1. General
These Terms of Use (“Terms”) and any other documents referred to in these Terms or provided by Roxia (collectively “Agreement”) apply to Roxia Oy’s Malibu™ service (“Service”) which is a customized user interface that collects and sends data from products and processes and thus serves as an online process monitoring, maintenance and analysis tool. Roxia Oy, a Finnish limited liability company with business identity code 0162133-5, having its registered address at Myllykallionkatu 2, FI- 53550 Lappeenranta, Finland (“Roxia”), together with its business partners provides the Service to the customer utilizing the Service (“Customer”). The Customer remains fully liable for its employees and other users to whom an access is granted to the Service on behalf of the Customer. The Customer and Roxia are hereinafter jointly referred to as the “Parties” and individually as the “Party”. In case of discrepancies between these Terms and other Agreement documents, these Terms shall prevail, unless otherwise expressly indicated.
2. Service
The Service is heavily dependent on Customer’s own actions at the Service. Content is uploaded, created, modified and shared at the Service by the Customer or its devices. For this reason, the Customer uses the Service at its own risk, and remains fully liable for its own actions and omissions and for the necessary permissions regarding Customer’s data uploaded, created, modified or shared at the Service. The Customer is liable that any information created or stored at the Service or provided to Roxia is accurate, complete and updated. Certain features such as data import or bulk upload may require technical validation or may be subject to volume limitations depending on system performance constraints.
The Customer’s use of and access to the Service is always subject to a valid Agreement and compliance with applicable mandatory laws. The Customer is entitled to use the Service solely for the purpose of and subject to the Agreement in the Customer’s own business use. The Customer shall not, either directly or indirectly, sell or otherwise distribute the information based on or created by the Service to third parties (companies belonging to the same group of companies with the Customer are not treated as third parties), unless mandated by the Customer’s business, or attempt to access any information, data or content not shared to the Customer at the Service. Roxia is not liable for any damage that arise from the Customer’s actions that are illegal or in conflict with the Agreement.
The Customer shall be responsible for its own operational en- vironment (hardware and software), security, required network connections and the compatibility and interoperability of its files, systems or products with the Service. Roxia is not re- sponsible for any services or products provided by the Cus- tomer or third parties.
3. Fees and Payment Term
The Service is subject to fees agreed in the Agreement. In the absence of separate agreement on the fees, the valid price list of Roxia is applicable. If the Parties agree on a free trial period, the fees will be automatically applicable when the trial period expires, unless the Customer decides to terminate the trial period before it ends. All fees are non-refundable.
Unless otherwise agreed, the ongoing subscription fees are invoiced in advance, and time and material based work monthly in arrears. The payment term is 14 days net from the date of invoice. All prices are exclusive of value-added tax and other similar applicable taxes and fees, for which the Customer will be responsible in addition to the Service prices. Roxia re serves the right to increase or decrease the fees upon 30 days prior written notice once per calendar year.
Roxia may charge separately for work that does not fall within the scope of the Service but is ordered by the Customer in writing. These may include modelling Customer’s environment at the Service or creating other Customer-specific content to the Service. Roxia may also charge costs incurred as a result of incorrect information provided by the Customer or other reason for which the Customer is responsible.
Work related to storage expansion, manual data restoration, or data import validation may be invoiced separately.
In the event the Customer fails to make any payment on the due date, Roxia may, without prejudice to any other right of Roxia, (i) postpone the fulfillment of its own obligations under the Agreement until full payment of the amounts due to Roxia; (ii) charge the Customer penalty interest on the amount due for the payment at the annual rate of 12 % accruing on a daily basis until the payment is made; and/or (iii) terminate the Agreement with a written notice to the Customer if the amounts due remain unpaid for a period of 30 days or longer.
4. Support, Maintenance, Updates and Limitations
Basic instructions regarding the use of the Service are available within the Service or upon request from Roxia. Separate technical support and customer support services are available upon request during Roxia Finland’s normal business hours, between 7:00 and 17:00 EET (UTC + 2), and may be subject to additional fees.
Roxia endeavors, with reasonable efforts, to maintain the availability of the Service 24 hours a day and 7 days a week, except for (i) certain separately stated features of the Service (if any), (ii) interruptions caused by security threat, legislation, requirement or regulation by an authority and/or (iii) mainte- nance, test and development breaks, of which Roxia pursues to inform in advance.
However, considering that the Service is dependent upon net- work connections, communication services and other products or services that are provided by third parties and on content created and modified by Customer or its devices, Roxia cannot guarantee the Service is error-free or available without interruptions. If the Customer detects an error in the Service, the Customer is encouraged to inform Roxia thereof, after which Roxia endeavors, with reasonable efforts, to correct the errors without undue delay to the extent such errors are under Roxia’s liability and control.
Roxia may enhance, modify, replace or otherwise change (collectively, “Update”) the Service at its discretion at any time, e.g. using automatic updating technology or otherwise. Roxia will use reasonable business efforts to ensure that the Update will not materially adversely impair the key functions of the Service.
Roxia may limit the access to the Service or completely block it without prior notice in any of the following cases: (i) the ac- tions of the Customer violate applicable laws, the Agreement or other agreements made between the Customer and Roxia; (ii) the Customer ignores Roxia’s request of limiting the load caused to the Service by the Customer; (iii) the Customer causes substantial harm for the normal functioning of the Ser- vice or related server and network infrastructure, (iv) if Roxia justifiably suspects that the Customer uses the Service in a manner that jeopardizes the delivery of the Service to other users; or (v) installation, change or maintenance work of general communications network or due to a severe data security risk related to the Service or if required by law or regulation by authorities or due to a force majeure event.
Roxia may temporarily suspend the Service to prevent system instability, including situations related to storage quota exhaustion, backup integrity concerns, or excessive data ingestion.
Roxia performs disaster recovery backups only. Backups are not designed or guaranteed for customer specific, granular data restoration. Restore attempts will be made on a best effort basis and may incur additional fees.
5. Intellectual Property, Big Data
The Service and all background information and data relating to the Service are sole property of Roxia or third parties, and may be protected by a copyright or another intellectual property right. The Customer shall acquire no rights to the Service other than explicitly described in the Agreement.
The Customer acknowledges that the Service and the underlying software contains business secrets of Roxia or third parties, such as the special design of individual software components, structures, architecture and logics, programming techniques and documentation. Any copying, amending, translation or reverse engineering of the Service or the underlying software is prohibited.
If Roxia has a reason to suspect that the Service infringes third party intellectual property rights, Roxia may, at its own expense and in order to eliminate the infringement, either (i) obtain the necessary rights; (ii) replace the Service with another service; or (iii) modify the Service. If none of the above mentioned alternatives is available to Roxia on reasonable and commercially feasible terms, the Customer will, at Roxia’s request, stop using the Service. Roxia’s liability for third party intellectual property infringements is limited to the above and excludes (i) use of the Service contrary to this Agreement, (ii) changes made by the Customer to the Service, and (iii) claims brought by companies affiliated with the Customer or arising from content uploaded, created, modified or shared by Customer or its devices at the Service.
Any Customer information and/or data stored in the Service is deemed confidential information of the Customer, however Roxia shall have the right to utilize, amend and transfer to third parties the same and all other data acquired or collected by Roxia from the Customer’s use of the Service for analyzing, reporting or similar purposes in anonymized format and provided that no confidential information of the Customer is thereby disclosed.
Roxia may utilize anonymized operational data for analytical, statistical, benchmarking, service improvement, or product development purposes.
6. Usernames, Security
The use of the Service requires username and password, which are created to the Customer upon registering to the Service and which the Customer may then create to its own users of the Service. All usernames and passwords are personal and shall not be transferred or dis- closed to any third parties. The Customer’s user holding administrative status at the Service has wider access rights at the Service than normal users, and also acts as the contact person towards Roxia in respect of the Service. Any suspected misuse of usernames or passwords allocated to the Customer shall be immediately reported to Roxia by the Customer.
Customary information security of the Service is provided by Roxia. However, the use of Service takes place solely at the Customer’s own risk. Roxia does not provide for e-mail or other message encryption or virus detection, and is not responsible for risks inherent in transmitting information via the inter- net or the Service.
Roxia reserves the right to access the Customer’s information and/or data to resolve problems, system errors, or Service-related problems, including for the purposes of troubleshooting, correcting errors, performing restoration tasks, validating or processing data imports, and managing system storage or performance. The Customer is responsible for implementing and maintaining appropriate security measures (such as preventing unauthorized access to its environment, installing firewalls, having appropriate administrative procedures to ensure that access is given to only authorized users) for its operations in accordance with technological developments and evolving security needs.
7. Confidentiality
A Party agrees that all information disclosed by or obtained from the other Party which is either marked as, or should otherwise reasonably have been understood to be, confidential (“Confidential Information”) will be held in confidence and used only for purposes of this Agreement.
These obligations will not apply to information which (a) is generally known to the public at the time of disclosure or later be- comes generally known through no fault of the receiving Party; (b) was known to the receiving Party prior to disclosure by the disclosing Party; (c) is disclosed to the receiving Party by a third party who did not obtain such information, directly or indirectly, from the disclosing Party subject to any confidentiality obligation; (d) is at any time independently developed by the receiving Party as proven by its contemporaneous written records; or (e) is required by law, court order, a governmental agency or law enforcement security initiatives to be disclosed.
Either Party may disclose Confidential Information to its parent companies and affiliates, provided that such parties agree to be bound by these obligations of confidentiality. Either Party may disclose publicly that the Parties have entered into this Agreement and that the other Party is a customer or vendor of the other Party. The Parties’ confidentiality obligations under this section will survive termination of the Agreement for a period of 3 years.
8. Data
8.1 Data Protection
Roxia complies with the data protection rules applicable in Finland when providing the Service. The Customer accepts that (i) the Customer may share with Roxia personal information concerning its employees or other users of the Service, (ii) Roxia may process and store such personal data anywhere in the world, also outside the European Union or European Economic Area; (iii) such processing and storage is necessary to operate the Service; and (iv) the personal information will be processed and stored in accordance with Roxia’s privacy policy (available at www.roxia.com, as amended from time to time). As regards information and/or data included in the Service, the Customer is the “data controller” for the purposes of the EU data protection directives and regulations as well as the corresponding national legislation, such as the Finnish Data Protection Act (1999/523; as amended).
Roxia cannot monitor or affect the information and/or data uploaded to the Service, such as personal information. The Customer assumes full responsibility for the lawful handling of any data uploaded to the Service. The Customer shall indemnify and hold Roxia harmless from and against any and all claims, actions, loss, demands, liabilities, expenses and damages of any kind resulting from or relating to the data privacy, insofar as arising from the information or data uploaded to the Service by Customer or its employees or other users.
8.2 Backups and Recovery
Unless otherwise agreed in writing, the Customer is solely responsible for maintaining its own backups of any data stored in the Service. Roxia’s backup mechanisms are provided for disaster recovery purposes only and do not replace the Customer’s backup obligations.
Roxia performs daily disaster recovery backups with a retention period of 14 days. Such backups are intended solely for full system restoration in disaster scenarios and are not designed for Customer-specific or granular data recovery. Restoration services are provided on a best effort basis only and are not guaranteed to be successful in all cases. Customer-initiated backup snapshots are not supported, and any manual restoration work performed by Roxia may be subject to additional fees.
8.3 Storage Quotas and Data Lifecycle
Customer data stored in the Service is retained for a maximum period of two (2) years from the date of creation or ingestion, after which it may be automatically deleted in accordance with Roxia’s data lifecycle policies, unless otherwise agreed in writing. The two (2) year retention period represents a maximum retention period and does not guarantee continuous availability of data throughout this period.
Roxia may implement technical storage limitations and operational controls to ensure system performance and stability. Such measures may include requesting the Customer to reduce data volume, restricting further data ingestion, or offering additional storage capacity for an additional fee where necessary. Roxia may also offer extended data retention periods upon request, subject to a separate written agreement and applicable additional fees.
If no corrective action is taken within a reasonable time, Roxia may remove older data as necessary to maintain system stability and compliance with applicable retention policies.
The Customer remains responsible for exporting and preserving any data required beyond the applicable retention period.
8.4 Data Retention After Termination
Upon termination of the Agreement, Roxia may retain Customer data for a period not exceeding 30 days, after which such data may be permanently deleted in accordance with Roxia’s standard practices.
Roxia is not required to provide data in any specific format other than may be required under mandatory applicable law during or after the Agreement. The Customer is responsible for exporting all necessary data prior to termination.
Any post-termination recovery or restoration services may be provided subject to technical and operational feasibility and may be subject to additional fees and are offered on a best effort basis only.
9. Term and Termination
This Agreement shall commence when the Customer (i) commences to utilize the Service or (ii) confirms to have accepted the Agreement in writing, whichever the earliest, and will continue in full force and effect until further notice, unless otherwise agreed in writing. The Customer may terminate the Agreement for convenience by closing down its account at the Service in which case the Agreement will terminate at the end of the current calendar month. Roxia may terminate the Agreement for convenience by providing the Customer with 30 days of written notice.
Notwithstanding the above, either Party may terminate the Agreement with immediate effect in the following situations: (i) for cause if the other Party is in material breach of the Agree- ment and does not cure (if curable) the same within 7 days after having received the other Party’s written notice thereof; and (ii) for convenience if the other Party is declared insolvent or has applied for corporate restructuring or similar procedure.
Termination shall not affect the fees which Roxia is entitled to invoice from the Customer up and until the effective date of the termination.
10. NO WARRANTIES, LIMITATIONS OF LIABILITY
TO THE EXTENT ALLOWED BY MANDATORY LAW, THE USE OF THE SERVICE TAKES PLACE SOLELY AT THE CUSTOMER’S OWN RISK AND THE SERVICE IS PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTIES OF ANY KIND. ROXIA SPECIFICALLY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, OF TITLE, NON-INFRINGEMENT, MERCHAN-TIBILITY, AVAILABILITY, ERROR-FREE OR FITNESS FOR A PRATICULAR PURPOSE.
ROXIA IS NOT LIABLE FOR ANY DAMAGE OR COSTS THAT ARE (I) PUNITIVE, INDIRECT OR CONSEQUENTIAL IN NATURE, SUCH AS LOSS OF DATA, PROFITS, REVE- NUES, GOODWILL, BUSINESS OPPORTUNITIES, OR PUR- CHASES OF SUBSTITUTE SERVICES OR PRODUCTS, DAMAGE CAUSED TO THIRD PARTIES, OR PLANT DOWN- TIME, OR (II) CAUSED BY INACCURATE, INCOMPLETE OR OUTDATED INFORMATION SUBMITTED OR STORED BY THE CUSTOMER AT THE SERVICE OR TO ROXIA, (III) CAUSED BY THE CUSTOMER’S OWN ACTIONS WHEN US- ING THE SERVICE (I.E. ACCIDENTAL OR UNINTENDED DELETION OR ALTERATION OF DATA OR CONTENT), OR (IV) RESULTING FROM FAILED BACKUP RESTORATION, STORAGE QUOTA LIMITS, CUSTOMER-SUPPLIED DATA IMPORT ERRORS, MALFORMED OR INCOMPATIBLE FILES, OR CUSTOMER CONFIGURATION ERRORS.
ROXIA’S TOTAL AGGREGATE LIABILITY FOR DIRECT DAMAGES UNDER THIS AGREEMENT SHALL UNDER NO CIRCUMSTANCE EXCEED THE PRICE PAID BY THE CUS- TOMER FOR THE SERVICE DURING A 12 MONTH PERIOD PRECEDING THE DAMAGING EVENT.
11. Choice of Law, Dispute Resolution
This Agreement shall be governed by the laws of Finland excluding its choice of law provisions. Any dispute, controversy or claim arising out of or relating to the Agreement, or the breach, termination or validity thereof shall be first subject to negotiation between the Parties. If the dispute is not settled within 90 days after a Party has requested for such negotiations, either Party may bring the dispute to be finally settled by arbitration in accordance with the Arbitration Rules of the Finland Chamber of Commerce. The Arbitration proceedings shall be conducted in Helsinki, Finland and the language of the proceeding shall be English. The arbitration proceedings including their existence are confidential. Notwithstanding the above, Roxia may claim any unpaid in- voices before the District Court of Helsinki, Finland.
12. Miscellaneous
Survival.
Any termination of the Agreement will not affect any liabilities or rights accruing prior to the effective date of such termination, or that are of a continuing nature. Any terms and conditions that by their nature or their explicit wording should survive a cancellation or termination of this Agreement shall also be deemed to survive.
Legal Requirements.
If the provision of the Service would di- rectly or indirectly contravene any law, act or order of a government, regulatory, or supervisory body applicable to Roxia, its affiliates, its distributors, customers, or the Customer and its affiliates, including but not limited to any applicable trade sanctions, Roxia may suspend the Agreement or withhold, restrict or reduce certain such services hereunder immediately. Any such suspension shall not exclude any right Roxia may have to terminate the Agreement.
Force Majeure.
Except for The Customer’s payment obliga- tions hereunder, neither Party will be deemed to be in default or liable for any delays if and to the extent that performance is delayed or prevented by events beyond the reasonable control of such Party. Such events include in particular terrorism, cyber-attack, epidemic, earthquake, fire, flood or other similar catastrophe, interruption in general traffic, data communication or supply of electricity, import or export embargo, strike, lockout, boycott or other similar industrial action or labor dispute or supply shortage.
Assignment, Subcontractors.
Neither Party may assign or transfer this Agreement either part or in whole, except that Roxia is entitled to assign the Agreement to its affiliate or in connection with a merger, acquisition or similar business rear- rangement procedure. Roxia is entitled to use subcontrac- tors. Customer is entitled to use subcontractors upon prior writ- ten consent of Roxia, which Roxia shall not withheld without a valid cause. Each Party remains fully liable for the acts and omissions of its subcontractors.
Amendments.
Roxia may amend these terms of use upon 30 days prior written notice. Said updated terms of use will be- come part of the Agreement, unless the Customer terminates the Agreement. Other amendments to the Agreement shall be made in writing in order to be binding. Service-level specifications such as backup retention or storage quotas may be updated by Roxia from time to time and documented in the applicable service description.
Compliance with Laws.
Both Parties shall comply with all applicable laws and regulations, including but not limited to anti-bribery legislation.
Waiver.
No delay or omission by either Party to exercise any right hereunder shall impair any such right or be construed to be a waiver thereof.
Severability.
If any provision of the Agreement is found invalid or unenforceable, the same shall not invalidate or render unenforceable any other part of the Agreement.
Entire Agreement.
The Agreement together with its accompanying documents constitutes the entire agreement regarding its subject matter between the Parties and replace any previous agreements, proposals, representation, inducement or notifications regarding the same.