This SaaS agreement and the terms and conditions herein (“Agreement”) constitute a legal agreement between the Customer (“Customer”) and Root Signals (“Root Signals”) on the Customer’s access and use of the Services (each hereinafter individually referred to as a “Party”, and together as the “Parties”).
By clicking “Accept” or “Sign up” the Customer agrees to be bound by the terms of the Agreement. If the terms of the Agreement are not accepted, the Service may not be accessed or used.
By clicking “Accept” or “Sign up” you represent and warrant that you are authorized to legally bind the legal entity you are representing to this Agreement and such legal entity is considered the Customer as referred to in this Agreement.
In this Agreement, those words and expressions starting with capital letters as well as acronyms used, but not defined elsewhere in this Agreement (such as in the Appendices, Order Form or the statements of work hereunder), shall have the meanings ascribed to them in the table below, unless the context clearly suggests and requires otherwise.
“Affiliate”
means any legal entity which is directly or indirectly owned or controlled by a Party or directly or indirectly owning or controlling a Party or under the same direct or indirect ownership or control as a Party for so long as such ownership or control lasts (where ownership or control shall exist through direct or indirect ownership of more than fifty (50%) percent of the nominal value of the issued equity share capital or of more than fifty (50%) percent of the voting rights entitling to vote for the election of directors or persons performing similar functions or right by any other means to elect or appoint directors or persons who collectively can exercise such control).
“Applicable Term”
means the term of Services stated in an Order Form.
“Authorized User”
means an individual who is an employee or agent of the Customer, or a Customer Affiliate, as the case may be, and who is allocated privileges to use the Services. Authorized Users may also include, inter alia, the Customer’s or the Customer’s Affiliate’s agents, contractors, and/or professionals provided that (i) they use the Services for the sole benefit of the Customer (or the Customer Affiliate, as the case may be) under the terms of this Agreement, and (ii) they are under obligation of non- disclosure substantially similar as the confidentiality terms in Section 13. The Customer shall at all times be and remain fully responsible for any and all acts and omissions of all such Authorized Users.
“Change of Control”
means (a) the consolidation or merger with or into any entity (other than the consolidation or merger with an Affiliate in which the Party is the surviving entity), (b) the sale, transfer or other disposition of all or substantially all of the assets, or (c) the acquisition by any entity, or group of entities acting in concert, of beneficial ownership of more than 50 percent (or such lesser percentage that constitutes control) of the outstanding voting securities or other ownership interests.
“Confidential Information”
means any material and/or information, regardless of whether technical, financial, or commercial in nature, received in whatever form from the Disclosing Party or from any third party acting on the Disclosing Party’s behalf and marked as confidential, or that should be understood to be confidential given the nature of the material and/or information and the circumstances of disclosure.
“Customer Data”
means information that the Customer provides for loading, storage, or processing using the Services and such output of the Services as results from the operation of the Services on that data.
“Demarcation Point”
means the outermost point on Root Signals’ network perimeter with the public Internet (either primary or failover).
“Force Majeure Event”
means an unforeseeable event and the effects thereof, if and only to the extent that such event is not caused by, and the effects are beyond the control of, the Party facing the event and which such Party could not have taken into account at the time of the conclusion of this Agreement or the relevant Order Form or a statement of work and the consequences of which could not reasonably have been avoided or overcome by such Party (for example, but not limited to, war or civil war (whether declared or undeclared) or armed conflict, invasion and acts of foreign enemies, blockades and embargoes, civil unrest, commotion or rebellion, any act, or credible threat, of terrorism, strikes, lockouts or boycotts may constitute a Force Majeure Event).
“Order Form”
means a Root Signals ordering document, which may include, inter alia, information including the number of Authorized Users, Applicable Term, and fees, which is executed and delivered by the Parties, respectively.
“Appendix”
means a document attached to this Agreement, any Order Form, or a statement of work and such other documents expressly referred to in this Agreement, any Order Form or a statement of work.
“Services”
means the Root Signals’ software-as-a-service platform.
“Support Services”
means the then current support services as specified in Support Services and Service Levels documentation, as valid from time to time, found at [insert link].
“Update”
means a release, version, or bug fix with respect to the Services that Root Signals makes available to its customers in general at no additional charge in excess of the service fees for the applicable Services. Updates do not include any Services, software, solutions, or products that Root Signals offers separately.
2.1
Root Signals will, during the Applicable Term, make available to the Customer the Services at the Demarcation Point according to the service levels stated in the Support Services, solely for the internal business operations of Customer and the Customer Affiliate(s).
2.2
The Customer may, during the Applicable Term, make available the Services to Authorized Users solely for the internal business operations of Customer and the Customer Affiliate(s). In addition, for those parts of Services that are explicitly intended for development and deployment of software access points to external users, such use is not restricted to the Customer and the Customer Affiliates, but the Customer shall be and remain fully liable for the use of the Services by such external users, as for the Customer’s own. For the avoidance of doubt, if an entity ceases to be a Customer Affiliate, the right of Customer to permit such entity, or its Authorized Users, to use the Service(s) will terminate immediately and automatically upon the cessation of such entity being a Customer Affiliate.
2.3
The Customer may allocate and reallocate, and permit Customer Affiliate to allocate and reallocate, the Authorized Users between the Customer and the Customer Affiliates, provided that the frequency and/or nature of such allocation and/or reallocation does not have the effect of permitting more than the number of Authorized Users to use the Services.
2.4
The Customer will be liable to Root Signals for all acts or omissions of any and all Customer Affiliates and/or any and all Authorized User that would, if committed or omitted by Customer, be a breach of this Agreement.
3.1 General
In connection with the performance of the Services pursuant to the Agreement, Root Signals shall process the Customer’s personal data. In this regard, the Customer acts as the controller and Root Signals is the processor who processes the personal data on behalf of and under the instructions of the Customer. The Customer provides all its instructions regarding the processing of personal data in this Section 3 (Processing of Personal Data). The terms used in this Section 3 (Processing of Personal Data) shall have the same meaning as the corresponding terms under the General Data Protection Regulation (2016/679/EU) (“GDPR”).
3.2 Description of Processing
Root Signals shall process the personal data only for the purposes and obligations set out in this Agreement and during the Applicable Term. This Section 3 (Processing of Personal Data) sets out the nature and purposes of the processing. The categories of data subjects whose data is processed are the users of the Services. The categories of personal data processed are: usernames, email addresses, data inputted by users into the Services, and metadata describing the use of the Services by the users.
3.3 Root Signals’ General Obligations
Root Signals shall process the personal data in accordance with the data protection legislation and this Agreement. Root Signals shall notify the Customer of any requests from data subjects and supervisory authorities regarding the processing of personal data under this Agreement. Root Signals shall not use or otherwise exploit the personal data of the Customer for any purpose other than the purposes set out in this Agreement and only to the extent necessary for such purpose. Root Signals shall, at the Customer’s choice, either delete or return the personal data to the Customer upon the termination of the Agreement, unless otherwise required by the GDPR or data protection legislation.
3.4 Root Signals’ Assistance Obligations
Root Signals shall assist the Customer in responding to requests from data subjects and supervisory authorities regarding the processing of personal data under this Agreement. Root Signals shall assist the Customer in complying with the requirements of the GDPR relating to security, data breaches, data protection impact assessments and prior consultations. Root Signals has the right to invoice, and the Customer is obliged to pay for the performance of these Section 3.4 assistance obligations.
3.5 Security
Root Signals shall take appropriate technical and organizational measures to protect the personal data from unauthorized access and loss or any other unlawful processing.
3.6 Personal Data Breaches
Root Signals shall notify the Customer of any personal data breaches without undue delay after becoming aware or having a reasonable suspicion of such breach. Root Signals shall cooperate with the Customer in the investigation of the breach and shall assist the Customer in preparing the notification to the supervisory authority.
3.7 Subcontractors
Root Signals has the right to use subcontractors in the processing of personal data in accordance with this Agreement. By signing the Agreement, the Customer accepts the use of subcontractors listed in https://rootsignals.ai/gdpr-subcontractors. Root Signals can notify the Customer of new subcontractors, by updating the list of subcontractors, and thereby giving the Customer an option to object to the use of the notified subcontractor. The Customer is deemed to have accepted the notified subcontractor, unless the Customer provides Root Signals with a written objection within fourteen (14) days from Root Signals’ having updated the list of subcontractors. Root Signals shall ensure that the subcontractors are committed to fulfilling the obligations set out in this Section 3 (Processing of Personal Data).
3.8 International transfers of personal data
Root Signals may process or transfer personal data to a sub-processor for processing outside the European Economic Area, if Root Signals ensures that, insofar as it processes or transfers personal data outside the European Economic Area, the international transfers comply with the requirements of Chapter V of the GDPR.
3.9 Auditing
The Customer has the right to audit Root Signals’ actions and data related to the processing of personal data in order to ensure that Root Signals has fulfilled its obligations under this Section 3 (Processing of Personal Data). The Customer shall notify Root Signals of the audit no less than thirty (30) days in advance.
4.1
Except as expressly permitted by this Agreement, Customer may not, and may not allow any Customer Affiliate, and Authorized User, or any third party to
(a) decompile, disassemble, decrypt, or reverse-engineer the Services or any part thereof,
(b) remove any product identification or proprietary-rights notices from any of the Services,
(c) sell, lease, lend, or otherwise make available the Services or any part thereof to a person other than a Customer Affiliate or Authorized User as permitted by Section 2.2, except for those parts of Services that are explicitly intended for development and deployment of software access points to external users as defined by Section 2.2,
(d) use the Services or any part thereof for the benefit of any person other than Customer or a Customer Affiliate, whether for timesharing, service bureau, or other purposes,
(e) modify, or create derivative works of, the Services or any part thereof (it being understood that mere configuration of a Services is not a modification or the creation of a derivative work),
(f) use any virtual session, automated process, scheme by which multiple natural persons use the Services or any part thereof, or any other means (including, but not limited to, artificial intelligences) to make greater use of the Services or any part thereof than is permitted under the user privileges specified in this Agreement and/or the applicable Order Form,
(g) otherwise use the Services or any part thereof except as expressly provided for in this Agreement.
4.2
Root Signals shall be entitled to audit, and on a continuous basis, analyse the Customer’s usage of the Services. In case the actual use of the Services exceeds the Customer’s Authorized User permissions (as specified in the applicable Order Form), Root Signals will notify Customer and Customer shall within thirty (30) days thereafter either
(a) rectify such unpermitted excess use, or
(b) purchase the additional Authorized Users corresponding to Customer’s actual use of Authorized Users.
5.1
Root Signals may provide to the Customer Support Services, as specified in Order Schedule 2.at [insert link].
The Applicable Term shall commence as specified on each Order Form and continue for the period as specified therein.
7.1
Root Signals shall reserve the right for a planned maintenance break of eight (8) hours at the time maximum four (4) times a month. Root Signals limits the effect of the maintenance breaks outside business hours and tries to keep those within Saturday 15:00 EET (Easter European Time) – Sunday 15:00 EET (Eastern European Time) time window. Root Signals shall inform the Customer minimum seven (7) days in advance. In case of immediate need, Root Signals reserves the right for unplanned maintenance breaks and informs Customers regarding these without undue delay.
7.2
Root Signals shall have the right to suspend the Services due to a data security risk related to the Services, or if required by law or regulation by authorities or due to a Force Majeure Event. If Root Signals suspends the Services as specified in this Section 7.2, Root Signals shall inform the Customer of the suspension of the Services and of the estimated duration thereof in advance or, if this is not reasonably possible, without delay after Root Signals has become aware of such matter.
7.3
Root Signals shall have the right to deny the Customer’s access to the Services without prior notice to the Customer, if Root Signals justifiably suspects that the Customer (or the Customer Affiliate(s), as the case may be) burdens or uses the Services in a manner that compromises the Services to other users. Root Signals shall without undue delay inform the Customer of the reasons for such denial.
8. TERMINATION
8.1
Either Party may terminate the applicable Order Form(s) for cause upon notice to the other Party in writing if
(a) the other Party materially breaches this Agreement, including but not limited to any breach by the Customer of Section 14.9, and fails to remedy such material breach within thirty (30) days after the non-defaulting Party gives written notice of such breach (it being understood that, if the breach is incapable of remedied, no such thirty (30) day remedy period will apply), or
(b) the other party becomes unable generally to pay its debts as they become due, ceases to do business in the ordinary course, or dissolves, winds up, or its governing body approves such dissolution or winding up.
Termination in accordance with this Section 8.1 is not an exclusive remedy.
8.2
Either Party may terminate this Agreement, and/or the applicable Order Form(s), for convenience upon thirty (30) days prior notice to the other Party in writing without either Party incurring any liabilities if an event of Change of Control occurs in respect of either Party.
8.3
Upon expiration or termination for any reason of this Agreement or the applicable Order Form
(a) all of the Customer’s rights and use of the Services will immediately cease, and
(b) Root Signals will, at Customer’s request made at any time prior to the 10th calendar day after the effective date of termination, provide to Customer, in industry-standard electronic form, a copy of such Customer Data using the Services as Root Signals then holds in its possession.
8.4
If Customer terminates this Agreement under Section 8.1, Root Signals will refund to Customer any prepaid fees that Customer has by then paid but that Root Signals has not earned, whether by performance or passage of time.
9.1
Root Signals provides, during the Applicable Term, a limited warranty for the Services.
9.2
The warranty in Section 9.1 will not apply, and will automatically expire, if
(a) the Services are not used in strict compliance with this Agreement, or
(b) the Services or any part thereof has been modified other than by Root Signals or with Root Signals’ explicit prior written approval.
9.3
In order to invoke the warranty in Section 9.1 and claim any benefit thereunder, the Customer must without undue delay upon discovery thereof notify Root Signals in writing of the non-conformity and provide to Root Signals with requisite details of the non-conformity to allow Root Signals to reproduce the non-conformity.
9.4
TO THE MAXIMUM EXTENT PERMITTED BY LAW, ROOT SIGNALS’S SOLE AND EXCLUSIVE LIABILITY FOR ANY BREACH OF THE WARRANTY IN SECTION 9.1 SHALL BE LIMITED TO REPAIR OR REPLACEMENT OF THE SERVICES, UNLESS, IN ROOT SIGNALS’ SOLE OPINION, SUCH REPAIR OR REPLACEMENT WOULD BE INADEQUATE OR IMPRACTICAL, IN WHICH CASE ROOT SIGNALS WILL REFUND ANY PREPAID SERVICE FEE THAT CUSTOMER HAS PAID BUT THAT ROOT SIGNALS HAS NOT EARNED, WHETHER BY PERFORMANCE OR PASSAGE OF TIME AND CUSTOMER WILL THEREUPON CEASE ALL USE OF THE SERVICES AND THIS AGREEMENT AS WELL AS THE APPLICABLE ORDER FORMS WILL TERMINATE.
9.5
TO THE MAXIMUM EXTENT PERMITTED BY LAW, EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, INCLUDING BUT NOT LMITED TO AS SPECIFIED IN SUPPORT SERVICES
9.5.1
ROOT SIGNALS DOES NOT WARRANT THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE,
9.5.2
ROOT SIGNALS EXPRESSLY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, AND MAKES NO WARRANTY FOR MERCHANTABILITY, ACCURACY, OR FITNESS FOR PURPOSE.
9.6
For the avoidance of any doubt, the Customer expressly acknowledges and agrees that the Services operate utilizing public networks, including but not limited to the internet, which is not under the control of Root Signals and is inherently insecure. Root Signals makes no representations, warranties, or guarantees of any kind, express, implied, statutory, or otherwise, verbal or written, with respect to the performance or security of any public network, including but not limited to, the services of the cloud infrastructure provider used by Root Signals in conjunction with the provision of the Services.
10.1
Root Signals will indemnify, defend, and hold harmless the Customer and each Customer Affiliate from any claim by a third party that the Services infringe upon that third party’s patent, copyright, or trademark, or misappropriates that third party’s trade secret in the agreed country of use, which unless otherwise agreed in writing shall be Finland, provided that
(a) the Customer gives to Root Signals prompt written notice of the claim,
(b) the Customer and each Customer Affiliate give to Root Signals control of the defence and/or settlement of the claim and all reasonably requested assistance in conducting such defence and/or settlement, where Root Signals will reimburse all reasonable out-of-pocket expenses incurred by Customer in providing such assistance.
Root Signals will not, without the Customer’s written consent (which consent the Customer may not unreasonably withhold) enter into any settlement agreement that involves any substantive term other than the payment by Root Signals of money and the release of the liability of the Customer.
10.2
Root Signals shall, however, not be liable under Section 10.1 if the claim
(a) arises out of, or relates to goods, services, or software not supplied by Root Signals under this Agreement (including but not limited to, third-party solutions, services and/or products (ref. Section 14.17 below)),
(b) arises out of, or relates to use of the Services in a manner not expressly authorized by this Agreement,
(c) arises out of, or relates to customizations, modifications, alterations of or changes to the Services (other than mere configuration) not approved in writing in advance by Root Signals,
(d) arises out of, or relates to combination of the Services with other goods, services, processes, or software (including but not limited to, third-party solutions, services and/or products (ref. Section 14.17 below)), where the alleged infringement would not exist, but for such combination,
(e) arises out of, or relates to the Customer’s continuation of the allegedly infringing activity after being notified thereof by Root Signals, and/or
(f) is asserted by Customer Affiliate.
10.3
If the Services infringe upon a third party’s proprietary right or if Root Signals reasonably believes that the same is likely to occur, Root Signals may, at its option (in addition to, and not in lieu of, Root Signals’ obligations under Section 10.1),
(a) procure for the Customer the right to continue the use of the Services in accordance with this Agreement,
(b) provide a modification to the Services so that its use becomes non-infringing,
(c) replace the Services with a non-fringing software that is substantially similar in functionality and performance.
If none of the options (a) through (c) are not in Root Signals’ opinion available to Root Signals on commercially reasonable terms, then the Customer shall at the written request of Root Signals cease using the Services and this Agreement will automatically terminate at the time of such written notice, in addition to which Root Signals shall refund to the Customer any service fees pertaining to the period of time after such automatic termination that customer has paid, but that Root Signals has not earned, whether by performance or passage of time.
10.4
Sections 10.1 through 10.3 state Root Signals’ sole obligation, and the Customer’s exclusive remedy, for any third-party claim of infringement, violation, or misappropriation of intellectual property or other proprietary rights.
10.5
The Customer will indemnify, defend, and hold harmless Root Signals from any claim by a third party that any software or Customer Material uploaded or used by Customer in or in connection with the Services, infringes upon a third party’s patent, copyright, or trademark, or misappropriates a third party’s trade secret, provided that:
(a) Root Signals gives to the Customer prompt written notice of the claim, and
(b) Root Signals gives to the Customer control of the defence and/or settlement of the claim and all reasonably requested assistance in conducting such defence and/or settlement, where the Customer will reimburse all reasonable out-of-pocket expenses incurred by Root Signals in providing such assistance.
The Customer will not, without Root Signals’ written consent (which consent Root Signals may not unreasonably withhold) enter into any settlement agreement that that involves any substantive term other than the payment by the Customer of money and the release of the liability of Root Signals.
11.1
Each Party (for the purposes of this Section 11, the “Receiving Party”) shall keep in strict confidence all Confidential Information received from the other Party (for the purposes of this Section 11, the “Disclosing Party”).
11.2
The Receiving Party may not
(a) use the Disclosing Party’s Confidential Information for any other purposes than for the fulfilment of the Agreement,
(b) copy the Disclosing Party’s Confidential Information other than to the extent absolutely necessary for the purposes of the Agreement, and
(c) furnish, disclose, or grant access to, the Disclosing Party’s Confidential Information to its or its subcontractors’ employees, except in confidence to those members of its and its subcontractors’ personnel for whom such information or access thereto is necessary for the proper performance of the Agreement, and who are obliged by their contracts of employment or service or otherwise to keep such information in confidence.
11.3
Confidential Information shall not include material and information
(a) that is or becomes public knowledge, otherwise generally available, or otherwise public, other than as a result of such material or information being disclosed in breach of the Agreement,
(b) in respect of which the Receiving Party can establish that the material and/or information was already lawfully in the Receiving Party’s possession at the time of disclosure, and the same was not subject to any other obligation of confidentiality owed directly or indirectly to the Disclosing Party,
(c) in respect of which the Receiving Party can establish that the same was disclosed to the Receiving Party without breach of any obligation of confidentiality by a third party, which third party, to Receiving Party’s knowledge, did not obtain such material and/or information, directly or indirectly, from the Disclosing Party,
(d) that the Receiving Party has independently developed without using the Disclosing Party’s Confidential Information (i.e., by personnel having no access to the Confidential Information), as proven by its written contemporaneous records, or
(e) that is specifically identified at the time of delivery as non-confidential by the Disclosing Party.
11.4
Affiliate(s) of a Party hereto engaged in the performance of the Agreement shall not be deemed to be third parties for purposes of this Section 11 on the condition that disclosure of the Confidential Information occurs on a need-to-,know basis only and that the respective Party ensures full compliance by such Affiliate(s) of all of the provisions of this Section 11.
11.5
The Receiving Party shall immediately cease using the Disclosing Party’s Confidential Information and, unless separately agreed on the destruction of the Confidential Information, return the Confidential Information and all copies thereof upon written request of the Disclosing Party or when the Receiving Party no longer needs the Confidential Information in question for the purposes of the Agreement. The Receiving Party shall, however, be entitled to retain such copies of the Disclosing Party’s Confidential Information as are required by law or regulations issued by authorities. Furthermore, the obligation to destroy or return all copies of the Disclosing Party’s Confidential Information shall not apply to copies of electronically exchanged Confidential Information made by the Receiving Party as a matter of routine information technology backup. However, the confidentiality and non-use obligations set out herein shall continue to apply to such retained Confidential Information.
11.6
This Section 11 shall not restrict the Receiving Party from using the professional skills and experience acquired in connection with this Agreement, provided that the Receiving Party shall maintain the confidentiality of the Disclosing Party’s Confidential Information.
11.7
Because unauthorized use or disclosure of Confidential Information might result in immediate and irreparable injury to the Disclosing Party, for which monetary damages might not be adequate, if the Receiving Party or any officer, director, employee, agent, professional, or contractor of the Receiving Party uses or discloses Confidential Information or any such person is likely to use or disclose Confidential Information in breach of the Receiving Party’s obligations under this Agreement, the Disclosing Party will be entitled to seek equitable relief, including but not limited to, temporary and permanent injunctive relief and specific performance. The rights in this Section 11.7 are in addition to any other rights of the disclosing party under this Agreement, at law, or in equity.
11.8
The provisions of this Section 11 replace, pre-empt, and supersede, any confidentiality agreement, nondisclosure agreement, or similar agreement between the Parties and/or their affiliates that existed prior to, or on, the day the Customer accepted the terms of this Agreement.
12.1
Root Signals shall own all rights, title, and interest in, and all copyrights, patents, trademarks, or other intellectual property or other proprietary rights in (i) the Services (and each component thereof) and all derivatives, improvements, enhancements, or modifications thereto, and (ii) any software, applications, inventions or other technology developed by Root Signals or a third party on behalf of Root Signals in connection with the Services.
12.2
The Customer shall own all rights, title, and interest in, and all copyrights, patents, trademarks, or other intellectual property or proprietary rights in, the Customer Data, including but not limited to, the derivative works created thereof in connection with the use of the Services. The Customer shall have the right to access the Customer Data during the Applicable Term as specified in the Support Services.
13.1
To the maximum extent permitted by law, except in the case of Root Signals’ gross negligence, wilful misconduct, fraud, regardless of the basis of recovery claimed, whether under contract tort, negligence, strict liability, or other theory
13.1.1
ROOT SIGNALS’S AGGREGATE LIABILITY WITH RESPECT TO THIS AGREEMENT WILL BE LIMITED TO THE AMOUNT OF FEES PAID BY CUSTOMER FOR THE LAST SIX (6) MONTHS OF THE SERVICES (OR, IF SIX (6) MONTHS HAVE NOT BY THEN PASSED, THE AMOUNT THAT WOULD HAVE BEEN PAYABLE HAD THE TERM OF THIS AGREEMENT RUN FOR SIX (6) MONTHS), AND
13.1.2
ROOT SIGNALS SHALL HAVE NO LIABILITY FOR LOSS OF PROFITS, DAMAGES ARISING OUT OF COVER PURCHASE, OR FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES.
13.2
The limitations of liability specified in this Section 16 apply notwithstanding that Root Signals knows, or has reason to know, of the possibility of any particular kind of damages or that such limitations cause a failure to achieve its essential purpose.
13.3
This Section 13 constitutes the Parties’ entire and exhaustive liability for damages under, arising out of, relating to or otherwise or in connection with this Agreement.
14. 1 Governing Law
This Agreement and any dispute, claim or controversy arising out of or relating to this Agreement, or the breach, termination, or validity thereof, are exclusively and exhaustively governed by and construed in accordance with the laws of Finland without regard to its principles and rules on conflict of laws. The United Nations Convention on Contracts for the International Sale of Goods as well as the Finnish Sale of Goods Act (statute no. 355/1987, as amended) are specifically excluded from application to this Agreement.
14.2 Dispute Resolution
14.2.1
Any dispute, controversy or claim arising out of or relating to this Agreement, or the breach, termination, or validity thereof, 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, Finland. The language of the proceedings shall be English. However, evidence may be submitted, and witnesses may be heard in Finnish, if the arbitral tribunal deems it appropriate.
14.2.2
Notwithstanding the above, the Parties shall also be entitled to seek injunctive or other interim relief in relation to a breach of the Agreement in the general courts of Finland.
14.3 Notices
Any notice required or permitted to be given under this Agreement must be in writing (notices given by email shall be considered to be given in writing) and will be effective
(a) if given by nationally recognized courier or mail service (in either case that has real-time or near real-time tracking), at the time that the notice is delivered (or an attempt is made to deliver the notice, regardless of whether refused) to the receiver’s premises according to the tracking records of the courier or mail service, or
(b) if by e-mail, when sent, provided that sender receives no indication within four hours after sending that the e-mail message failed to reach the receiver.
The addresses for notice are those in specified in the applicable Order Form. Either party may change its notice address by providing notice to the other party.
14.4 Use of Data
Root Signals may collect, use, and disclose data derived from the use of the Services for product development, performance, management, and improvement purposes, provided that any such data is either aggregated upon collection or anonymized (i.e., not containing any personal data), and therefore not identifiable as about the Customer, or containing Customer Data or Confidential Information.
14.5 Anti-Bribery and Anti-Corruption
Each party will, and will cause its employees, directors, and officers (and, in the case of Customer, its Customer Affiliate and Authorized Users) to comply with all applicable laws, statutes, and regulations relating to anti-bribery and anti-corruption (“Anti-Bribery Law”). The parties shall not engage in any activity, practice, or conduct which would violate an Anti-Bribery Law. Each party shall have, maintain, and enforce, throughout the term of this Agreement, its own policies, and procedures to ensure compliance with the Anti-Bribery Laws. For the avoidance of any doubt, any amounts paid by Customer under this Agreement will be for the Service and/or other fees incurred in accordance with this Agreement. Each party will not, and will cause its Customer Affiliate, employees, directors, and officers to not, accept bribes or kickbacks in any form. Each party will be liable to the other party for any breach by its respective, employees, directors, officers, Customer Affiliate, or subcontractors of any Anti-Bribery Law.
14.6 Transfer and Assignment
Neither party may transfer and/or assign any right or obligation under this Agreement. Notwithstanding the foregoing, either Party may assign all, but not less than all, of its rights and obligations under this Agreement
(a) to any Affiliate of the Party, or
(b) in connection with a public offering or with the sale, acquisition, or merger of all or substantially all of the party’s business, assets, or equity.
14.7 Severability
14.7.1
If any part or any provision of this Agreement is or becomes invalid, illegal, or unenforceable, the Parties shall negotiate in good faith and attempt to amend such provision so that, if and when amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
14.7.2
If such modification is not possible, the relevant provision shall be deemed deleted. Any modification to or deletion of a provision in accordance with this Section 14.7 shall not affect the validity and enforceability of the rest of the Agreement.
14.8 No Waiver
No failure or delay by a party to exercise any right or remedy provided under the Agreement or by applicable laws shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
14.9 Import/Export Restrictions
14.9.1
The Customer explicitly acknowledges and agrees that the Service may be or become subject to laws, restrictions, and regulations that may govern the import, export, and use of the Service (“Export Laws”). The Customer agrees to comply with Export Laws that apply to the Customer’s use of the Service.
14.9.2
The Customer also agrees not to grant access to or provide the Services, including but not limited to, any third-party solutions, services and/or products or technical information to a third party, if doing so would constitute a violation of the applicable Export Laws.
14.9.3
Without limiting the Customer’s payment obligations, the Customer shall not make any payments to Root Signals using a sanctioned financial institution.
14.10 Successors and Assigns
The provisions of this Agreement shall be binding upon and inure to the benefit of the Parties and their permitted successors and assigns.
14.11 Surviving Provisions
Those Sections that by their nature are intended to survive the expiry or termination of this Agreement, will so survive.
14.12 Force Majeure
14.12.1
The Party facing the Force Majeure Event shall be excused of performance, and any liability for non-performance, of the affected contractual obligations if and to the extent prevented by a Force Majeure Event, for the duration of the Force Majeure Event. A Force Majeure Event suffered by a subcontractor of Root Signals shall also discharge such Root Signals from liability if subcontracting from other source cannot be made without unreasonable costs or a significant loss of time.
14.12.2
When a Force Majeure Event prevents a Party from complying with any of its obligations under the Agreement, such Party must notify the other Party thereof without undue delay. Similarly, upon the cessation of the Force Majeure Event, the Party facing the Force Majeure Event must promptly notify the other Party of such cessation and resume performance of the affected obligations without undue delay.
14.12.3
Neither Party shall be liable for costs or expenses of the other Party arising out of a Force Majeure Event.
14.13 Entire Agreement
The Agreement represents and constitutes the entire understanding and agreement between the Parties with respect to the subject matter of this Agreement and this Agreement expressly supersedes and cancels any prior or contemporaneous representations, warranties, and/or agreements, whether verbal or written, with respect to the subject matter of this Agreement. No additional or conflicting term in any purchase order, other document, or procurement system will have any effect even if Root Signals may have accepted and processed such forms as an administrative convenience to the Parties without being deemed to have accepted any such additional or different terms.
14.14 Amendments
Any amendment to this Agreement shall be in writing and shall have no effect before signed by duly authorized representatives of both Parties.
14.15 Relationship
Each Party is and shall act as an independent contractor to the other Party and nothing in this Agreement shall be construed to give rise to any exclusive or non-exclusive relationship of partnership, joint venture, or agency between the Parties for any purpose whatsoever or entitle a Party to assume or create any obligation or responsibility, express or implied, on behalf of the other Party.
14.16 Expenses
Each Party shall bear all of its own costs and expenses incurred in connection with the execution of this Agreement.
14.17 Disclaimer Regarding Third-Party Services, Solutions and/or Products
ALL THIRD-PARTY SERVICES, SOLUTIONS AND/OR PRODUCTS OFFERED THROUGH ROOT SIGNALS AND/OR IN CONJUNCTION WITH THE SERVICES SHALL BE AND REMAIN EXCLUSIVE SUBJECT TO AND GOVERNED BY THE APPLICABLE THIRD-PARTY TERMS THAT ARE ASSOCIATED WITH SUCH THIRD-PARTY SERVICES, SOLUTIONS AND/OR PRODUCTS, AS APPLICABLE, AND ARE PROVIDED BY ROOT SIGNALS ON AN “AS-IS” BASIS WITH NO WARRANTY OR LIABILITY OF ANY KIND, INCLUDING BUT NOT LMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE OR NON-INFRINGEMENT. ROOT SIGNALS DOES NOT SUPPORT THIRD-PARTY SERVICES, SOLUTIONS AND/OR PRODUCTS AND FURTHER DISCLAIMS ANY AND ALL WARRANTIES, REPRESENTATIONS, LIABILITIES, AND ANY OTHER OBLIGATION FOR THEM TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. IT IS IN THE CUSTOMER’S SOLE DISCRETION WHETHER OR NOT TO ACCESS THIRD-PARTY SERVICES, SOLUTIONS AND/OR PRODUCTS BASED ON THE FOREGOING.
Appendix 1
The following defined terms are in addition to other defined terms in the Agreement.
“Available”
means that the production instance of the Services can be accessed by Authorized Users during a calendar month, excluding Scheduled Downtime, and “Availability” shall be construed accordingly.
“Base Location”
means Finland unless specified otherwise in the Order Form.
“Business Day”
means, as opposed to calendar days, Monday to Friday except for public holidays in Finland.
“Business Hours”
means 9:00 am to 5:00 pm on Business Days in the Base Location or
“Scheduled Downtime”
means such time as Root Signals designates with no less than seventy-two (72) hours’ prior notice, such time to occur between 10:00 pm EET (European Eastern Time) Saturday and 10:00 pm EET (European Eastern Time) on the next succeeding Sunday and a maximum of twenty-four (24) hours during any calendar month.
2.1 Online Support
2.1.1
Root Signals will provide to Customer, by web session technical assistance and general support of the Services, such as providing guidance and isolating, documenting, and finding workarounds for problems or error messages. Online support will be provided on a best effort basis, at minimum during the Business Hours.
2.1.2
Root Signals will provide to Customer access to Root Signals support systems such as one or more support portals and the ability to create support requests on a 24/7 basis. For all support requests the Customer must specify (with requisite details) the initial severity level (see Table 1). In case (i) the Customer fails to specify the initial severity level, (ii) the Customer fails to provide the requisite details for Root Signals to verify and confirm the initial severity level, or (iii) Root Signals disagrees with the Customer specified initial severity level, the Root Signals may in its sole and absolute discretion determine the severity level in question.
2.1.3
Online support is limited to six (6) named resources of the Customer.
2.2 Updates
When Root Signals makes available an Update, it will post information about the availability, timing, and release notes with respect to such Update by such means (e.g., but not limited to, a Root Signals portal) as it then uses to communicate such information to its users generally. Root Signals will install and configure each Update as and when Root Signals makes the same available to similarly situated users generally.
2.3 Exclusions
Root Signals’ obligations to provide the Support Services will be excused and Root Signals shall not be liable for failure of the Availability if the failure of the Services is caused by
(a) use of the Services other than in strict compliance with the Agreement, or
(b) the Customer’s failure to accept an Update offered by Root Signals.
3.1 Availability Requirement
3.1.1
Root Signals will make production (i.e., not development, test, sandbox, non-production, or pre-release) instances of the Services Available at least 99.9 % of the time each full calendar month during the Applicable Term other than during Scheduled Downtime (the “Availability Objective”).
3.1.2
Failure of Availability begins upon the Customer opening a support ticket for the lack of Availability and ends when Root Signals restores Availability.
3.2 Support Service Response
Root Signals will provide support services in accordance with Table 1.
3.3 Service Level Failure and Service Credit
If Root Signals fails to meet the applicable Availability Objective (a “Non-Availability Event”) Root Signals will give to Customer a Service Level Credit as follows
(a) no Service Level Credit will be given for the first Non-Availability Event during any rolling six (6) month period,
(b) for the second Non-Availability Event during the same rolling six (6) month period, a Service Credit of ten percent (10 %) of the fees for the calendar month during which the second Non-Availability Event occurred, and
(c) for the third Non-Availability Event during the same rolling six (6) month period, a Service Credit of twenty percent (20 %) of the fees for the calendar month during which the third Non-Availability Event occurred.
3.4 Administration of Service Credits
3.4.1
Customer must report the Non-Availability Event to Root Signals promptly on becoming aware of it, by opening a support ticket.
3.4.2
Customer must request such Service Credit within thirty (30) calendar days after the Non-Availability Event.
3.4.3
Any Service Credits payable to the Customer will be issued to Customer on the invoice following receipt by Root Signals of the request and confirmed by Root Signals that the Non-Availability Event was attributable to and subject to the liability of Root Signals.
3.4.4
For the avoidance of any doubt, the Parties explicitly acknowledge and agree that the Service Credits are Customer’s sole and exclusive remedy, and Root Signals’ sole obligation, with respect to Non-Availability Events attributable to Root Signals.
