1. General
These Terms of Use (“Terms”) and any other doc-uments (such as service descriptions, price list and Roxia’s privacy policy, as available at www.roxia.com) 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 Finn-ish limited liability company with business identity code 0162133-5, having its registered address at Marssitie 1, FI-53100 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.
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 environment (hardware and software), security, required network connections and the compatibility and interoperability of its files, systems or products with the Service. Roxia is not responsible for any services or products provided by the Customer 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 (available at www.roxia.com). 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 in-voiced 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 reserves 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.
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 from the Service or upon request from Roxia. Separate technical and customer support is available on demand during the normal business hours of Roxia 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) maintenance, test and development breaks, of which Roxia pursues to inform in advance.
However, considering that the Service is dependent upon network 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 actions 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 Service 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.
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.
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 disclosed 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 email or other message encryption or virus detection, and is not responsible for risks inherent in transmitting information via the internet 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. 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 becomes 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
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 others 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.
Unless otherwise agreed in writing, the Customer shall be re-sponsible for backups of the Customer’s information and/or data in the Service. The weekly backups taken by Roxia (if any) are for convenience only and Roxia assumes no liability for destruction, loss, alteration or reconstruction of Customer’s data. Roxia’s backup data will be stored 7 days and then deleted in accordance with Roxia’s standard practices. Any recovery of backups by Roxia may be subject to additional fees, and Roxia is not required to provide the Customer with any data stored in the Service in any particular format during or after this Agreement. Roxia shall have the right to destroy all the Customer’s information and/or data relating to the Service after 1 month of the termination of this Agreement, and thus the Customer acknowledges to retrieve any data from the Service (if relevant) before termination of this Agreement.
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 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 Agreement 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, MERCHANTIBILITY, AVAILABILITY, ERROR-FREE OR FITNESS FOR A PARTICULAR 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, REVENUES, GOODWILL, BUSINESS OPPORTUNITIES, OR PURCHASES OF SUBSTITUTE SERVICES OR PRODUCTS, DAMAGE CAUSED TO THIRD PARTIES, OR PLANT DOWNTIME, 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 USING THE SERVICE (I.E. ACCIDENTAL OR UNINTENDED DELETION OR ALTERATION OF DATA OR CONTENT).
ROXIA’S TOTAL AGGREGATE LIABILITY FOR DIRECT DAMAGES UNDER THIS AGREEMENT SHALL UNDER NO CIRCUMSTANCE EXCEED THE PRICE PAID BY THE CUSTOMER 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 invoices 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 directly 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 obligations 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, cyberattack, epidemic, earthquake, fire, flood or other similar catastrophe, interruption in general traffic, data communication or supply of electricity, import or export embargo, strike, lock-out, 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 rearrangement procedure. Roxia is entitled to use subcontractors. Customer is entitled to use subcontractors upon prior writ-ten consent of Roxia, which Roxia shall not withheld with-out 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 become 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.
Compliance with Laws.
Both Parties shall comply with all applicable laws and regulations including but not limited to antibribery 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 constitute the entire agreement regarding its subject matter between the Parties and replace any previous agreements, proposals, representation, inducement or notifications regarding the same.