

7. Cloud Services: Changes to the Cloud Service The Supplier reserves the right to improve, develop and change the content, features and functionalities of the cloud service and related software at Supplier’s discretion; however, the Supplier will not materially reduce the level or content of services during the period for which fees for services have been paid.

However, the Supplier shall be entitled to make any such change to the service which relates to the production environment or performance of service and does not affect the contents of the service or service level or is necessary to prevent data security or other security risk to the service, or results from law or regulation by authorities.

 

8. Cloud Services: User Names and Passwords  The Customer shall be responsible for ensuring that its’ users maintain user names and passwords diligently and do not disclose them to third parties. The Customer shall be responsible for the use of the service and related software using its user names and passwords.

The Customer undertakes to inform the Supplier 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 shall change the password required for the use of the service upon written reasonable request of the Supplier.

 

9. Cloud Services: Customer Materials Customer materials means information or material transferred by or for the Customer to the cloud service.

The intellectual property rights and the title to the Customer materials shall belong to the Customer or a third party. The Supplier has the right to use or access Customer materials only for the purposes of the Agreement. The Customer shall be responsible for Customer materials and for ensuring that the Customer materials do not infringe third party rights or violate any legislation in force at the time.

Unless otherwise agreed in writing, the cloud service enables the Customer to retrieve Customer materials on a self-service basis. Should such self-service not be enabled, the Supplier shall provide the Customer with the Customer materials upon the Customer’s written request within 30 days of the Customer’s written request. The Customer materials shall be delivered in an

electronic form commonly in use or as otherwise agreed between the Parties. The Supplier shall have the right to charge for the collection, processing and delivery of the Customer materials in accordance with agreed pricing principles or according to the Supplier price list if pricing principles valid for this work has not been agreed to. The Supplier’s responsibility to keep the Customer materials terminates 30 days from termination or expiration of the Agreement, after which the Supplier may at its own expense destroy the Customer Materials, unless the Customer has requested return of the Customer materials. However, the Supplier shall be entitled to destroy or retain the Customer materials to the extent required by law or regulation by authority.

 

10. Suspension of the Cloud Service The Supplier may suspend Customer use and access of the cloud service if: (1) it is reasonably needed to prevent unauthorized access to Customer Data; or (2) Customer violates the terms of the Agreement.

The Supplier shall have the right to suspend delivery of the cloud service due to force majeure or installation, change or maintenance work of general data network or due to severe data security risk to the service or if required by law or regulation by authorities.

The Supplier shall have the right to suspend the Customer use and access to the cloud service, if the Supplier reasonably suspects that the Customer burdens or uses the service in such a manner which jeopardizes the delivery of the service to other users or if traffic created by the Customer clearly exceeds any referenced amount recommended or notified by the Supplier or what can otherwise be considered as normal. The Supplier shall inform the customer of the suspension of the service and the reasons thereof without undue delay.

 

11. Service Levels   11.1 Service Levels of Support Services Support services include correction of errors according to the service levels agreed under the Agreement and respective appendix.

In connection with any error report or other support ticket, the Customer must describe how the error or incident occurs and must attach related documents and upon request demonstrate occurrence of the error or incident according to methods, tools and templates defined by the Supplier. The Supplier is not obliged to initiate correction of error or incident if the Customer has not reported the error or incident as set forth herein.

The Customer representative shall at the Supplier’s request be available during the performance of the service or correction. The Customer shall make available to the Supplier needed access rights and dedicated connections related to services on time at no cost.

The Customer shall inform the Supplier of any changes in Customer system environment and plans thereof in good time in advance, such as changes of hardware or associated software or versions thereof. Any change in the system environment carried out without Supplier approval will (i) release the Supplier from the service obligations if such a change will affect Supplier’s ability to provide the services and (ii) entitle the Supplier to charge separately for the services and work performed due to such change.

The Customer shall contribute actively to Supplier’s performance e.g. by providing resources and experts necessary to assist the Supplier to perform the services and by cooperating with the Supplier or necessary third parties throughout the services.

An error of Software covered by services means that the Software does not substantially operate in the agreed operating environment as described in the specifications. The service does not cover the repair of an error attributable to (i) a change or correction made to the Software by other than the Supplier or (ii) use of Software contrary to the instructions given by the Supplier or (iii) breach of Software license terms or (iv) use of the Software together with another software, materials or device.

11.2 Service Levels of Cloud Services The availability of the cloud service and related software is agreed in the Service Level Agreement (”SLA”) attached to the Agreement. Unless otherwise agreed, always the latest available Supplier SLA will be applicable.

SLA describes the credits and corrective measures by the Supplier which the Customer is entitled to.

Service error in cloud services is defined as situation in which service and related software is not available for the Customer as agreed due to reasons attributable to the Supplier. Any error or less than agreed availability which is attributable to any third party or to the Customer, or to maintenance, update or installation break informed by the Supplier in advance do not constitute an error or non-availability. For the sake of clarity, correction of errors in the Software or in other related software is not covered by the cloud service.

11.3 Support and Cloud Service Conditions Unless otherwise agreed, the Supplier shall carry out corrections and services only in its own premises through a remote connection. All travelling and accommodation expenses in connection with the services shall be charged to the Customer. Investigating and correcting errors or incidents reported to the Supplier but not covered by the service shall be considered as additional services otherwise covered and charged under the Agreement.

The Software and service may be configured anytime by the Supplier to send automatically to the Supplier error, usage and statistical information, which may be used e.g. to develop and improve the Software and the service and to investigate errors thereof or to be used for determine the fees and invoices related to the Software and services.

The Parties may have agreed on fixed service credits, sanctions or other pre-agreed fixed price reductions or corrective measures for failure to meet any agreed service levels. Such service credits, sanctions or price reductions shall be the sole and exclusive remedy of Customer for such failures, nonavailability, errors and consequences thereof. To make a valid claim, the Customer must notify any such failure, non-availability or service error and related claims by the end of the month following the month during which the deficiency in availability or other error occurred.

 

12. License The Aico Software license agreement executed by Customer is applied to new versions, updates and maintenance releases of the Software made available to Customer under the Agreement or support and maintenance services. Any other results and deliverables of the projects and services shall be licensed to the Customer according to the same terms as the Software. Customer is entitled to no other rights or remedies than as provided by the Aico Software license agreement executed by the Customer regarding Software or such results and deliverables.

 

13. Warranty The Supplier shall carry out services in a professional manner, skill and care. The Supplier’s liability for errors shall be limited to correction of the error or repeating the service at its own expense, provided that the Customer makes any claims without unreasonable delay and in any case within one (1) month from the performance of the service and during the validity of the Agreement.

The duties set forth in this section define Supplier’s sole responsibilities and liabilities as well as exclusive remedies available for the Customer for any error, default or mistake in the Software, in the services or in the results or deliverables thereof.

 

14. Prices The prices for services and/or Subscription are set forth in the respective Agreement.

Unless otherwise agreed, all reasonable travelling, accommodation and per diem allowance expenses related to providing services shall be charged to the Customer separately.   Travel time will be charged at the agreed hourly rate. The Supplier shall not charge travel time within Helsinki Capital area.

Unless otherwise agreed, all prices, fees and charges are expressed and invoiced in EUR and exclusive of value added tax, withholding tax or any other taxes, custom duties, public charges or transportation costs. Applicable value added tax and other official taxes, duties and public charges will be added to the prices and charges in accordance with the then current applicable regulations. Transportation and delivery term is “Ex Works”.

Unless otherwise agreed, the prices are valid until further notice. The Licensor is entitled to adjust the prices for each new Subscription Period or otherwise annually upon notice to the Licensee. Such notice may be delivered with the invoice for the new Subscription Period. Should the Licensee not accept such adjusted prices, the Licensee is entitled to terminate the Agreement upon effective date of such price adjustment or associated Subscription Period.

During the last month of each Subscription Period or any other time as seen reasonably necessary by the Licensor, the Licensor may verify Licensee’s usage of Software and related volumes by using remote or other connection used in Software support services or otherwise available for the Licensor and enabling the Licensor to determine usage of the Software by the Licensee. The Licensor may use results of such verification to (i) charge usage exceeding agreed usage immediately and (ii) make proposal regarding renewal for the subsequent Subscription Period. The Licensor may equally verify the Licensee’s usage of Software also any time during Subscription Period and require additional payments respectively.

 

15. Payment Terms The Licensor shall invoice the Licensee in advance all fees and charges according to Subscription Periods or contract year. The Supplier shall charge other items, such as the implementation project and other services performed on a time and material basis, monthly in arrears.

Payment term is thirty (30) days from the date of the invoice. All objections regarding an invoice must be made in writing before the due date. Interest on overdue payments is 12% p.a.

The fees and charges are final and non-refundable, even if Licensee’s need or usage of Software or services reduces during the Subscription Period. In case of increased usage of the Software additional fees apply. The Licensor may – at its’ sole discretion – decide not to charge minor increased usages.

In the event the Licensee delays payment, the Licensor may suspend the Software license or service upon written notification of such suspension.

 

16. Confidentiality Each Party shall keep in confidence the details of the Agreement and all material and information received from the other Party which is either marked as confidential or which should be understood to be confidential, and may not use such material or information for any purposes other than those of the Agreement. The Software is confidential information of the Licensor. Also, each Party agrees to disclose confidential information only to those employees, distributors, contractors, agents or group companies who are entitled and required to access it in furtherance of the Agreement and who are required to protect it against unauthorized disclosure. The confidentiality obligation shall, however, not apply to material or information, (a) which is generally available or otherwise public; (b) which the receiving Party has received from a third party without any obligation of confidentiality; (c) 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; (d) which the receiving Party has independently developed without using material or information received from the other Party; or (e) which the receiving Party is required to disclose due to law or regulation by the authorities.

Each Party shall promptly upon termination of the Agreement or when the Party no longer needs the material or information in question for the purposes of the Agreement, cease using confidential material and information received from the other Party and upon request return or destroy the material including all copies thereof in a reliable manner. Each Party shall, however, be entitled to retain such material as is required by law or regulation by the authorities.

Each Party shall be entitled to use the professional skills and experience acquired in connection with the Agreement.

The rights and responsibilities under this section confidentiality shall survive the termination, expiration or cancellation of the Agreement. Except for the Software, these rights and obligations shall expire after 5 years from the termination, expiration or cancellation of the Agreement.

 

17. Limitations of Liability In respect of any project performed under the Agreement, the accumulated liability of the Supplier shall not exceed 50% of payments made by the Customer for the respective project.

The accumulated liability of the Licensor during any Subscription Period towards the Licensee based on the Subscription shall not exceed 25% of payments made by the Licensee for the respective Subscription or services which caused the liability during the respective Subscription Period. Further, the total liability of the Licensor shall not exceed 15% of payments made by the Licensee under the Agreement or 25% of all the payments made by the Licensee during any contract year.

The Parties shall not be liable for any indirect, incidental, special or consequential damage or loss of profits or cover purchase or for the loss or alteration of the data.

The limitations of liability shall not apply to damages caused by (i) the transfer, copying or use of Software contrary to law or the Agreement, or (ii) a breach of the export regulations or (iii) infringement of intellectual property rights or breach of confidentiality obligations.

 

18. Subcontracting Each Party may use subcontractors in due observance of the confidentiality provisions herein. The subcontracting party shall remain responsible – as for one’s own – for the work performed by the subcontractor and for the results thereof.

 

19. Force Majeure Neither party shall be liable for delay and damage caused by an impediment beyond the Party’s control and which the Party could not have reasonably taken into account at the time of conclusion of the Agreement and whose consequences the Party could not reasonably have avoided or overcome. Such force majeure events shall include war or insurrection, earthquake, flood or other similar natural catastrophe, interruptions in general traffic, data communication or supply of electricity, import or export embargo, strike, lockout, boycott or other similar industrial action. A strike, lockout, boycott and other similar industrial action shall also be considered a force

majeure event when the party concerned is the target or a party to such an action.

A force majeure event suffered by a subcontractor of a Party shall also be considered a force majeure event in relation to the Party 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.

If any such circumstance continues for more than three (3) months preventing the fulfilment of the Agreement, either party shall be entitled to terminate the Agreement to the extent considered reasonable.

Each Party shall without delay inform the other Party in writing of a force majeure event and the termination of the force majeure event.

 

20. Reference The Supplier is entitled to use the Customer as public reference related to the Software and services of the Agreement.

 

21. Export Regulations The Licensee agrees to comply with the laws and regulations applicable to the export of Software and technical information, and also otherwise not to provide Software or technical information or access thereto to any party, if such delivery to such party violates or may violate directly or indirectly the export laws and regulations.

 

22. Governing Law and Jurisdiction The Agreement is governed by the substantive laws of Finland.

All disputes between the Parties will be intended to be resolved in mutual negotiations. If no amicable settlement is reached, any dispute, controversy or claim arising out of or relating to the 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 by one arbitrator. The place of arbitration will be Helsinki and the language of proceedings shall be English.

In lieu of arbitration, the Licensor is entitled to collect due receivables in the district court of Espoo or that of defendant’s domicile.

 

23. Assignment of the Agreement Neither party may assign the Agreement without the written consent of the other Party. However, the Licensor may assign the Agreement in connection with the transfer of business operations, subject to written notice by the Licensor to the Licensee.

 

24. Changes and amendments to the Agreement All changes and amendments to the Agreement shall be agreed in writing in order to be valid.

 

25. Severability Should any provision of the Agreement be declared unenforceable by a court of competent jurisdiction, the remaining provisions of the Agreement will remain in full force and effect to the fullest extent permitted by law. The parties shall in good faith replace the unenforceable provision with such provisions that correspond as closely as possible to the original intention of the Parties.

 

26. Entire Agreement The Agreement and any documents expressly incorporated hereby constitute the sole and entire binding contract and supersede all other proposals, agreements, statements, representations or warranties made by or between the Parties relating to the subject matter hereof.

 

27. Waiver A waiver of breach or default under the Agreement shall not be a waiver of any subsequent default.  Failure of either Party to enforce compliance with any term or condition of the Agreement shall not constitute a waiver of such term or condition.

 

28. Term The Agreement becomes valid and effective upon signature by both Parties unless other effective date has been agreed upon and shall remain valid until the end of the initial Subscription Period (or contract year) and will thereafter renew automatically at the end of each Subscription Period for another one year Subscription Period(s), unless otherwise agreed or terminated by either Party by written notice to the other Party at least three (3) months prior to the annual renewal date of the Subscription.

The Subscription Period is one year and it commences upon the production use of the Software unless otherwise agreed. Cloud services commence upon installation of the Software to the Supplier’s cloud environment. Initial period of Cloud services ends on the anniversary of the Subscription and thereafter term of Cloud services is the same as Subscription Period.

 

29. Termination A Party shall be entitled to terminate the Agreement if the other Party materially breaches of the terms of the Agreement and the breach is of substantial importance to the non-breaching Party. If the breach is capable of being remedied, the Agreement may be terminated only if the Party in breach has not rectified its breach within a reasonable period of time set by the other Party in writing, such period to be at least 30 days. Instead of termination of the Agreement due to the breach by the Licensee, the Licensor may also suspend the licensee’s rights and/or Licensor’s services and other duties under the Agreement.

Either Party may terminate the Agreement also by written notice to the other Party due to state of bankruptcy, liquidation, debt restructuring, or general inability to pay debts.

 

30. Non-Solicitation If either Party, during the period of validity of the Agreement or during a period of six (6) months following its expiration or expiration of employment in question, whichever first occurs, hires an employee of the other Party who has been involved in the preparation or performance of the Agreement, or enter into any other agreement or otherwise agree on such arrangement, whose purpose is to obtain the work contribution of the person in question, such a Party shall pay penalties to the other Party equivalent to the six (6) months’ pay of such an employee.