1.1 These General Terms of Service and their appendices govern the use of VividWorks products, services and Professional Services (collectively the “Services”) provided to customer organizations and companies (“Customer”) who have taken the Services into use by executing an order (“Purchase Order”) or otherwise accepting these terms. The Services are provided VividWorks Ltd, a company established in Finland with the business ID 2012897-6 (“Supplier”). The Customer and the Supplier shall together be referred to as Parties and each separately as a Party.
1.2 A Purchase Order, these General Terms of Service and their appendices together form an agreement between the Customer and the Supplier on the use of the Services (“Agreement”). By entering into the Agreement you warrant to have the authority to do so on behalf of the Customer.
1.3 The Services, different plans, subscriptions, and their content offered by the Supplier are described on theSupplier’s website or other documentation provided to the Customer (“Service Descriptions”).
2. Right to use the services
2.1 Subject to compliance with the terms of the Agreement and due payment of all applicable fees, the Supplier grants to the Customer a limited, non-exclusive, non-transferable, and non-sublicensable right to use the Services (“Subscription”) and any deliverables of Professional Services in its internal business operations and for its internal business purposes for the term of the Agreement.
2.2 The Subscription is limited to the number of monthly user sessions, number of users or another applicable limit defined in the Service Descriptions or Purchase Order. The Customer is solely responsible for ensuring the adequacy of the Subscription for its use. Any use of the Services exceeding the Subscription shall constitute a material breach of the Agreement.
3. The Customer’s obligations
3.1 The Customer is responsible for:
(a) fulfilling its obligations in accordance with the Agreement;
(b) all of its activities concerning the Services, including the acquisition and functioning of all equipment, software and connections required to use the Services;
(c) keeping all user accounts up-to-date and secure and handling all user credentials with due care;
(d) providing any documentation and information that may be necessary for the Supplier to fulfil its obligations in accordance with the Agreement;
(e) for providing access to the Customer’s systems and IT environment to the extent necessary for the Supplier to perform the Services, where necessary due to the nature of the Services.
4. Restrictions of use
4.1 The Customer must not, under any circumstances:
(a) sublicense, lease, or redistribute access to the Services;
(b) circumvent or reverse engineer any features, functionalities, logic, source code, or usage restrictions and limits of the Services;
(c) probe, scan, or test the vulnerability of the Services;
(d) use the Services in a manner that accesses or uses any information beyond what the Supplier allows under theAgreement or that breaks or circumvents any technical or administrative security measures;
(e) use the Services in a manner that could damage, disable, disrupt, overburden or impair the Services or any underlying systems or services;
(f) transmit any malware, viruses, or other programming that may damage or detrimentally interfere with the Services or any underlying systems or services; or
(g) upload to the Services, either directly or indirectly, any content that infringes third-party rights.
5. Professional services
5.1 The terms of this Section shall apply to any set-up, implementation, configuration, consulting, item modelling, rendering and other services (“Professional Services”) as specified in Service Descriptions, Purchase Order, or as separately agreed to between the Parties.
5.2 The Customer shall give the Supplier its acceptance or observations regarding any deliverables (if any) of the Professional Services within seven (7) days after receiving the deliverables. If the Customer does not notify the Supplier of any observations within the said seven (7) day period, the Customer shall be deemed to have accepted deliverables and the Professional Services. The Professional Services and deliverables shall also be deemed accepted if the Customer takes the deliverables or ProfessionalServices into production use.
6. Customer material
6.1 The Customer shall ensure that any descriptions, specifications, logos, designs, drawings, other such data or any other material provided or authorized by the Customer in physical or electronic format to be processed by the Supplier in accordance with and based on the Agreement (“Customer Material”) do not infringe any intellectual property rights or other rights of third parties, applicable laws or orders issued by local authorities.
6.2 The Customer shall deliver the Customer Material by electronic means by a data transfer method and in a format accepted by the Supplier.
6.3 Should the Supplier discover any errors in the Customer Material, it shall inform the Customer without undue delay. The Supplier has, however, no obligation to verify or correct possible errors in the Customer Material or to verify or validate it.
7. Availability and changes to the services
7.1 The service level commitments of the Supplier are described in Appendix 2 (Service Level Agreement).
7.2 The Supplier constantly develops the Services and may make changes as deemed appropriate by the Supplier, provided that the changes do not materially decrease the functionality of the Services. Incase of any material changes in the Services, the Supplier shall inform the Customer no later than thirty (30) days before the intended implementation of the changes. The Customer is responsible, at its cost, to ensure that the Customer’s systems support the changes. In case a material change in theServices would cause an objectively unreasonable effect on the Customer, the Customer may terminate the Subscription as of the effective date of implementation of the change.
7.3 The Supplier has the right to suspend the performance of the Services if and to the extent necessary, for example, to carry out updates or other maintenance work of the Services. The Supplier shall minimise the impact of such work and strive to carry out such work outside normal office hours.
7.4 The Supplier shall notify the Customer in advance of any suspensions of the Services where the suspension cannot be made outside normal office hours, unless immediate suspension is necessary for reasons pertaining to the security of the Services or similar. The Supplier shall not be liable for any potential damage or loss incurred by the Customer due to any suspensions.
8. Pricing and invoicing
8.1 The fees charged for the Services are described in the Service Descriptions or in the Purchase Order. Professional Services are charged on a time and material basis in accordance with the then-current prices of the Supplier. Unless otherwise agreed, the Supplier shall give the Customer a non-binding work estimate for the Professional Services.
8.2 Unless otherwise indicated, all prices are exclusive of value added tax (VAT) and any other applicable taxes or fees imposed by public authorities or financial institutions. Such taxes and fees shall be added to the prices and be borne by the Customer.
8.3 The Supplier invoices the fees for the Subscription yearly in advance. The Professional Services are invoiced monthly in arrears.
8.4 All fees and payments made to the Supplier under this Agreement are non-refundable.
8.5 The Supplier may from time to time offer a version of the Services for Customers for trial use for a limited period. Such trial versions are offered free of charge and are subject to additional limitations or terms, including regarding the duration of the trial period and the functionalities available in the trial version.
8.6 The Supplier has the right to adjust the fees by providing the Customer with a prior notice of at least thirty (30) days. If the Customer does not accept such adjustments, the Customer is entitled to terminate the Agreement by providing the Supplier with a notice thereof prior to the effective date of the adjustment of the fees.
8.7 The term of payment is fourteen (14) days net from the date of the invoice. All payments shall be made in euros.Interest on any amounts due but not paid on the due date shall accrue in accordance with the Finnish Interest Act (633/1982, as amended) until the amounts due are paid in full. The Customer shall be responsible for reasonable costs incurred by the Supplier when collecting overdue fees.
8.8 Any notices by the Customer relating to invoices or payments hereunder shall be given in writing to the Supplier within fourteen (14) days from the receipt of the relevant invoice or payment. No notice shall entitle the Customer to delay the payment of any undisputed part of an invoice.
8.9 In case of any delay in payment of more than fourteen (14) days from the due date of Supplier invoice, the Supplier may, in addition to any other rights and remedies available to the Customer under the Agreement or pursuant to law, suspend the provision of the Services until Customer has paid the due amounts in full.
9. Third-party software
10. Data protection
10.1 The terms concerning the processing of personal data carried out by the Supplier as a processor on behalf of the Customer as a controller are included in Appendix 1 (Data Processing Appendix) of this Agreement.
11.1 Neither Party shall reveal or disclose any information or material in whatever form that a Party receives from the other under or in connection with the Agreement, which is marked as confidential or should be understood as confidential (“Confidential Information”) to any third party without the prior written consent of the other Party.
11.2 Notwithstanding the afore mentioned, the Supplier may disclose the Customer’s Confidential Information to its group companies, suppliers and subcontractors to the extent necessary for the provision of the Services. The recipients shall commit to confidentiality obligations equivalent to those set out in this Section and shall not use Confidential Information for any other purpose than for performing their obligations regarding the provision of the Services.
11.3 The obligation of confidentiality shall not apply to information which:
(i) is in the public domain at the time of disclosure or later becomes part of the public domain through no fault of the receiving Party;
(ii) was lawfully and rightly known to the receiving Party prior to disclosure by the disclosing Party as proven by the written records of the receiving Party;
(iii) is disclosed to the receiving Party by a third party who did not obtain such Confidential Information, directly or indirectly, from the disclosing Party and who was entitled to disclose such information; or
(iv) was independently developed by the receiving Party as proven by the written records of the receiving Party.
11.4 The obligation of confidentiality shall survive the termination or expiration of the Agreement for a period of three (3) years.
12. Intellectual property rights
12.1 All rights, title and interest, including all copyright, trademark, design, patent, trade name, domain name, knowhow, goodwill and trade secret, whether registered or not, and applications related to the same and all other rights of a similar nature or having an equivalent effect anywhere in the world (“Intellectual Property Rights”) to the Services, deliverables, and related material and software, including any new and derivative works generated based on any Customer Material, such as but not limited to 3D product models, shall vest in the Supplier.
12.2 The Customer shall not:
(i) modify or copy the Services or the deliverables or create derivative works based on the Services or deliverables, except for the specific design purposes of the Services and in accordance with Supplier’s instructions under the Agreement;
(ii) frame or mirror any content forming part of the Services or deliverables except for the specific marketing purposes of the Services; or
(iii) access the Services in order to build a competitive service, or copy any ideas, features, functions or graphics of the Services or deliverables.
12.3 The Customer shall retain all rights, title, and interest, including all Intellectual Property Rights to the CustomerMaterial. The Customer grants to the Supplier and all its subcontractors a worldwide, non-exclusive, royalty-free right and license to use the Customer Material for the purposes of providing the Services. The Supplier shall have the right to generate anonymous usage, statistic, and other data from and by analysing the Customer Material and the use of the Services.
5.1 The Supplier shall comply with all applicable laws relating to anti-bribery, anti-money laundering and anti-corruption.
5.2 The Supplier shall take reasonable steps to ensure there is no modern slavery in human trafficking in any part of its business or supply chains.
13. Anti-bribery, anti-corruption and modern slavery
13.1 The Supplier shall comply with all applicable laws relating to anti-bribery, anti-money laundering and anti-corruption.
13.2 The Supplier shall take reasonable steps to ensure there is no modern slavery in human trafficking in any part of its business or supply chains.
14.1 The Supplier shall indemnify, defend, and hold harmless the Customer against any claim, suit, demand or action by a third party alleging that the proper use of the Services infringes upon theIntellectual Property Rights of a third party.
14.2 The Customer shall indemnify, defend, and hold harmless the Supplier from and against all liabilities, damages, and costs (including settlement costs and reasonable attorneys’ fees) arising out of a third-party claim (i) regarding Customer Material; or (ii) regarding the Customer’s use of the Services in violation of this Agreement.
14.3 The Party seeking indemnifications hall (a) promptly give written notice of the third-party claim, suit, demand or action to the indemnifying Party; (b) give the indemnifying Party sole control over the defence and settlement of the claim, suit, demand or action; and (c) provide to the indemnifying Party all reasonable assistance free of charge.
14.4 At any time, if the Supplier reasonably deems that the Services may or do infringe upon any third-party Intellectual Property Rights, the Supplier shall have the right, at its own expense and in its sole discretion, to (i) acquire for the Customer the right to continue the use of the Services or (ii) replace the Services or (iii) modify the Services to the extent necessary to avoid the infringement.
14.5 If none of the alternatives set out in Section 14.4 are available to the Supplier on commercially reasonable terms and/or without significant loss of time, the Supplier shall have the right to terminate the Agreement subject to a notice period defined by the Supplier. In such a case, the Supplier shall reimburse any pre-paid fees for the terminated Services, less a proportion equal to the time of use of the Services by the Customer.
14.6 The Supplier’s indemnification responsibilities shall not apply to or cover any claim, suit, demand or action that (i) is based on a claim by a company within the same group of companies as the Customer; or (ii) is based on the modification or alteration of the Services by the Customer or any third party; or (iii) results from complying with any instructions, specifications or design given by the Customer or any third party under the command and control of the Customer; (iv) arises or results from the use of the Services in combination with any software, equipment, products or material not developed or supplied by the Supplier or which are contrary to instructions given by the Supplier; or (v) could have been avoided by using the latest version of the Services made available by Supplier to Customer.
15. Warranties, limitation of liability
15.1 The Supplier provides the Services on a strict ‘as is’ basis without any warranty of any kind, either expressed or implied, including but not limited to warranties of availability, non-infringement, or fitness for any particular purpose. The Supplier shall not be responsible for any errors, interruptions, or disturbances in any of theServices.
15.2 The Supplier’s liability for errors in the Services shall be limited to the Supplier using its commercially reasonable endeavours to either remedy the error or re-perform the Services, as deemed appropriate by the Supplier in its sole discretion.
15.3 The Supplier shall not be liable for any errors in the Services caused directly or indirectly by any acts or omissions of the Customer or any third party under the Customer’s responsibility (such as, but not limited to, third party provider of Customer Material).
15.4 Neither Party shall be liable for any indirect or consequential losses or damages, including but not limited to loss of profit, loss of revenue, loss of business, loss of goodwill, or loss of data.
15.5 The total aggregate liability of a Party under or in connection with the Agreement or the use of the Services as well as any other services provided by the Supplier shall be limited to the payments made by the Customer to the Supplier during a period of three (3) months immediately before the claim for damages.
15.6 The limitation of liability shall not apply to damages caused by wilful misconduct or gross negligence, a Party’s breach of Section 11 (Confidentiality), the Customer’s breach of Section 4 (Restrictions of use) or 6.1 (legality of Customer Material), or a Party’s obligation to indemnify the other Party under Section 14 (Indemnification).
16. Force majeure
16.1 Neither Party shall be liable for any delays or non-performance of its obligations, or any damages or losses caused by an impediment beyond its reasonable control, which it could not have reasonably taken into account, and whose consequences it could not reasonably have avoided or overcome. Such force majeure events shall include, if not proven otherwise, inter alia, war or insurrection, earthquake, flood or other similar natural catastrophe, interruptions in general traffic, data communication or supply of electricity, pandemics, import or export embargo, strike, lockout, boycott, or other similar industrial action.
16.2 Each Party shall without delay inform the other Party in writing of a force majeure event and the ceasing of such event.
16.3 A force majeure event suffered by a subcontractor of Party shall also discharge such Party from liability.
17. Term and termination
17.1 The term of the Agreement (“Subscription Period”) shall be defined in writing in a Purchase Order, Service Description or other document. Unless otherwise agreed in writing, the Subscription Period shall renew for successive Subscription Periods unless terminated by either Party by written notice submitted at least three (3) months prior to the end of the the non-going Subscription Period.
17.2 Each Party may terminate the Agreement for cause with immediate effect in case:
(a) the other Party becomes insolvent, applies for, or is adjudicated in bankruptcy or liquidation or corporate restructuring or otherwise ceases to carry on its business; or
(b) the other Party is in material breach of the terms and conditions of these Terms and fails to remedy such breach within thirty (30) days from the date of receipt of a written notice by the non-defaulting Party, such written notice detailing the breach and the intention to terminate.
17.3 Upon termination of the Agreement, the Customer shall immediately pay any outstanding fees.
18.1 The Supplier is entitled to use subcontractors in the performance of the Services. The Supplier is responsible for the actions of its subcontractors as for its own. However, the Supplier’s responsibility for errors in or attributable to systems, programs or services that have not been developed or performed by the Supplier, but by a subcontractor, is limited to the same responsibility that the subcontractor assumes towards the Supplier.
18.2 Nothing contained in the Agreement shall be construed as creating a joint venture, partnership, or an employment relationship between the Parties and neither Party shall have the right or authority to create any obligation or duty, express or implied, on behalf of the other.
18.3 No failure to exercise, nor any delay in exercising, on the part of either Party, any right or remedy shall operate as a waiver thereof, nor shall any single or partial exercise of any right or remedy prevent any further exercise thereof or the exercise of any other right or remedy.
18.4 The Parties are not entitled to assign or transfer the Agreement or part of it without the other Party's prior written consent. The Supplier however has the right to transfer the Agreement or part of it without the consent of the Customer to a company belonging to the same group as the Supplier or to a third party acquiring the business to which the Agreement belongs or relates to.
18.5 The Supplier shall be entitled to use Customer’s name and logo as a reference in the Supplier's marketing.
18.6 Any terms and conditions that by their nature or otherwise reasonably should survive a cancellation or termination of the Agreement shall be deemed to so survive.
18.7 This Agreement, including the appendices, sets forth the entire agreement and understanding between the Parties regarding the subject-matter hereof and supersedes any prior communications, agreements or understanding, written or oral, between the Parties regarding the subject-matter of the Agreement.
19. Applicable law and dispute resolution
19.1 The Agreement shall be governed by and construed in accordance with the laws of Finland, excluding its choice of law rules and principles.
19.2 The Customer and the Supplier shall seek to resolve any possible disputes in amicable negotiations. If the negotiations do not lead to settlement within one (1) month of the date the dispute first arose, any dispute, controversy or claim arising out of or relating to the Agreement shall be finally settled by arbitration in accordance with the Arbitration Rules of the Finland Chamber of Commerce. The seat of arbitration shall be Helsinki and the language of the arbitration shall be English. The number of arbitrators shall be one (1).
20.1 The following appendices form an integral part of these Terms:
- Appendix 1: Data Processing Appendix