1. SCOPE OF THE TERMS; PARTIES
These Terms apply to, and form part of, Agreement(s) on the provision of Services by Reslink Solutions Oy (“Supplier”) to its customer (“Customer”). Without limiting the foregoing, any additional or conflicting terms specified in any purchase order or other document issued by Customer are, unless specifically acknowledged and agreed by Supplier in writing, deemed proposals only and are hereby rejected. Supplier and Customer are also hereinafter referred to each as a “Party” and together as the ”Parties”.
These Terms will also be applicable in case a reseller of Supplier is selling the Services to the Customer and these Terms have been attached to that contract. In such situations the reseller is considered to be Supplier under these Terms and the reseller assumes all rights and obligations towards Customer. In such a case Reslink Solutions Oy is not a contracting party with Customer and any and all claims should be made to the reseller alone.
The following terms shall have the meanings assigned to them herein, unless otherwise agreed in the Agreement:
“Agreement” shall mean an agreement, in which the Parties agree in writing on provision of Services to Customer, such as (i) an agreement signed (manually or electronically) by the Parties, (ii) Supplier’s offer accepted in writing (by manual signature, email confirmation or otherwise electronically) by Customer, or (iii) Customer’s order accepted by Supplier (by manual signature, email confirmation or otherwise electronically).
“Documentation” shall mean user manuals and instructions in written or electronic format that are supplied by Supplier to Customer along with the provision of Services or that are included in the Reslink Service, but excluding marketing materials.
“Error” shall mean an error in the Reslink Service, which causes the Reslink Service not to function at all or not to function materially as set out in the Documentation, excluding the service breaks set out in Section 4.
“Hardware” shall mean the NFC tags and possible other hardware components agreed to be provided by the Supplier under any Agreement.
“Intellectual Property Rights” shall mean any and all intellectual property rights, such as patents, inventions, rights in designs, rights in know-how, trademarks, database rights, trade secrets, domain names, techniques, methods and copyrights (including without limitation right to amend and further develop as well assign one’s rights), in each case whether registered or not, whether registrable or not, and including applications for grant of any of the foregoing and all rights or forms of protection having equivalent or similar effect to any of the foregoing which may now or at any time hereafter exist anywhere in the world.
“Monthly Fee” shall mean the monthly recurring fees payable by Customer for Reslink Service as specified in the Agreement.
“Project Services” shall mean the training, consultancy, deployment, development and other service that the Supplier provides under the Agreement.
”Reslink Application” shall mean a software application provided and licensed by the Supplier in connection with Reslink Service as it may be updated from time to time by Supplier.
”Reslink Service” shall mean access by Customer via web-user interface or client software to the System to view information produced by the System and to update the Customer specific settings of the Reslink Service. The Reslink Service is defined in its Documentation and the Suppliers offer or the Agreement. Documentation and the Reslink Service may be modified by Supplier at any time to include modifications, enhancements, corrections, updates and upgrades of the Reslink Service. Supplier has the right to charge additional fees for new features or functionalities that Customer does not have in the service in the beginning of the Service Period but that Customer may want to enable in the Reslink Service later on.
”Service Period” shall mean the time period agreed in each Agreement as the period when Supplier provides Services to Customer.
“Services” shall mean the services agreed in each Agreement to be performed by Supplier, such as the Reslink Service and Project Services.
“System” shall mean Supplier’s system, where the data generated by the usage of Customer’s and its user’s equipment or other information selected by Supplier from time to time is stored and processed, and which is defined in the Documentation as may be modified by Supplier at any time, including the modifications, enhancements, corrections, updates and upgrades of the System.
3. DELIVERY OF THE SERVICES
Supplier will use reasonable efforts to provide access to the Reslink Services, provide the Project Services and Hardware within the agreed delivery times and will notify Customer of any expected delays.
Customer undertakes without delay to provide to Supplier the material and information and access to premises that are necessary for the timely provision of the Services.
The Parties will discuss the mobile device models and their operating system versions that Customer intends to use with the Reslink Service. Customer is responsible to test that its mobile device models function with the Reslink Service. Updates and new software versions of the operating systems of the agreed devices may cause problems with the Reslink Service that Supplier is not responsible for.
After the Customer has ordered the Reslink Service Supplier will set it up for access by the users authorized by the Customer (hereinafter “Users”). The Customer is required to provide the names and emails of User(s) who will have admin privileges (hereinafter “Admin(s)”)
The Users will have full access to the service as long as the Services are available to the Customer under this Agreement and the Customer has ordered the required number of seats for the Users. The Admins can remove Users from the Service.
The Services provided by Supplier shall be deemed accepted if Customer does not report Errors within seven (7) days after Services have been delivered.
4. THE RESLINK SERVICE AND THE SYSTEM
Customer may access the Reslink Service to view information related to Customer’s business produced by the System during the agreed Service Period. In case the Parties have agreed that the System is integrated with Customer’s systems, Customer may receive such information to its own systems through the System during the agreed Service Period. Customer Admins may also change some of the parameters of the Reslink Service to amend the look and feel of the Reslink Service.
Customer may use the Reslink Service’s standard version as available from time to time unless inclusion of additional features is explicitly agreed in the Agreement. In case Supplier develops new features or functionalities to the Reslink Service, or to the System integrated with Customer’s systems, Supplier may charge additional fees for the right to use them.
Supplier may suspend the production of or access to the Reslink Service or the production of the System:
- for a reasonable time for the purposes of change or maintenance work. Supplier will use reasonable efforts to minimize the down time caused by the suspension as much as reasonably possible, by e.g. scheduling the suspension outside of normal working hours of Supplier; or
- due to Errors or a security risk, as required by law or a governmental order or if Supplier suspects misuse.
Where reasonably possible, Supplier shall inform Customer of the suspension and the estimated duration of the suspension reasonably in advance, or if this is not reasonably possible, without delay after Supplier has learned of the cause of the suspension.
The usage and functioning of the Reslink Service requires equipment and services such as computers and end user equipment with data connectivity or mobile data connectivity. Customer shall at its expense acquire the equipment, connections, software and data security that are required for its use of the Reslink Service, and for the integration and data transfer with the System, according to the requirements set by Supplier from time to time.
Supplier shall not be liable for any suspensions of Customer’s access to the Reslink Service or failures in the Reslink Service caused by any third party equipment or services or failures arising out of any third party equipment or service, even if Supplier would have recommended or approved the third party equipment or service.
Customer’s users shall maintain user names and passwords diligently and they may not be disclosed to third parties. Customer shall be responsible for the use by persons using its user names and passwords. Customer shall be responsible for obtaining consents from its users that are required for Supplier and its subcontractors to process the users’ personal data for the purposes of the Agreement.
5. SERVICE LEVEL, SUPPORT SERVICE
5.1 Service level and Support Service
The Reslink Service has been designed to function in a manner that is materially free of Errors.
Supplier supervises the operation of the Services. Customer may also notify Supplier of suspected Errors in the Reslink Service, to Supplier’s Help Desk as specified by Supplier. Customer shall also describe how the Error occurs. Only such Customer’s named contact person(s), who are trained and qualified in the use of the Reslink Service may contact the Supplier’s Help Desk. Supplier is entitled to charge for calls to its Help Desk by other persons than the named contact person and also if calls are due to other issues than such faults in the Service that Company is responsible for.
Supplier shall use commercially reasonable efforts to correct Errors during the normal working hours of Supplier or its subcontractor. Supplier may correct Errors, which Supplier deems as minor, in the following versions or releases of the Reslink Service.
Customer is responsible for all Errors that are caused by: (a) external factors; (b) misuse, negligence or failure to follow the terms of the Agreement or the usage instructions; or (c) third party services and equipment (e.g. mobile devices) or alterations or repairs made by anyone else than Supplier.
Supplier’s obligations set forth in above in this Section 5 and in a possibly concluded service level agreement are Supplier’s sole and exclusive obligations and Customer’s sole and exclusive remedy with respect to Errors, defects, malfunctions or other matters relating to the Reslink Service, any other Services, the System, Documentation, Hardware and other materials and information furnished by Supplier hereunder or Customer’s use of them. Unless otherwise agreed in writing, Hardware is supplied as is without warranty.
EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 5, THE SYSTEM, RESLINK SERVICE, ANY OTHER SERVICES, DOCUMENTATION HARDWARE AND OTHER MATERIALS AND INFORMATION ARE PROVIDED “AS IS” AND “AS-AVAILABLE.” SUPPLIER DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE.
6. INTELLECTUAL PROPERTY RIGHTS AND THE RIGHT TO USE
Title and any and all Intellectual Property Rights in and to the Services, the System, the information stored in and/or produced by the System, the Documentation, all materials, software and documentation delivered or to be delivered by Supplier, as well as any copies, modifications, translations, amendments and derivatives thereof are property of and shall belong to Reslink Solutions Oy and its licensors. Customer owns all data generated by it and its users other than data that is publicly available. Reslink Solutions Oy may freely use the data generated within and to the System and Customer’s feedback and improvement ideas to e.g. develop its products and services and to otherwise use such data without disclosing Customer’s name or any Confidential Information.
Subject to Customer’s payment of the prices payable under the respective Agreement, Customer is granted a non-exclusive and non-transferable right to use the Services, the results of the Services, the information produced by the System related to Customer’s business, the application programming interface (“API”) or other software that may be provided by Supplier and the Documentation during the term of the respective Agreement for Customer’s internal use, only in the form provided or made available by Supplier, and provided such use is in accordance with the Documentation. Customer may not use them to offer services using them to third parties or otherwise license, transfer or provide access to them, to third parties, without Supplier’s prior written consent.
Customer is not entitled to not repair, open, disassemble, decompile or reverse engineer or otherwise modify the software that may be provided by Supplier.
By providing comments, feedback, development ideas, inventions or other opinions (“Feedback”) to Supplier, Customer grants all rights to the Feedback to Reslink Solutions Oy and agrees that Reslink Solutions Oy may, at its own discretion, freely utilize the Feedback as it deems fit as well as to develop, patent, license, distribute, sell future versions of products and services that may utilize such Feedback. Supplier or Reslink Solutions Oy is not obliged to pay any compensation to Customer for any use of Feedback. For the sake of clarity, Customer has no obligation to give Feedback and Reslink Solutions Oy has no obligations to use it or take it into account.
7. PRICES, ACCEPTANCE AND INVOICING
If a price for some Service or item has not been specified in the Agreement, it shall be in accordance with Supplier’s then current price list. Customer shall pay the agreed service fees for the Reslink Service and other ordered related services during the Service Period.
7.2 Invoicing and Payment Terms
If not otherwise agreed in the Agreement, the prices are invoiced as follows:
- Monthly Fees are invoiced in monthly periods in the end of each month;
- prices for other services are invoiced after the service has been performed; and
- prices for any physical items are invoiced when the item is delivered.
Invoices are payable within thirty (30) days from the date of the invoice. Any overdue payment shall be subject to an overdue interest at the rate of ten percent (10 %) per annum, or at the maximum rate allowed by law whichever is lower. Without limitation on any other right or remedy of Supplier, Supplier may suspend Customer’s access to the Reslink Service and results of Services in the event that any Customer payment subject to any Agreement is delayed over 15 days from the due date.
If any cost elements outside of Supplier’s reasonable control, such as currency rates between Euro and the invoicing currency, change during the Service Period causing over five (5) % increase in Supplier’s costs Supplier shall have the right to adjust Monthly Fee to reflect the impact of such change by notifying Customer of the change in writing at least six (6) months prior to the price change. Customer is not entitled to terminate the respective Agreement(s) because of such change.
Supplier is also entitled to propose other changes to the Monthly Fees 3 years after the Effective Date by notifying Customer of the change in writing at least six (6) months prior to the price change. If any such other change results in more than 5% annual increase in Monthly Fee Customer is entitled to terminate the respective Agreement(s) on the date when such fee change would become effective by informing Supplier of its intention to terminate the respective Agreement(s) in writing at least three (3) months prior to the intended date of the price change.
7.3 Taxes and Expenses
All prices are expressed exclusive of any taxes, duties and other such public fees and charges. If sales, use excise, value-added (VAT), withholding or other similar taxes or levies are required by laws and regulations to be applied, such amounts will be added to the prices and shall be invoiced to and payable by Customer.
Except where otherwise provided in the Agreement, each Party (i) shall keep in confidence all information of the other Party that is marked as confidential or that the receiving party should reasonably understand is confidential from the circumstances of disclosure or the nature of the information (“Confidential Information”); (ii) may not disclose the other Party’s Confidential Information to any third parties and (iii) may not use or utilize such Confidential Information for any other purposes than for the fulfillment of the purpose of the Agreement. Without limiting the generality of the foregoing, the structure of the Reslink Service, the System, software delivered by Supplier, the Documentation and the ideas contained in them are Supplier’s Confidential Information. Supplier may disclose Customer’s Confidential Information to its subcontractors for the purpose of the fulfillment of the purpose of the Agreement, provided that it has agreed on a confidentiality provision substantially similar as that herein with the subcontractors.
This confidentiality obligation shall not apply to information: (i) which at the time of disclosure is or later becomes generally available or otherwise public through no breach of the Party receiving the information; (ii) which was in the possession of the receiving Party without a confidentiality or non-use obligation prior to receipt of the same from the other Party; (iii) which the receiving Party receives from a third party who did not breach an obligation of confidentiality when disclosing the information; (iv) which the receiving Party can prove the receiving Party has developed independently without using the Confidential Information of the other Party; or (v) which the receiving Party is obliged to disclose pursuant to an order by an authority or court or otherwise in accordance with law. Without limiting the foregoing, Supplier shall have the right to utilize the general know-how, skills and expertise that its and its subcontractors’ personnel have learned in conjunction with the performance under any Agreement.
Unauthorized disclosures of Confidential Information that are caused by security breaches or other similar causes are not regarded as a breach of the above confidentiality obligation as long as the Party has used reasonable care in protecting the Confidential Information from such causes.
Customer understands and accepts that the API related information is very sensitive and confidential information and that special care will be taken to endure the confidentiality of that information. API information may not be disclosed to any party, even to other employees of the Customer, without Company prior approval. Company may require personal confidentiality agreement for all Customer personnel working with and having access to API information.
EITHER PARTY SHALL HAVE NO LIABILITY FOR ANY (I) INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES INCLUDING BUT NOT LIMITED TO LOSS OF PROFIT, REVENUE OR SAVINGS, OR FOR DAMAGES PAYABLE TO THIRD PARTIES, OR (II) LOSS OR ALTERATION OF DATA OR EXPENSES CAUSED THEREFROM OR COST OF COVER PURCHASE ARISING UNDER OR IN CONNECTION WITH ANY AGREEMENT, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
In no event shall Supplier’s aggregate maximum liability (including but not limited to price refunds or reductions) to Customer arising out of or related to any Agreement, for any claim, cause of action, event, act, omission or failure occurring or arising during any twelve (12) month period exceed the amount of the net prices paid by Customer to Supplier for the respective Service during the said period under the Agreement(s) where the claim relates to.
The limitations of liability shall not apply to damages caused by gross negligence or intentional act or to breach of the Section entitled “Confidentiality”.
10. TERM AND TERMINATION
The Agreement shall be in force initially for the time period starting from the effective date (“Effective Date”) and ending in the end of Service Period (“Initial Term”). If the time period for Initial Term is not defined in the Agreement the Initial Term shall be three (3) years. If no Effective Date is defined in the Agreement, the Effective Date shall be the latest signature date of the Agreement, and if there are no signatures (whether manual or electronic) in or of the Agreement, the Effective Date shall be the date when Customer has accepted Supplier’s proposal or Supplier has approved Customer’s order. After the Initial Term the Agreement will continue for subsequent one-year terms (each “Renewal Term”), unless terminated by either Party by a written notice given at least three (3) months prior to the end of the then current Initial Term or Renewal Term, to terminate at the end of the then current term (either Initial Term or Renewal Term). In addition, Supplier may at any time terminate the Agreement with six (6) months written notice in case Supplier ceases any business related to the Agreement.
10.2 Termination due to Cause
Either Party may terminate the Agreement immediately with a written notice to the other Party in case:
- the other Party commits any material breach of the Agreement and fails to remedy the same within thirty (30) days after receipt of a written notice by the other Party (in which notice the first Party notifies of its intent or possible intent to terminate the Agreement then unless the breach is cured within such period), or
- the other Party is adjudicated bankrupt or placed in liquidation, discontinues the active conduct of its business, fails or is unable to pay its debts as they become due, or is or becomes insolvent.
Upon any termination of any Agreement:
- Customer shall at its expense return the copies of the Documentation and the software possibly delivered by Supplier, or if instructed by Supplier, destroy them;
- All access to the Service as well as rights and licenses granted to Customer hereunder will immediately cease; and
- Supplier will invoice all amounts that Customer must pay notwithstanding the termination. For the avoidance of doubt, if Customer has terminated the Agreement other than in accordance with the provisions 10.1 or 10.2 of the Agreement or the Agreement was terminated by Supplier in accordance with Section 10.2 of these Terms due to Customer, Customer must pay to Supplier all amounts that would have been payable if the respective Agreement would not have been terminated.
11.1 Reference Right and Assignment of the Agreement
Supplier may assign Agreement(s) without the consent of Customer to a transferee, in connection with the sale or transfer of its business or part thereof, or to its affiliate, and by merger or demerger. Supplier shall have also the right to assign its receivables arising out of the Agreement to a third party. Except as aforesaid, neither Party may assign any Agreement without the prior written consent of the other Party.
Supplier shall have the right to use any subcontractors. Supplier shall be liable for the work of its subcontractors as work of its own.
Reslink Solutions Oy may use Customer as a reference in its marketing.
11.2 User Terms
Supplier may require the users of the Reslink Service to accept Supplier’s user terms. Supplier reserves the right to amend or replace its user terms from time to time
Supplier will inform Customer and user of such user terms and they may also be made available upon users access to the Reslink Service or on [https://www.reslinkcluster.com/xxxxxxxxxx] Unless Customer or user informs Supplier immediately that it does not accept those terms, Customer or user is deemed to have accepted them. If Customer or any user does not accept those terms Supplier may discontinue the Service or parts thereof.
Upon termination of the Agreement, the provisions relating to title and Intellectual Property Rights, confidentiality, limitations of liability and governing law and dispute settlement, shall survive. Also, any other provisions which by their nature contemplate effectiveness beyond the termination of any Agreement, shall survive the termination.
11.4 Entire Agreement
The Agreement(s) constitutes the complete agreement between the Parties with respect to the subject matter of the Agreement(s) and supersedes all previous proposals and marketing materials and other communications between the Parties with respect to the subject matter of the Agreement(s).
If any provision of any Agreement is found to be contrary to law, the other provisions of the Agreement will remain in full force and effect and the Agreement shall be interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law.
11.6 Waiver and Amendment
No change or amendment of any Agreement shall be valid unless made in writing and signed both Parties. No failure by either Party in exercising any right, power, or remedy under any Agreement shall operate as a waiver of any such right, power or remedy.
11.7 Force Majeure
Except with respect to payment obligations, which will not be subject to this Section, a Party shall not be liable for the delays, defects or damages that are caused by factors due to an impediment beyond his control, which he cannot reasonably be deemed to have taken into account at the time of the conclusion of that Agreement, and the consequences of which he could not reasonably have avoided or overcome. Such events of force majeure shall include, without being limited to, natural disasters, breakdown of electricity or networks, failures in Internet and other public networks or data traffic, security attacks, strikes and other labor disputes or acts of government or authorities. A labor dispute shall be considered a force majeure event also when the Party concerned is the target or a party to such an action. The force majeure events suffered by subcontractors shall also be deemed as force majeure events.
11.8 Governing Law and Disputes
If not otherwise agreed in other parts of any Agreement, all Agreements shall be construed in accordance with the laws of Finland excluding its choice of law provisions and the UN Convention on Contracts for the International Sale of Goods and all disputes arising out of all Agreements shall be finally settled by arbitration in accordance with the Arbitration Rules of the Finland Chamber of Commerce by one (1) arbitrator. The arbitration shall take place in Helsinki, Finland, and shall be conducted in English.
Notwithstanding the above, each Party shall be entitled to seek equitable and/or injunctive relief to prevent or stop a violation of the terms and conditions in any Agreement pending arbitration and Supplier may take legal actions concerning overdue payments, in any court of law.