Effective date: 1 November, 2016
1. Valossa Service.
1.1 Valossa Software as a Service
These ‘Software as a Service’ General Terms and Conditions (“the Agreement”) apply to your use of services, software, applications, APIs and documentations (collectively, the “Service”) which Valossa Labs Ltd registered in Finland (“Valossa”) will provide to you in relation to the Service. By using the Service, you accept and agree to be bound by these General Terms and Conditions. Please read and review this Agreement carefully before accessing or using the Service to ensure that you understand each provision.
Subject to all limitations and restrictions contained herein, Valossa grants you a non-exclusive and non-transferable subscription right to access and operate the Software (and use its Documentation) as hosted by Valossa and solely to perform those functions described in the Documentation. For clarity, a “Software” means Valossa’s proprietary software including Valossa Core API, other Valossa APIs and applications that is specifically licensed to you from time to time.
The Software may contain open source Software and/or code written by third parties. Such software will have its own individual license terms and conditions. As regards use of open source Software or any other third party license under this Agreement, you shall observe and strictly comply with the licensing terms and conditions of such open source Software and any third party licenses. Thus, you shall assume and undertake the same rights, duties and liabilities related to open source Software and third party licenses as Valossa has undertaken towards any third party license.
You shall have a limited right and license to use the Software solely for its internal business purposes, to perform the functions described in the Documentation. You shall not allow any website that is not fully owned by you to frame, syndicate, distribute, replicate, or copy any portion of your web site that provides direct or indirect access to the Software. Unless otherwise expressly permitted in writing you shall not permit any subsidiaries, affiliated companies, or third parties to access the Software.
In no event shall you disassemble, decompile, or reverse engineer the Software or Confidential Information (as defined herein) or permit others to do so. Disassembling, decompiling, and reverse engineering include, without limitation: (i) converting the Software from a machine-readable form into a human-readable form; (ii) disassembling or decompiling the Software by using any means or methods to translate machine-dependent or machine-independent object code into the original human-readable source code or any approximation thereof; (iii) examining the machine-readable object code that controls the Software’s operation and creating the original source code or any approximation thereof by, for example, studying the Software’s behavior in response to a variety of inputs; or (iv) performing any other activity related to the Software that could be construed to be reverse engineering, disassembling, or decompiling. To the extent any such activity may be permitted pursuant to written agreement, the results thereof shall be deemed Confidential Information subject to the requirements of these General Terms and Conditions. You may use Valossa’s Confidential Information solely in connection with the Software and pursuant to the terms of these General Terms and Conditions.
Evaluation of Software:
The license may be granted also for evaluation purposes and such license is only valid for the term defined separately in writing. You may only use the Software for your internal evaluation of the Software solely for making the decision whether to purchase a Software.
Notwithstanding anything to the contrary contained herein, except for the limited license rights expressly provided herein, Valossa have and will retain all rights, title and interest in and to the Software (including, without limitation, all patent, copyright, trademark, trade secret and other intellectual property rights), all copies, modifications and derivative works thereof. Valossa will retain all rights to data, metadata, scripts, algorithms, keywords or any data created by the Service (collectively, the “Valossa Data”).You can integrate Valossa Data to your own products and applications, create custom plugins to your existing system and use Valossa applications. You shall not or permit anyone to sell, license, distribute, assign or otherwise transfer Valossa Data as such, in whole or in part, modified or unmodified, to any third party or anyone else. Any use of Valossa Data not specified in this Agreement and in the Documentation is expressly prohibited. Valossa Data is not redeemable for any sum of money or monetary value from Valossa at any time. You acknowledge that it is obtaining only a limited license right to the Software and that irrespective of any use of the words “purchase”, “sale” or like terms hereunder no ownership rights are being conveyed to you under this Agreement or otherwise. All modifications, upgrades, and enhancements, including, without limitation, any your suggestions for new features or functionality of the Service, are the property of Valossa.
User Materials and Content:
You retain all right, title, and interest in and to any software, hardware, data, tools, techniques, or other materials that you provide to Valossa in connection with the Service (“User Materials”). You represent and warrant that you will not use the Service in any manner which violates any third party’s rights. You agree not to submit User Materials or Content that are illegal or may create a risk of loss or damage to Valossa or any other party. By transmitting or allowing the transmission of any Content via the Service (if applicable), you grant Valossa the royalty-free, irrevocable, nonexclusive, worldwide license to transmit and display such Content in whole or in part via the Service for the duration of the Service. “Content” means the content of any website, email messages, or other materials produced, provided to Valossa and/or used by you in conjunction with the Service.
License to User Data:
As between Valossa and you, you own all right, title, and interest in and to any data (such as videos, images, audio files) that you upload, store and share or otherwise provide to Valossa and any data that Valossa collects and stores on behalf of you in providing the Service (the “User Data”). User Data you create remains yours. Valossa claim no ownership over User Data created by you. You grant Valossa a worldwide, royalty-free, perpetual, sublicensable, irrevocable, nonexclusive, nontransferable license to: (i) capture, maintain, observe, study and process the User Data in connection with Valossa’s provision of Service to you; and (ii) compile aggregated statistics for internal, marketing use (provided that no such use shall include any information that can identify you or any of its end users) and use User Data for the purposes of developing the Services and the Software. Except when expressly agreed otherwise in writing, Valossa shall store the User Data uploaded to the Service as long as Valossa deems necessary. Except when expressly agreed otherwise in writing, Valossa shall not sell, license, distribute, assign or otherwise transfer User Data, in whole or in part, to any third party or anyone else. However, Valossa retains the right to transfer the data to third-party partners in the context of providing the Service.
Suggestions and Improvements to Software;
Notwithstanding this Section, unless otherwise expressly agreed in writing, all suggestions, solutions, improvements, corrections, and other contributions provided by you regarding the Software provided to you shall be owned by Valossa, and you hereby agree to assign any such rights to Valossa. Nothing in these General Terms and Conditions shall preclude Valossa from using in any manner or for any purpose it deems necessary, the know-how, techniques, or procedures acquired or used by Valossa in the performance of Service hereunder.
Payment amounts and timing are as set forth separately in writing.
The license, service fees, and other amounts required to be paid hereunder do not include any amount for taxes or levy (including interest and penalties). You shall reimburse Valossa and hold Valossa harmless for all sales, use, VAT, excise, property or other taxes or levies which Valossa is required to collect or remit to applicable tax authorities. This provision does not apply to Valossa’s income taxes.
4. Term of Agreement.
4.1 Subscription Term.
You may use the Service pursuant to these General Terms and Conditions until these General Terms and Conditions terminate as provided herein (the “Term”). Either party may terminate this Agreement if the other party: (a) fails to cure any material breach of this Agreement within 30 days after written notice of such breach; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding, or if any such proceeding is instituted against such party (and not dismissed within 60 days thereafter)). Termination is not an exclusive remedy and the exercise by either party of any remedy under this Agreement will be without prejudice to any other remedies it may have under this Agreement, by law, or otherwise.
Upon any expiration or termination of this Agreement, you shall cease any and all use of any Software and destroy all copies thereof and so certify to Valossa in writing.
Sections 1.1 (Valossa Software as a Service, subsection Use), 2 (Ownership), 3 (Payment), 4 (Term of Agreement), 5.3 (Disclaimer of Warranties), 8 (Limitation of Remedies and Damages), 10 (Confidential Information), 12 (Information Security) and 13 (General) shall survive any termination or expiration of this Agreement.
5. Limited Warranty and Disclaimer.
5.1 Limited Warranty.
Valossa does not warrant that your use of the Service will be uninterrupted or error-free or that any security mechanisms implemented by the Software will not have inherent limitations. Valossa’s sole liability (and your exclusive remedy) for any breach of this warranty shall be, in Valossa’s sole discretion, to use commercially reasonable efforts to provide you with an error-corrected Software within reasonable time.
THIS SECTION 5 IS A LIMITED WARRANTY AND EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 5 THE SOFTWARE AND ALL SERVICES ARE PROVIDED “AS IS”. VALOSSA DOES NOT WARRANT THAT THE SOFTWARE WILL FIND ALL THE INFORMATION SECURITY VULNERABILITIES OR FLAWS OF ANY SOFTWARE TO BE TESTED. NEITHER VALOSSA NOR ITS SUPPLIERS MAKES ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT.
6. Professional Services.
If separately agreed in writing, Valossa shall be responsible for the performance of any professional consulting services (“Professional Services”). All Professional Services will be performed at Valossa’s standard time and materials rates.
7. Limitation of Remedies and Damages.
7.1 NEITHER PARTY SHALL BE LIABLE FOR ANY LOSS OF USE, LOST DATA, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
7.2 NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, VALOSSA’S AND ITS SUPPLIERS’ ENTIRE LIABILITY TO YOU SHALL NOT EXCEED 15% OF THE AMOUNT ACTUALLY PAID BY YOU TO VALOSSA UNDER THIS AGREEMENT.
7.3 THIS SECTION 8 SHALL NOT APPLY TO YOU WITH RESPECT TO ANY CLAIM ARISING UNDER THE SECTIONS TITLED “GRANT OF LICENSE,” “LICENSE RESTRICTIONS” “INFORMATION SECURITY” OR “CONFIDENTIAL INFORMATION”.
7.4 The parties agree that the limitations specified in this Section 8 will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.
Valossa shall indemnify and hold harmless you from and against any claim of infringement of a patent, copyright, or trademark that is registered in a country where the Software is licensed for use, and which is asserted against you by a third party based upon your use of the Software in accordance with the terms of this Agreement; provided that Valossa shall have received from you: (i) prompt notice of such claim (but in any event notice in sufficient time for Valossa to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense, and settlement (if applicable) of such claim; and (iii) all reasonable necessary cooperation of you. If your use of any of the Software is, or in Valossa’s opinion is likely to be, enjoined due to the type of infringement specified above, or if required by settlement, Valossa may, in its sole discretion: (a) substitute for the Software substantially functionally similar service; (b) procure for you the right to continue using the Software; or if (a) and (b) are commercially impracticable, (c) terminate the Agreement and refund to you the license fee paid by you during last six months. THIS SECTION 9 SETS FORTH VALOSSA’S AND IT’S SUPPLIERS’ SOLE LIABILITY AND YOUR SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT.
9. Confidential Information.
Each party agrees that all code, inventions, know-how, business, technical and financial information it obtains (“Receiving Party”) from the disclosing party (“Disclosing Party”) constitute the confidential property of the Disclosing Party (“Confidential Information”), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be Confidential Information due to the nature of the information disclosed and the circumstances surrounding the disclosure. Any software, documentation or technical information provided by Valossa (or its agents), performance information relating to the Software, and the terms of this Agreement shall be deemed Confidential Information of Valossa without any marking or further designation. The fact that you are a customer of Valossa shall not be Confidential Information. Except as expressly authorized herein, the Receiving Party will hold in confidence and not use or disclose any Confidential Information. The Receiving Party’s nondisclosure obligation shall not apply to information which the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; (iv) is independently developed by employees of the Receiving Party who had no access to such information; or (v) is required to be disclosed pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and with advance notice to the Disclosing Party). The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party shall be entitled to appropriate equitable relief in addition to whatever other remedies it might have at law.
10.1 Your Acknowledgement. You agree that Valossa may disclose you as a customer of Valossa.
11. Information security
You shall be obliged to keep the login names, the passwords, API keys and any other kinds of access tokens required for the use of the Service confidential, to keep it in a safe place, and to protect it against unauthorized access by third parties with appropriate precautions, and to instruct the users to observe copyright regulations. Personal access data must be changed at regular intervals.
Before entering its data and information, you shall be obliged to check the same for viruses or other harmful components and to use state of the art anti-virus programs for this purpose. In addition, you itself shall be responsible for the entry and the maintenance of its data.
In the case of serious violations of the duties according to this sub-paragraph on the part of you, Valossa shall be entitled to block access to the Software.
12.1 Assignment. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. You may assign this Agreement with Valossa’s prior written consent, which shall not be unreasonably withheld. Valossa party may assign this Agreement in connection with a merger, reorganization, acquisition or other transfer of all or substantially all of its assets or voting securities. Any attempt to transfer or assign this Agreement without such written consent will be null and void.
12.2 Severability. If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited to the minimum extent necessary so that this Agreement shall otherwise remain in effect.
12.3 Governing Law; Jurisdiction and Venue. This Agreement shall be governed by and constructed in accordance with the laws of Finland. Any dispute, controversy of claim arising out of or relating to this agreement that cannot be otherwise settled, shall be finally settled in arbitration by one (1) Arbitrator in accordance with then Arbitration Rules of the Finnish Chamber of Commerce. The place of arbitration shall be in Helsinki, in the English language. The award shall be binding on the Parties.
12.4 Attorneys’ Fees and Costs. The prevailing party in any action to enforce this Agreement will be entitled to recover its attorneys’ fees and costs in connection with such action.
12.5 Notices and Reports. Any notice or report hereunder shall be in writing to the notice address set forth above and shall be deemed given: (i) upon receipt if by personal delivery; (ii) upon receipt if sent by certified or registered mail (return receipt requested); or (iii) one day after it is sent if by next day delivery by a major commercial delivery service.
12.6 Amendments; Waivers. No supplement, modification, or amendment of this Agreement shall be binding, unless executed in writing by a duly authorized representative of each party to this Agreement. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived. No provision of any purchase order or other business form employed by you will supersede the terms and conditions of this Agreement, and any such document relating to this Agreement shall be for administrative purposes only and shall have no legal effect.
12.7 Entire Agreement. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement.
12.8 Independent Contractors. The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.
12.9 Force Majeure. Neither party shall be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to unforeseen events which occur after the signing of this Agreement and which are beyond the reasonable control of such party, such as a strike, blockade, war, act of terrorism, riot, natural disaster or refusal of a license by a government agency.