These General Terms are applicable to the Agreement between the Customer and the Company and set out the terms under which the Company shall provide the Cloud Services to the Customer.
The Customer enters into the Agreement with the Company by filling out the relevant form located at the Company’s Web Site and by accepting these General Terms and any other terms applicable to the Agreement, as appropriate.
The use of the Cloud Services is at all times subject to the Agreement.
The service descriptions setting out the functionalities and features of the Cloud Services have been set out at the Company’s Web Site. The Company shall provide the Cloud Services to the Customer substantially as set out at the Company’s Web Site and as set out in the Agreement.
The scope of the Cloud Services is not fixed, but may vary depending on which Cloud Services the Customer chooses to order from time to time, selected from the standard Cloud Services made available by the Company.
The Customer may, from time to time, order Cloud Services from the Company subject to the following:
Orders may be made by the Customer expressly at the Company’s Web Site or automatically by using APIs of the Cloud Services;
The Customer shall be responsible for any orders made under the Customer’s account, whether by the Customer itself, by its authorized users, or by the Customer’s data systems automatically, and shall be responsible for the payment of all Fees based on orders made under the Customer’s account;
No order made by the Customer is valid until accepted by the Company. The Company shall be deemed to have accepted the order if it supplies the Cloud Services to the Customer. The Company reserves the right to place controls and restrict the Customer’s orders of the Cloud Services;
After having accepted the order, the Company shall provide the Cloud Services to the Customer without undue delay after the Customer’s order.
The Company reserves the right to make changes to the Cloud Services at any time. If a change made by the Company has an adverse effect on the agreed contents of the Cloud Services or the agreed service levels, the Company shall inform the Customer of such change at least thirty (30) days before the effective date of the change. In such a case the Customer shall have the right to terminate the Agreement subject to thirty (30) days’ prior written notice. The termination notice must be delivered to the Company in writing prior to the effective date of the change.
The Company shall always have the right but shall have no obligation to make such changes to the Cloud Services that (a) concern or relate to the production environment of the Cloud Services and do not have an adverse effect on the agreed contents of the Cloud Services or the agreed service levels, (b) are necessary to prevent any data security risk to the Cloud Services, or (c) result from law or from an administrative order.
The Customer shall not have the right to terminate the Agreement as described in Section 2.4 if the change is based on reasons set forth above in Section 2.5.
Unless expressly set out to the contrary, the Cloud Services are not subject to any particular service levels, and are provided to the Customer strictly on an “as is” and “as available” basis, and the Company makes no representation or does not warrant the availability of the Cloud Services at any particular time. Any applicable service levels have been set out at the Web Site, and are only applicable to the individual Cloud Service, as set out. Any compensation set out in connection with such service levels shall be the Customer’s sole remedy and the Company’s sole liability as regards any non-compliance with such service levels, and such non-compliance shall not constitute a breach of the Agreement.
All facilities used to store and process the Customer’s data will adhere to reasonable security standards no less protective than the security standards at facilities where the Company (or its subcontractor as relevant) processes and stores its own information of a similar type.
Intellectual Property Rights
All rights, title and interest, including all Intellectual Property Rights in and to the Cloud Services and any changes thereto shall belong exclusively to the Company or its licensors. Except for the express license to use the Cloud Services granted to the Customer under and in accordance with the terms and conditions of the Agreement, the Customer shall have no and shall not by virtue of the Agreement obtain any rights, license or interests in and to the Cloud Services or any Intellectual Property Rights pertaining thereto.
The Customer shall have a limited non-exclusive, non-transferable, non-sublicensable right to use the Cloud Services during the term of the Agreement.
The Customer shall be solely responsible for its use of the Cloud Services including any breach of the Agreement by the Customer or any of its authorized users.
The Company agrees to defend the Customer, at the Company’s own expense, against any third party claims or actions where a third party claims that the Cloud Services infringe upon Intellectual Property Rights of a third party valid in the European Economic Area (EEA), provided that the Customer:
notifies the Company of such claim immediately upon receipt of notice thereof;
provides the Company, free of charge, with all available information, permissions and assistance;
grants the Company the sole and exclusive right to control the defense of the claim; and
does not agree on any settlement of such claim or action prior to a final judgment thereon by a competent court of law or court of arbitration, without the express prior written consent of the Company.
If the Customer has acted in accordance with Sections 4.1.1 to 4.1.4, the Company shall pay any damages finally awarded to the third party claimant by a competent court of law or court of arbitration.
If the Company justifiably deems that the Cloud Services infringe or may infringe upon any third party rights, the Company shall have the right, at its own expense and in its sole discretion, to (a) acquire for the Customer the right to continue the use of the Cloud Services; or (b) replace the Cloud Services; or (c) modify the Cloud Services to the extent necessary to avoid the infringement.
If none of the alternatives defined in Section 4.3 are available to the Company on commercially reasonable terms and/or without the significant loss of time, the Company shall have the right to terminate the Agreement in whole or in part subject to a notice period set by the Company, upon which the Customer agrees to cease using the Cloud Services and the Company agrees to reimburse the Fees paid by the Customer for the terminated Cloud Services, less a proportion equal to the time of use of the Cloud Services by the Customer.
The indemnity in this Section 4 shall not apply to, and the Company is not liable for any claim that (a) is based on a claim by any Customer Affiliate; or (b) 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 (c) 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; (d) arises or results from the use of the Cloud Services in combination with any software, equipment or products not developed or supplied by the Company or which are contrary to instructions given by the Company; or (e) could have been avoided by using the latest version of the Cloud Services made available by the Company to the Customer.
This Section 4 sets out the entire liability of the Company and the Customer’s sole remedy in case of any infringement of any Intellectual Property Rights.
The Customer agrees to indemnify the Company, at the Customer’s own expense, against any claims made towards the Company based on any information or data the Customer inputs to the Cloud Services, including without limitation claims that the Customer’s data infringes third party intellectual property rights or that the data otherwise infringes applicable laws.
The Customer shall be responsible for paying any Fees properly due in accordance with the invoices sent by the Company.
The Customer shall be responsible for its own devices, systems, applications, connections and software used to access the Cloud Services.
The Customer shall be responsible for the protection of customer’s data communications and data systems and costs for communications and other comparable costs related to use of the Cloud Services.
The Customer may authorize users to use the Cloud Services under the Customer’s account (e.g. for the purposes of using the Customer’s databases). The Customer shall ensure that any users it authorizes to use the Cloud Services under the Customer’s account comply with the Agreement at all times and use the Cloud Services only in accordance with the Agreement. The Customer shall be responsible for any use of the Cloud Services under the Customer’s account.
The Customer shall be responsible for ensuring that its authorized users maintain their user names and passwords diligently and do not disclose them to third parties. The Customer undertakes to inform the Company 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’s liability for the misuse of the Cloud Services by the use of the user name or password of its user shall expire when the Company has received the Customer’s written and sufficiently detailed notice thereof.
The Customer shall change the password required for the use of the Cloud Services upon written request of the Company if necessary due to data security risk to the Cloud Services.
Personal Data and Customer Data
To the extent the Customer inputs any personal data in to the Cloud Services, the Company (or its subcontractor where appropriate) processes such data on behalf and for the benefit of the Customer while the Customer remains at all times the data controller for such personal data. The Company processes the personal data submitted by the Customer to the Company in accordance with the Customer’s instructions and applicable data protection legislation.
The Company implements appropriate technical and organizational measures to secure the Customer’s personal data; such measures include implementing reasonable and sufficient confidentiality obligations.
The Company shall assist the Customer in complying with its obligations under applicable data protection laws, including assisting in responding to requests by data subjects and supervisory authorities to the extent reasonably necessary. The Company shall notify the Customer of any data breaches concerning personal data. The Company shall be entitled to charge for any reasonable costs and expenses incurred as a result of such assistance.
The Company shall make available to the Customer information reasonably necessary to demonstrate compliance with the applicable data protection laws and contribute to audits conducted by the Customer or its representative in relation to the processing of personal data by the Company. The Company shall be entitled to charge for any reasonable costs and expenses incurred to Company.
The Company provides information on where its subcontractors’ servers are located at the Company’s Web Site. When choosing a subcontractor to provide the hosting for the Cloud Services from the options provided by the Company, the Customer shall be solely responsible for ensuring that it has the right to transfer personal data to the countries where the hosting partner’s servers are located, including in particular transfers outside the European Economic Area. The Customer represents and warrants that it has obtained the necessary permits, authorizations and consent to let the Company process personal data in context of the Cloud Services as set out in this Agreement.
The Customer understands, accepts and consents to that the Customer’s data may be provided to the Company’s subcontractors for the purposes of providing the Cloud Services and for securing and improving their services as well as other purposes set out in this Agreement. The Company shall reasonably ensure that such subcontractors are subject to equivalent requirements regarding confidentiality and data protection, as those set out in this Agreement.
The Customer is solely responsible for making appropriate backups of its data, and the Company or its subcontractors shall in no way be liable for any deletion of or failure to store any data of the Customer or other communications maintained or transmitted to the use of the Cloud Services.
Acceptable Use Policy
The Customer shall use, and shall ensure that its authorized users use the Cloud Services in accordance with the following acceptable use policy. The Customer is solely responsible for ensuring that the Cloud Services are not used:
to violate, or encourage the violation of, the legal rights (including without limitation Intellectual Property Rights) of others;
to engage in, promote or encourage any illegal activity;
for any unlawful, invasive, infringing, defamatory, offensive, harmful or fraudulent purpose (for example, this may include phishing, creating a pyramid scheme or mirroring a website);
to intentionally distribute viruses, worms, Trojan horses, corrupted files, hoaxes, or other items of a destructive or deceptive nature;
to violate security or integrity of any network, computer or communications system, software application or network or computing device (such violations to include without limitation unauthorized access, interception of data or traffic or falsification of origin);
to make connections to any users, hosts or networks unless the Customer has permission to communicate with them (such network abuses to include without limitation monitoring or crawling, denial of service attacks, intentional interference, operating open proxies, open mail relays or open recursive domain name servers, or to avoiding system restrictions);
to interfere with the use of the Cloud Services, or the equipment used to provide the Cloud Services, by others;
to disable, interfere with or circumvent any aspect of the Cloud Services;
to generate, distribute, publish or facilitate unsolicited mass email, promotions, advertisings or other solicitations (“spam”), including alteration or obscuring mail headers or assuming sender’s identities, collecting replies to messages sent from a third party provider if such messages would violate the policies set out herein or comparable policies of such third party; or
to use the Cloud Services, or any interfaces provided with the Cloud Services, to access any other product or service of the Company or its subcontractors in a manner that violates their applicable terms of service.
The Company (and its subcontractors where appropriate) reserve the right but assume no obligation to review the Customer’s use of the Cloud Services, including the Customer’s data to ensure compliance with the acceptable use policy and to discontinue any use by the Customer of the Cloud Services and removing any infringing data of the Customer. The Company (and its subcontractors where appropriate) may report suspected infringing activities to officials, regulators or other appropriate third parties, including the disclosure of appropriate information regarding the Customer.
If the Customer becomes aware that its use of the Cloud Services infringes the policy set out herein, the Customer agrees to immediately cease the infringing use of the Cloud Services without separate notice. The Customer agrees to comply with any requests of the Company as regards to the ceasing of any use of the Cloud Services that infringes the policies set out herein.
Suspension and Discontinuation of Service
The Company shall have the right to suspend the provision of the Cloud Services for a reasonable period of time if this is necessary in order to perform installation, change or maintenance work in respect of the Cloud Services or if such suspension results from installation, change or maintenance work in respect of public communication networks.
The Company shall also have the right to suspend the provision of the Cloud Services and/or deny the Customer’s access to the Cloud Services without first hearing the Customer due to a data security risk to the Cloud Services or if law or administrative order requires the Company to do so or if the Company becomes aware of or reasonably suspects any activities of the Customer or its authorized users that infringe on the policies set out in Section 7 above or if the Cloud Services are used contrary to, or for a purpose prohibited by the Agreement, applicable laws or administrative orders or in a manner that jeopardizes the provision of the Cloud Services to other users .
The Company shall always have the right to suspend the Cloud Services, if the Customer is in default with its payment of the Fees due under the Agreement and does not pay such Fees despite a request to pay within fourteen (14) days calculated from the date of such request. The suspension can be continued until the Customer has paid all Fees due under the Agreement.
The Customer understands that the Cloud Services are hosted by a subcontractor of the Company chosen by the Customer from the options provided by the Company. Such subcontractors may reserve rights to discontinue their hosting at any time. The Company shall not be liable in any way for any discontinuation of such services provided by subcontractors.
The rates applicable for the Cloud Services may be reviewed at the Company’s Web Site. Actual Fees for Cloud Services will vary depending on the Customer’s use of the Cloud Services.
The Company uses a credit card processing service provided by Stripe Payments Europe, Ltd. (https://stripe.com/) (“ Stripe”) to process its payments. The Customer consents to the use of the Stripe service and to the transfer of its credit card details (including any personal data contained therein) to Stripe. The Customer is familiar and agrees to be bound by any third party terms applicable to the Stripe service.
The Fees for the use of the Cloud Services shall be invoiced monthly in arrears based on the Customer’s use of the Cloud Services. Unless separately agreed to the contrary, no separate invoice is sent to the Customer, but all Fees are automatically charged from the Customer by using the Stripe service set out in Section 9.2 above.
The Company reserves the right to increase the rates applicable to the Cloud Services where this is justified due to the general increase of the Company’s costs and expenses of production (such as but not limited to general increase of labor costs and expenses), or in the case of increase of costs of third party offerings. The Company shall inform the Customer of such change at least thirty (30) days before the effective date of the change. In such a case the Customer shall have the right to terminate the Agreement subject to thirty (30) days’ prior written notice. The termination notice must be delivered to the Company in writing prior to the effective date of the change.
All rates and Fees are set out without value added tax (VAT) or any other applicable sales tax, which shall be added to the rates and Fees in accordance with the then-applicable tax laws and regulations.
In case a separate invoice is sent, the term of payment of each invoice shall be fourteen (14) days net from the date of the invoice.
Interest on any amounts overdue shall accrue in accordance with the applicable Finnish Interest Act (Korkolaki 1982/633, as amended).
Each Party shall keep in confidence all material and information received from the other Party and marked as confidential or which should be understood to be confidential (“Confidential Information”), and may not use such Confidential Information for any other purpose than those set forth in the Agreement. The confidentiality obligation shall, however, not apply to material and information, (a) which is or later becomes generally available or otherwise public; or (b) which the receiving Party has received from a third party without any obligation of confidentiality; or (c) which was rightfully in the possession of the receiving Party prior to receipt of the same from the disclosing Party without any obligation of confidentiality related thereto; (d) which a Party has independently developed without any use of or reference to the Confidential Information received from the other Party; or (e) which a Party is required to disclose under any mandatory law or by order of a court or governmental body of competent jurisdiction.
Each Party shall promptly upon termination of the Agreement, or when the Party no longer needs the Confidential Information in question for the purpose of performing its obligations or exercising its rights under the Agreement, cease using the Confidential Information received from the other Party and, unless the Parties separately agree on destruction of such Confidential Information, return the Confidential Information in question (including all copies and reproductions thereof) to the other Party. Each Party shall, however, be entitled to retain the copies required by law or administrative orders applicable to such Party.
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.
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.
Limitation of Liability
The total aggregate liability of a Party towards the other Party under the Agreement shall not exceed (i) an amount corresponding the average monthly fee of the six (6) months preceding the event giving rise to the liability multiplied by six (6), or (ii) fifty thousand (50.000) Euro, whichever is less.
A Party shall not be liable for any indirect, incidental, or consequential damages such as loss of profits, revenue or business, damages caused due to decrease in turnover or production or loss, alteration, destruction or corruption of data.
The limitations of liability shall not apply to damages caused by willful misconduct or gross negligence or to liability under Section 4 (Indemnification) or Section 10 (Confidentiality).
Term and Termination
The Agreement shall enter into force after the Customer has performed the actions set out in Section 1.2.
The Agreement shall remain in force until terminated by a Party by a two (2) months’ written notice to the other Party. For the avoidance of doubt, the Customer shall have the right to terminate individual Cloud Services at any time.
Each Party may terminate the Agreement for cause (in Finnish: “ purkaa”) with immediate effect upon written notice to the other Party if:
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
the other Party is in material breach of the terms and conditions of the 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.
Upon the termination of the Agreement for any reason, any Fees owed by the Customer for any use of the Cloud Services until the effective date of the termination shall become immediately due.
After the termination of the Agreement for any reason, the Company shall retain the Customer’s data for thirty (30) days and make it available to the Customer via the Cloud Services. After the thirty (30) days’ period, the Company shall have the right to destroy the Customer’s data from the Cloud Services.
Governing Law and Disputes
The Agreement shall be governed by and construed in accordance with the substantive laws of Finland, excluding its choice of law provisions.
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. The seat of arbitration shall be Helsinki, Finland. The language of the arbitration shall be English.
Notwithstanding anything set out in Section 13.2 above, the Company shall have the right to claim unpaid Fees in a public court.
The Company shall be free to use subcontractors in the performance of its obligations and exercise of its rights under the Agreement. The Company shall be liable for the acts and omissions of its subcontractors under the Agreement as for its own.
The Company shall have the right to use its relationship with the Customer in its marketing and sales promotion activities.
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 at the time of entering into the Agreement, and whose consequences it could not reasonably have avoided or overcome. For instance, errors in public communication networks or electricity supply shall constitute such an impediment. 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, 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. Each Party shall without delay inform the other party in writing of a force majeure event and the termination of the force majeure event.
All formal notices and other formal communication between the Parties hereunder shall be made in the English language.
Neither Party shall be entitled to assign nor transfer all or any of its rights, benefits and obligations under the Agreement without the prior written consent of the other Party, which consent shall not be unreasonably withheld or delayed. The Company shall, however have the right to assign the Agreement in connection with a sale or transfer of its business or a relevant part thereof.
The Company shall have the right to update the General Terms at its sole discretion. The Company shall notify the Customer of such update at least thirty (30) days in advance. Should the Customer not accept the updated General Terms, the Customer shall have the right to terminate the Agreement by a written notice to the Company, effective as of the effective date of the new General Terms.
Any terms and conditions that by their nature or otherwise reasonably should survive a cancellation or termination of the Agreement shall also be deemed to survive.
“Affiliate” of a Party means any legal entity that is (a) directly or indirectly owning or controlling the Party, or (b) under the same direct or indirect ownership or control as the Party, or (c) 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;
“Agreement” shall mean the agreement between the Company and the Customer, consisting of these General Terms and any other terms applicable to the Cloud Services;
“Cloud Service(s)” shall mean the cloud based PAAS services provided by the Company to the Customer, as set out in the Agreement;
“Company” shall mean Aiven Ltd (Business ID 2795743-5), a company duly registered under the laws of Finland, having its principal place of business at Kalevankatu 30, 00100 Helsinki Finland;
“Confidential Information” shall have the meaning set out in Section 10.1;
“Customer” shall mean the company entering into the Agreement with the Company;
“General Terms” shall mean these General Terms and Conditions 2017;
“Intellectual Property Rights” shall mean any and all patents, utility models, design rights, copyrights (including the right to amend, modify, develop and assign), trademarks, trade names, inventions, trade secrets, domain names, know-how and any other industrial or intellectual property rights (including applications thereof);
“Parties” and “Party” shall mean the Company and the Customer jointly and separately;
“Fee(s)” means the compensation paid by the Customer for the license to use the Cloud Services;
“Stripe” shall have the meaning set out in Section 9.2; and
“Web Site” shall mean the Company’s web site located at https://aiven.io/.