Terms and conditions
FOR EMFIT QS SERVICE
1. SCOPE OF THE TERMS; PARTIES
These Terms apply to Agreement(s) (defined in Section 2) on the provision of the QS Service (defined in Section 2) by Emfit Oy with Business ID 0813747-4 (“Emfit”) to its Customer (defined in Section 2). These Terms form an integral part of the Agreement. The Customer’s purchase, procurement or other terms shall not apply to the Agreement, even if referred in or attached to the Customer’s purchase order or other document submitted by the Customer. Emfit and the Customer are also hereinafter referred to each as a “Party” and together as the ”Parties”.
The following terms shall have the meanings assigned to them herein:
“Agreement” means an agreement in which the Parties agree on the provision of the QS Service to the Customer, such as (i) an agreement signed by the Parties, (ii) Emfit’s binding email or other electronic written offer accepted by the Customer or (iii) the Customer’s order in Emfit’s electronic order system(s).
”Customer” means (i) an entity customer, such as a company or partnership (“Entity Customer”), or (ii) a private person who has entered into the Agreement for his/her personal private use (“Private Customer”).
”Customer Data” means any data or other content entered by or on behalf of the Customer into the QS Service, including but not limited to personal data.
“Documentation” means usage manuals and other documentation related to the QS Service in written or electronic form that are supplied by Emfit to the Customer or are accessible through the QS Service.
”Device” means a device of Emfit that are designed by Emfit to be used with the QS Service.
“Error” means an error, which can be reproduced and which causes the QS Service not function materially as described in the QS Service’s service description, as updated by Emfit from time to time. The service description shall exclude at all times marketing materials and marketing information.
“Intellectual Property Rights” means patents, inventions, trademarks, domain names, rights in know-how, trade secrets, copyrights, database rights, rights related to copyrights and any other intellectual and industrial property rights, whether registered or not, and including without limitation the right to amend and further develop the objects of those rights and the right to assign the rights to third parties.
”QS Service ” means software as a service delivered via data networks, including its modifications, Updates and New Versions, which Emfit takes into QS Service’s production use during the term of the Agreement.
“SaaS Fee” is defined in Section 4 of the Terms.
“Service Hours” means Finnish business hours Monday to Friday 09 a.m.-5 p.m., excluding national holidays in Finland.
”Statistical Information” means the Customer Data, as such or as processed and/or combined with other data, but in a form that no individual person’s or Customer’s identity can be identified.
“Support Service” means the support service provided to Entity Customers, as defined in Section 7 of the Terms.
“Update” shall mean a release of the QS Service containing security updates, Error corrections and/or minor changes to the QS Service. Emfit’s decision shall prevail in case of disagreement whether a release is a New Version or an Update.
“New Version” means any major release of the QS Service,which incorporates a new feature or features or major enhancement(s) to the features of the QS Service, and in addition may contain also security updates, Error corrections and/or minor changes to the QS Service. Emfit’s decision shall prevail in case of disagreement whether a release is a New Version or an Update.
3. CUSTOMER DATA, PERSONAL DATA AND CONNECTIONS
3.1 The Customer warrants that Emfit and its subcontractors are entitled to store and otherwise process the Customer Data lawfully for the purposes of the Agreement.
3.3 During and after the term of the Agreement, Emfit has a permanent, non-revocable, transferable, sublicensable and free of charge right to store and use the Statistical Information for the purpose of the development of the QS Service and other business.
3.4 The Customer shall, at its own expense, acquire the equipment, connections, data transfer services, hardware, software and information security services that are required for its use of the QS Service, according to the compatibility requirements set by Emfit from time to time.
4.1 The Customer is granted a non-exclusive, non-transferable and non-sublicensable right to use the QS Service during the term of the Agreement in the Customer’s own internal use in accordance with the Documentation in connection with using the Device(s). Entity Customers may allow their internal users to use the QS Service on the same terms and restrictions as granted to the Entity User. Entity Customers are liable for the internal users’ use, actions and omissions.
4.2 Where price is payable by the Customer for the right to use the QS Service (“SaaS Fee”), the Customer’s right to use the QS Service is conditional on the payment of the SaaS Fee to Emfit by the Customer.
4.3 The Customer shall follow the usage limitations set out in the Agreement, regarding e.g. the maximum number of users of Entity Customers or other limitations to the granted use. There are no implied licenses.
4.4 The Customer may use the Documentation to support the granted use of the QS Service, as long as the Customer’s right to use the QS Service is in force.
4.5 Except as set out in a signed Agreement with an Entity Customer, these Terms or the Documentation, the Customer may not use the QS Service or Documentation to offer services to any third party or otherwise transfer the QS Service or Documentation or allow access to them to any third party or allow any third party to benefit from the QS Service or Documentation.
4.6 The Customer shall maintain its usernames and passwords diligently and the usernames and passwords may not be disclosed to third parties. The Customer is responsible for the use of QS Service by using its usernames and passwords.
4.7 The Customer may not repair or otherwise modify the Documentation, or, even if it would be technically possible, the QS Service. Even if these actions would be technically possible, the Customer may not disassemble, decompile or reverse engineer or otherwise attempt to derive the source code of the software used to provide the QS Service.
4.8 The Customer agrees not to remove or conceal any copyright, trademark and other proprietary notices or other form of identification affixed to the QS Service or the Documentation.
5. RIGHT OF CANCELLATION BY CONSUMER
5.1 If a Private Customer who is a consumer in the meaning of Finnish Consumer legislation is obligated to pay the SaaS Fee or other prices to Emfit, the consumer has the right to cancel the fee-based order within fourteen (14) days of making the order. The Consumer is entitled to make such notice by using the cancellation form provided by Emfit or in another clear manner in written form.
5.2 However,the consumer does not have the right to cancel the fee-based order if the provision of QS Service or its feature has in accordance with the request of the consumer commenced before the end of the cancellation period.The consumer hereby requests the commencement of the provision of the QS Service or its feature before the end of the cancellation period[A2] .
6. PROVISION OF QS SERVICE
6.1 Emfit may suspend the provision of or access to the QS Service e.g.:
(a) if it is necessary e.g. for the purposes of installation, change or maintenance work, or
(b) due to interruption in public networks, security risks, problems in electricity supply, if required by law or an order by an authority, if Emfit suspects misuse of the QS Service or breach of the Terms or if there is a similar reason.
6.2 Emfit may make changes to the QS Service and Documentation at any time.
7. SUPPORT SERVICE
7.1 Emfit provides the Support Service only to Entity Customers, as long as the Entity Customer pays the SaaS Fee to Emfit in accordance with the terms of the Agreement.
7.2 As part of the Support Service, the Entity Customer may report Errors to Emfit’s Help Desk addresses and/or telephone numbers notified by Emfit. The Help Desk will serve during the Service Hours. The Support Service may be contacted only by the Entity Customer’s named main user(s), who are trained in the use of the QS Service.
7.3 The Support Service is performed remotely. Any possible on-site support shall be agreed between the Parties separately in writing and is subject to a separate charge in accordance with Emfit’s price list. The Entity Customer shall at its own expense procure and maintain its data communications connections and data security necessary for the remote Support Service connection.
7.4 Emfit will use commercially reasonable efforts to investigate and correct reported Errors after the receipt from Customer of sufficient information regarding the Error. Emfit will perform investigation and correction efforts during the Service Hours. Emfit cannot, however, warrant that all Errors can or will be corrected or that the Errors will be corrected within a certain time period. Emfit may prioritize the investigation and correction of different Errors taking into account their severity and effect, as estimated by Emfit.
7.5 The Support Service does not cover correction of Errors and Emfit is not be liable for Errors:
(a) caused by faulty use;
(b) caused by failure to follow the terms of the Agreement or usage instructions;
(c) caused by a modification or repair performed by anyone else than Emfit;
(d) caused by third party software, product, service, settings, content or data or for any changes in the same;
(e) if the Customer has not installed the latest Emfit software updates and upgrades that are available for the Device;
(f) usage of the QS Service with, or connecting it to, any product, accessory, software or service other than the Device;
(g) caused by hacking, viruses or other malware;
(h) caused by failure of Internet or other networks;
(i) caused by accident, electricity or air condition failures, fire or water damage or any other external cause, or failure or defect of the Devices; or
(j) caused by other acts beyond Emfit’s reasonable control.
7.6 For the avoidance of doubt, the Support Service does not include consultation or other professional services, such as the creation of specific reports.
8. INTELLECTUAL PROPERTY RIGHTS
Title and any and all Intellectual Property Rights in and to the QS Service, Documentation, results of the Support Services and any other Emfit’s services, and any copies, modifications, translations, amendments and derivatives thereof are and shall belong to Emfit or its licensors.
9. PRICES AND PAYMENT
9.1.1 The SaaS Fee is always payable by Entity Customers during the term of the Agreement. Private Customers may select features of the QS Service for which the SaaS Fee is payable during the term of the Agreement.
9.1.2 If the amount of the SaaS Fee is not agreed in the Agreement, the amount of the SaaS Fee is in accordance with Emfit’s price list.
9.1.3 Emfit may amend the SaaS Fees and other prices by notifying the Customer thereof latest three (3) months prior to the amendment. Emfit may not, however, increase the prices by more than five percent (5 %) per year. If a price payable by a Private Customer is increased, the Private Customer may terminate the Agreement to the end of Emfit’s price increase notice period.
9.2 Invoicing and Payment
9.2.1 If not otherwise agreed in the Agreement, the prices are invoiced:
(a) recurring prices, such as monthly, quarterly or annual prices, in advance of the invoicing period; and
(b) additional Support Service prices and other prices monthly afterwards.
9.2.2 Invoices are payable within fourteen (14) days from the date of the invoice. Emfit may suspend its deliveries to the Customer and/or the Customer’s access to the QS Service in the event that the Customer has delayed in making any payment despite of a payment reminder. The Customer shall pay interest on delayed payments in accordance with the Finnish Interest Act.
9.3 Taxes and Expenses
9.3.1 Relating to the payments made by the Customer to Emfit based on the Agreement, value added tax, duties, levies and other taxes and governmental charges are borne by the Customer and added to the prices. This shall not however apply to the income tax payable by Emfit for its income.
9.3.2 Emfit may charge the Customer for travel and accommodation expenses and daily allowances accrued to Emfit from the performance of the Support Services. For travel time, Emfit’s hourly price according to its price list is charged.
10.1 THE QS SERVICE IS NOT SAFETY OR LIFE MONITORING SERVICE. THE QS SERVICE MAY NOT BE USED IN ORDER TO PREVENT DAMAGE OR INJURY TO PERSONS. THE USE OF THE QS SERVICE DOES NOT DIMINISH OR REMOVE THE CUSTOMER’S OR ANY USER’S RESPONSIBILITIES TO ACT WITH DUE CARE TO AVOID DAMAGE AND INJURY. THE USE OF THE QS SERVICE DOES NOT REPLACE THE POSSIBLE NECESSITY TO SUPERVISE PERSONS, SUCH AS SENIORS OR CHILDREN WHO ARE NOT ABLE TO FULLY TAKE CARE OF THEMSELVES.
10.2 TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EMFIT DISCLAIMS ANY AND ALL WARRANTIES (EXPRESS OR IMPLIED) WITH RESPECT TO THE QS SERVICE, DOCUMENTATION AND ITS SERVICES, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
11.1 Unless otherwise ruled by mandatory applicable law, Emfit shall have no liability for (i) indirect, incidental, special or consequential damages such as loss of profit, working time or savings, or for punitive damages or damages payable to third parties, or (ii) loss or alteration of data nor for any damages incurred as a result thereof such as expenses involved in the reconstitution or transfer of data.
11.2 Unless otherwise ruled by mandatory applicable law, Emfit’s aggregate maximum liability for any and all causes of action occurred during any calendar month, and including the amounts of possible price returns, price reductions and service level credits, shall not exceed the amount of the SaaS Fee (without value added tax and other governmental charges) paid by the Customer to Emfit for the said calendar month.
12.1 Termination at Will
The Agreement will continue in force and will remain in force until terminated by either Party by giving a six (6) months’ written notice to the other Party. In addition, a Private Customer who is not obligated to pay the SaaS Fee or other prices to Emfit, may terminate the Agreement by giving a written notice to Emfit with immediate effect.
12.2 Termination for Cause
Either Party may terminate the Agreement with immediate effect by giving the other Party a written notice if:
(a) the other Party commits a material breach of the Agreement and fails to remedy the same within thirty (30) days after receipt of a written demand from the other Party to cure the breach; or
(b) the other Party is declared bankrupt, placed into liquidation or its financial situation has otherwise materially deteriorated, so that it becomes evident that the other Party will not be able to fulfill its obligations under the Agreement.
13.1 Reference Right
Emfit is entitled to use Entity Customers as a reference publicly and in marketing unless explicitly denied by Entity Customer.
13.2 Recruitment Restriction
An Entity Customer may not hire any employee or director of Emfit or enter into any other agreement or other arrangement, whose purpose is to obtain the work contribution of such person, until twelve (12) months have passed from the earlier of (i) the termination or expiration of the Agreement or (ii) cessation of the person’s employment or director relationship with Emfit. In case of a breach of this recruitment restriction, the Entity Customer shall pay to Emfit as liquidated damages one hundred thousand (100.000) euros for each breach.
13.3 Assignment and Subcontractors
Emfit may assign the Agreement and Emfit’s rights and obligations relating to the Agreement and/or these Terms to any third party. Emfit may subcontract its obligations. Emfit is liable for the performance of its subcontractors as for performance of its own.
If any provision of the Terms is found to be contrary to law, other provisions of the Terms will remain in full force and effect. Such invalid provision shall be interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law.
Amendments of the Terms are not binding on Emfit unless consented to by Emfit’s authorized representative in written signed form.
Emfit may give its written notices and other information to the Customer validly in the user interface of the QS Service or in other electronic form.
13.7 Force Majeure
Emfit shall not be liable for delays, defects or damages caused by factors due to an impediment beyond Emfit’s control, which he cannot reasonably be deemed to have taken into account at the time of the entering into the Agreement, and the consequences of which Emfit could not reasonably have avoided or overcome. Such events of force majeure shall include, without being limited to, natural disasters, problems in electricity or networks, failures in Internet, WIFI, public networks or data traffic, security attacks, lack of or problems in transportation, strikes and other labor disputes, delays in customs, delays due to difficulty to get import or export permit or other acts of government. A labor dispute shall be considered a force majeure event also when Emfit is the target or a party to such an action. The force majeure events suffered by subcontractors are also deemed as force majeure events.
13.8 Governing Law and Dispute Settlement
13.8.1 These Terms and the Agreement 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.
13.8.2 Between Emfit and Entity Customers, any dispute, controversy or claim arising out of or relating to the Terms and the Agreement, or the breach, termination or validity thereof, shall be finally settled by arbitration in accordance with the Rules for Expedited Arbitration of the Finland Chamber of Commerce, in English language in Helsinki, Finland. The arbitrator shall have at least a master’s degree in law from a Finnish university and have experience in technology-related disputes. Notwithstanding the above, Emfit shall be entitled to seek equitable and/or injunctive relief or take legal actions concerning overdue payments in any court of law.
13.8.3 Between Emfit and Private Customers, unless ruled otherwise by mandatory applicable law, the sole and exclusive jurisdiction for any action or proceeding arising out of or related to the Terms and the Agreement shall be the competent Finnish district court. Emfit may also take legal actions in courts where the Customer has a domicile or habitual residence.
13.8.4 If a Private Customer is a consumer in the meaning of Finnish Consumer legislation, the consumer is informed of an out-of-court dispute resolution body:
Consumer Disputes Board, Finland