Kemppi Oy General Terms and Conditions for Welding Management System
1. Scope of general terms and conditions
- These Kemppi General Terms and Conditions shall apply to the supply and provision of all products and Services by Kemppi Oy (“Kemppi”) or together with Kemppi Affiliate (Kemppi alone or together with Kemppi Affiliate the “Supplier”).
- All offers and other statements by the Supplier shall be without obligation, unless the Supplier expressly indicates otherwise in writing. The Customer warrants the accuracy and completeness of the measurements, requirements, performance specifications and other data on which the Supplier bases its offer and which have been stated by or on behalf of the Customer to the Supplier.
- The application of the Customer's purchasing or other terms and conditions is expressly rejected and void.
- The Customer will be responsible for the selection, the use and proper application, including the interoperability, in and for his organization of the Software (including possible Customized Software) and of the Services to be provided by the Supplier. The Customer is also responsible for adequate data security. The Data security shall include the organizational measures required to protect the data.
- The Supplier shall be entitled to use and/or enter into other arrangements with subcontractors and/or sub-suppliers and/or licensors to provide Deliverables, Cloud Service or other Services as well as the Activation to the Customer.
- The risk of loss or damage to the hardware shall pass from the Supplier to the Customer in accordance with the terms of delivery. The Supplier has the right to update WeldEye (as specified in Section 2 hereunder) remotely (including but not limited to any firmware included in the hardware provided by the Supplier). The Supplier has the right to decide the timetable for these Updates, provided that the Supplier notified the Customer in advance.
Unless otherwise defined in the Agreement, the following terms shall have the meanings set forth below:
- “Activation” means the Supplier’s services to activate the Cloud Service in the agreed scope as specified in the Agreement.
- “Authorship Works” means any works of authorship, whether based on any pre-existing works of the Supplier or not, which are created by or on behalf of the Supplier including but not limited to the Software, the Customized Software, Enhancements, Updates and the Documentation, in whatever form the work may be remodeled, transformed or adapted, including translations, ports and screen reformatting.
- “Cloud Service” means the service, which may be standard or customized, made available through an Internet connection arranged by the Customer through which the Supplier provides and makes WeldEye available to the Customer upon Activation as well as provide thereto-related Services.
- “Confidential Information” shall mean confidential information as specified in Section 7.
- “Current Release” means the latest version of the Software offered by the Supplier for general commercial distribution, including all Updates and Enhancements to it.
- “Customization” means any modification of or amendment to the Software provided by the Supplier under the Statement of Work or other relevant agreement. Setting of parameters or parameterization is not a customization.
- “Customized Software” means the Software code modified or amended by the Supplier for the Customer in accordance with a Statement of Work or other relevant agreement and licensed to the Customer under the Agreement.
- “Deliverables” means Software, Customized Software, Updates, Enhancements, Current Releases, integrations, Documentation to be provided by the Supplier to the Customer, and which are defined in writing.
- “Designated Operating Environment” means the computer hardware and software operating systems provided from the cloud with the preconditions defined in the Product Description with which the Customer may use the Cloud Service.
- “Documentation” means the Product Description and any other documentation produced by the Supplier describing the functions of WeldEye and provided and/or made available together with the Cloud Service.
- “Effective Date” means the date when both parties have signed the Agreement.
- “Enhancements” means any software program, any part thereof, or any improvement or addition thereto, or any materials not included in the Software or Cloud Service at the time or Activation of the Cloud Service, as applicable, or that are subsequently developed by the Supplier, or on behalf of the Supplier, who modifies the Software in order to provide a function or feature not originally offered or an improvement in function relating to the Software and which are not separately priced by the Supplier and which are made on the Supplier’s initiative.
- “Intellectual Property Rights” means all rights to patents, rights to inventions, copyright and related rights, trademarks, trade names, domain names, rights in get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in Confidential Information (including without limitation know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all existing and future rights capable of present assignment, applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
- “Kemppi General Terms and Conditions” means these Kemppi General Terms and Conditions for Welding Management System, as attached to the Agreement.
- “Licensed Materials” shall mean the Software, the Third Party Products and the Documentation.
- “Price List” means the Supplier’s price list attached to the Agreement as Appendix 1.
- “Product Description” means standard documentation of the Supplier specifying standard Cloud Service.
- “Services” means any agreed services provided by the Supplier to the Customer pursuant to the Agreement, by using the Supplier’s working methods.
- “Software” means the Supplier’s Standard Application Software any other software program created by the Supplier and included in WeldEye.
- “Standard Application Software” means the Supplier’s standard application software or thereto-related software component marketed and/or licensed to several customers and the instructions or the Documentation and potential media related to the standard application software.
- ''Statement of Work'' means the document which sets out the scope of work and Services to be provided by the Supplier as separately agreed by the parties.
- “Supplier IP Protected Material” or “SIPPM” shall mean the Software, the Customized Software, the Documentation, the Cloud Service, the Authorship Works or other materials provided by the Supplier to the Customer.
- “Third Party Products” means those third party software products, including but not limited to open source software products, which are sublicensed by the Supplier to the Customer subject to the terms and conditions set forth herein and listed in the Statement of Work or in the Product Description.
- “Third Party Products Errors” means any error, fault or defect in Third Party Products.
- “Trial Deliverables” means deliverables that are provided to the Customer as is basis for mere trial purposes under a separate trial offer.
- “Updates” means program logic changes made by the Supplier to correct errors in the Software delivered under the Agreement.
- “WeldEye” means the Welding Management System specified in the Agreement.
Unless the context expressly indicates otherwise, words and phrases and all provisions contained in the Agreement shall be interpreted in accordance with the definitions contained in these Kemppi General Terms and Conditions. If any conflict of interpretation arises between the provisions contained in these Kemppi General Terms and Conditions and the Agreement, the provisions contained in the Agreement shall take precedence
3. General terms applicable to Licensed Materials and all fees & payments
3.1 Provision of Licensed Materials
The Supplier shall provide the Licensed Materials to the Customer in connection with the Activation of the Cloud Service.
The Licensed Materials may not be put into any commercial operation or production use in the Designated Operating Environment prior to the Activation (e.g., Trial Deliverables) However, in case the Customer decides to put the Licensed Material into commercial operation or decides to commence production use of the customized Cloud Service in the Designated Operating Environment before the Activation, the Supplier shall be relieved and exempted from any liability relating to such use of Cloud Service and shall not be held liable to any direct or indirect costs of the Customer which are due to the fact that the Customer has put the Licensed Materials into commercial operation and/or commenced production use of the Cloud Service in the Designated Operating Environment prior to the Activation. For the sake of clarity, the Supplier shall not be responsible for any Third Party Products Errors detected in Third Party Products possibly included in or provided in connection with the Licensed Materials or Cloud Service and such Third Party Products Errors shall be repaired by third party suppliers in accordance with their warranty and update and upgrade policies.
For the sake of clarity, the repair of Cloud Service may be done by providing a workaround or by providing the Customer with written instructions on how to bypass the error, or by providing the Customer with an Enhancement or Update in which the error is repaired or bypassed.
In case the parties have agreed on additional efforts to be taken by the Supplier related to repair of the reported errors referred to in the preceding paragraph, the Supplier may invoice from the Customer such additional expenses which the Supplier has demonstrated to result from the fact that the Customer has taken the Licensed Materials into commercial operation and/or commenced production use of the Cloud Service in the Designated Operating Environment prior to the Activation.
3.2 Fee and payments
- The currency of prices and the currency used in the Price List is EUR, unless the parties have expressly agreed otherwise in writing.
- All fees and payments due to the Supplier under the Agreement are exclusive of value added taxes or other similar sales taxes.
- The Supplier shall be entitled to charge for customary and reasonable travel and accommodation costs as well as per diem allowances separately.
- If a price for Deliverables or Services has not been agreed in the Agreement or otherwise, the price in the Supplier’s Price List effective of the date of order shall apply to the Deliverables and/or Services ordered under said order.
- The Supplier shall be entitled to charge separately in accordance with the Price List for the work that does not fall within the scope of agreed Deliverables, but is ordered by the Customer in writing. In addition, the Supplier shall be entitled to charge extra fees specified in the Price List in respect of such work, if the Customer makes a written order for work to be conducted outside the Supplier’s normal working hours. Furthermore, the Supplier shall be entitled to charge separately for additional costs incurred as a result of the provision of incorrect information by the Customer or other similar reason for which the Customer is responsible. Furthermore, the Cloud Service maintenance provided against a recurring fee does not cover Software changes or repair of an error caused by (a) use contrary to the Agreement or the written instructions given by the Supplier, (b) a non-Supplier product, or (c) a change or repair made by the Customer or a third party.
- The Supplier shall be entitled to adjust the Price List. Where a price change occurs, the Customer shall be, in case the Customer does not wish to be bound by the changed prices, entitled to terminate the Agreement on the effective date of the price change by notifying the Supplier thereof in writing.
- The Supplier will submit invoices for all fees, payments and expenses pursuant to the Agreement. The Customer agrees to pay to the Supplier on the payment due date or within thirty (30) days from the receipt of the invoice by the Customer, whichever is later.
- The Supplier shall invoice the Customer in accordance with the invoicing terms agreed upon in the Agreement. The Activation of a standard Cloud Service is considered completed by the Supplier and ready for invoicing as soon as the Supplier has made the Cloud Service available to the Customer through the Internet connection arranged by the Customer.
- Interest is payable on any fees, payments or expenses which are in arrears more than thirty (30) days at the penalty interest rate specified by virtue of the Finnish Interest Act or in case Kemppi Affiliate is the invoicing entity at the penalty interest rate specified by virtue of interest legislation of Kemppi Affiliate’s domicile. In addition, the Supplier may suspend implementation of any Statement of Work or provision of any Services under the Agreement until overdue payments have been received by the Supplier after providing the Customer written notice of its intention to suspend implementations or any other Services at least fifteen (15) days prior to the suspension.
- The grant of any license rights for the Licensed Materials or SIPPM provided to the Customer shall be subject to the explicit condition that the Customer shall pay the license and maintenance and any other Services or other fees agreed upon in full and in time.
4. Intellectual property
All Intellectual Property Rights to the Software, the Customized Software and the Documentation or other Authorship Works or materials created, developed or provided by the Supplier under the Agreement or Kemppi General Terms and Conditions, such as analyses, blueprints, designs, documentation, layouts, reports, offers, as well as preparatory materials in that regard, shall be and remain the exclusive property of the Supplier. The Customer shall only acquire the limited rights of use expressly granted in the Agreement and these Kemppi General Terms and Conditions. The Customer has no right to 1) reproduce the Supplier IP Protected Material (“SIPPM”), 2) copy or modify the SIPPM, 3) create derivative works based on the SIPPM, 4) license, sublicense, sell, resell, rent, lease, transfer, assign distribute or otherwise make the SIPPM available to any third party other than to the Customer’s authorised users (and if applicable, to the authorised users of its subsidiaries), 5) reverse engineer or decompile any portion of the SIPPM, except to the extent permitted by law, 6) access the SIPPM in order to build any commercially available product or service, or 7) copy any features, functions, integrations, interfaces or graphics of the SIPPM.
For the avoidance of doubt, the Customer’s Intellectual Property Rights which exist at the Effective Date of the Agreement shall remain vested in and be the exclusive property of the Customer. The Customer shall grant to the Supplier a free of charge, worldwide, transferable, limited right and license to any data or information or any other material protected by the Customer’s Intellectual Property Rights, which may be provided to the Supplier or be processed in WeldEye during the validity of the Agreement for the sole purpose of enabling the Supplier to act and perform in accordance with the Agreement.
4.1. Supplier's IP indemnification
Subject to the limitation of liability set out in these Kemppi General Terms and Conditions, the Supplier shall indemnify, defend and hold the Customer harmless against any direct loss, damage or expense, including reasonable attorney’s fees, incurred by the Customer as a result of claims, actions, or proceedings brought by any third party alleging infringement of such third party’s Intellectual Property Rights by the Software and/or the Documentation, and within the territories agreed under the Agreement, awarded by a competent tribunal in respect of any such claim(s) , provided, however, that
- the Customer shall have given the Supplier a prompt written notice of any such claim, demand, suit or action;
- the Customer shall co‑operate with said defense by complying with the Supplier’s reasonable instructions and requests to the Customer in connection with said defense; and
- the Supplier shall have full control over the defense of such claim, suit, demand, or action and the settlement or compromise thereof.
However, the Supplier shall have no liability whatsoever for any part of an infringement action or a claim that is based upon or arising from
- the Customer’s use of the Software, the Customized Software, the Documentation or the Cloud Service in a manner not permitted by the Agreement or without the prior written permission of the Supplier or inconsistent with the Documentation;
- the Customer’s unauthorized use of the Software, the Customized Software, the Documentation or the Cloud Service in conjunction or combination with Third Party Products or third party services not expressly approved by the Supplier;
- the Customer’s installation or use of the Software, the Customized Software, the Documentation or the Cloud Service in an environment other than the Designated Operating Environment;
- the Customer’s unauthorized modification of the Software, the Customized Software, the Documentation or the Cloud Service;
- acts of substantial negligence, fraud or wilful misconduct by any employees of the Customer, or any other persons working on behalf of the Customer, relating to the Agreement;
- code or design specifications provided by the Customer in connection with the Supplier’s performance of the Cloud Service or any other Services or in such matters which are described in Section 2 hereunder;
- an infringement or alleged infringement attributable to Third Party Products;
- the Customer’s use that could have been avoided by the use of a released product or Service that complies with the Agreement; or
- an initiative of a subsidiary of the Customer.
- If in the Supplier’s reasonable opinion the Cloud Service, Software, the Customized Software or the Documentation is likely to infringe third party’s Intellectual Property Rights or a temporary or permanent injunction is obtained against the Customer's use of the Cloud Service, Software, Customized Software or Documentation for which according to this Section 4.1 the Supplier is responsible, the Supplier shall, at its sole option and expense, either 1) procure for the Customer the right to continue use of the Cloud Service, Software, the Customized Software or the Documentation, 2) replace the Cloud Service, Software, the Customized Software or the Documentation or infringing portion thereof so that it no longer infringes the alleged proprietary right of a third party, or 3) modify the Cloud Service, Software, the Customized Software or the Documentation in order to eliminate the infringement in such manner that the modified Cloud Service, Software, the Customized Software or the Documentation materially complies with agreed specifications. If none of the foregoing options is reasonably available to the Supplier, then use of theSoftware, the Customized Software, the Documentation or the Cloud Service may be terminated at either party’s option and the Supplier’s sole liability shall be to refund any prepaid fees for use of the Cloud Service. This Section 4 sets forth the exclusive remedy of the Customer against the Supplier with respect to any action or claim described herein.
4.2 Customer’s undertakings
Customer agrees and undertakes not to:
- Use the Cloud Service or use or install the Software, the Customized Software or the Documentation in any other environment than in the Designated Operating Environment or in any other manner not permitted by the Agreement, these Kemppi General Terms and Conditions or without the prior written permission of the Supplier;
- Use the Software, the Customized Software, the Documentation or the Cloud Service in conjunction or combination with a Third Party Product not expressly approved by the Supplier;
- Take or instruct any third party to take any action that would breach the limited right to use the SIPPM granted to the Customer under Section 4 above.
The Customer undertakes to perform in conformity with the Agreement and with due care the tasks for which the Customer is responsible. The Customer shall, in the agreed manner, provide the Supplier with sufficient and correct information in order for the Supplier to perform the Services. The Customer shall be responsible for the information and instructions provided to the Supplier. The Customer shall expressly have the responsibility and liability to create and keep welder information and WPS information as well as any technical information, including but not limited to parameters to be defined by the Customer, accurate and updated in WeldEye during the validity of the Agreement, and the Customer’s main user will create needed welders and users for WeldEye and maintain said groups. It is expressly acknowledged and agreed by the Customer that the Supplier shall neither be responsible to update nor maintain such information and shall not be responsible for any possible improper or inaccurate functioning of WeldEye due to the Customer’s actions or omissions relating to such information. It is further acknowledged and agreed by the Customer that any processing of such information occurs in accordance with the instructions and information provided by the Customer.
The Customer agrees, at the Supplier’s request, to reserve and provide free of charge the Supplier with necessary working space, tools, media, network connections or other supplies and information related to use of equipment and software, which the Supplier may reasonably require to enable the Supplier’s performance of the Implementation, Activation or any other Service to be provided on the Customer’s site. The same applies to maintenance Services provided by the Supplier to the Customer. The Customer further agrees to contribute to the performance of the Services with respect to the factors under the command or control of the Customer. The Customer undertakes to take such decisions as are necessary for the performance of the Services without delay.
The Customer further agrees not to intentionally or negligently introduce any viruses, worms, Trojan horses or any other malicious code, programs, scripts or files (collectively “Viruses”) into WeldEye and agrees to ensure that it has applied sufficiently strong technical means in order to block and prevent any Viruses from entering into the Customer’s systems and through them into WeldEye.
The Customer is responsible for all devices and telecommunication connections linked to its network (especially its Wi-Fi network) and for sufficient technical protection of said devices, telecommunications connections and network in order to secure data security and prevent any unauthorized access to or introduction of Viruses into WeldEye or any other Customer’s systems.
The Customer shall use the information network, including but not limited to connections between WeldEye and hardware (including smart reader devices) at its own risk and is responsible for its actions therein. The Customer is responsible for the correctness of the information provided and liable for the expenses caused by rectification of incorrect information.
The Customer shall indemnify, defend and hold the Supplier harmless against any loss, damage or expense incurred as a result of claims, actions, or proceedings brought by any third party in respect of, or arising out of the death or personal injury suffered by its personnel and damage to or loss of the tangible property of the Supplier and/or their personnel due to the negligence or other breach of statutory duty or common law duty of the Customer. This clause shall survive the expiration or earlier termination of this Agreement.
- The Customer shall indemnify, defend and hold the Supplier harmless against any loss, damage or expense incurred by the Supplier as a result of claims, actions, or proceedings brought by any third party
1) arising from acts of negligence or willful misconduct by any employees of the Customer or any other persons working on behalf of the Customer, relating to the Agreement or these Kemppi General Terms and Conditions; or
2) breach of third party’s Intellectual Property Rights which results from code or design specifications provided by the Customer to the Supplier in connection with the Supplier’s performance of development, Customization or modification of the Software or any performance of the Cloud Service or any other Services under the Agreement, provided, that:
- the Supplier shall have given the Customer a prompt written notice of such claim, demand, suit or action;
- the Supplier shall co-operate, at the Customer’s cost and expense, with said defense by complying with the Customer’s reasonable instructions and requests to the Supplier in connection with said defense; and
- the Customer shall have full control of the defense of such claim, suit, demand, or action and the settlement thereof, provided that the Supplier shall have the right to initiate, at the Customer’s cost and expense, an appropriate defense until the Customer has verifiably arranged the defense in a manner satisfactory to the Supplier and thereafter, the Supplier shall have the right to continue to arrange its own defense, at its own cost and expense, to support the defense arranged by the Customer.
5. Limitation of liability
The Supplier shall be liable only for a direct damage that is proved to have resulted from the Supplier’s own intentional or grossly negligent actions. All direct damages must be claimed from the Supplier within one (1) month from the date of the intentional or grossly negligent action, on which the claim is based, was detected or should have been detected.
The Supplier’s total aggregate liability to the Customer, including its subsidiaries, arising out of a breach of the Supplier’s obligations under these Kemppi General Terms and Conditions (including Section 4) or the Agreement, shall be limited to the lower of EUR 10,000 or twenty per cent (20 %) of the total value of the fees paid by the Customer under the Agreement during the immediately preceding twelve (12) month period for Cloud Service from which the claim arose. However, where solely a fixed term Cloud Service provided against a recurring charge or solely a Cloud Service agreed until further notice and provided against recurring charge is concerned, the maximum liability for damages shall not exceed in aggregate the proportional monthly fee for the Cloud Service in question, multiplied by six (6). Furthermore, for a Service that is provided only once, such as Activation, the Supplier’s total aggregate liability for errors in the provision of such one-time Service shall be limited to the correction of the error or repeating said Service at the Supplier’s own expense, provided that the Customer has notified the Supplier in writing of such error in accordance with Section 4.2. The limitation of liability set forth herein does not apply to breaches that are based on intentional acts or gross negligence by the Supplier.
The Customer’s total liability to the Supplier arising out of, under or in connection with these Kemppi General Terms and Conditions or the Agreement shall be limited to the total value of the fees paid by the Customer under the Agreement.
The limitation of liability of the Customer set forth herein does not apply to damages or injuries which are the result of breach of clauses 4.2 or 7, or intentional acts or omissions or gross negligence by the Customer.
Excluding the aforementioned Sections 4.2 and 7 as well as intentional acts or omissions or gross negligence, neither party shall be liable to the other party for loss of use, loss of production, loss of profit or loss of any contract, or for any indirect, special, punitive or consequential loss or damage (collectively “Indirect Damages”) that may be suffered by the other party by way of indemnity or by reason of any breach of contract or in tort or otherwise.
Furthermore, the Supplier shall not be liable for the destruction, loss or alteration of the Customer’s data or data files, nor for any damages and expenses, including expenses involved in the reconstruction of data files (collectively “Data Loss”) or any errors any Indirect Damages or Data Loss attributable to Third Party Products or Third Party Products Errors or any disturbance, unavailability or non-functionality caused by a third party. The Supplier shall not be liable either for any interference, unauthorized use, attempted unauthorized use, or a parallel or similar issue affecting the Customer or an information system, including hardware and its installed software, whether originating from an information network or another source.
6. Termination for default
Without prejudice to any other provisions of the Agreement, by giving written notice, the non-defaulting party may terminate the Agreement with immediate effect upon the occurrence of one or more of the following events:
- the other party commits a material breach of its obligations under the Agreement entered into by and between the parties, which breach, if capable of being cured, is not cured within thirty (30) days after the non-defaulting party gives the other party notice of such breach;
- the other party ceases to do business as a going concern, makes an assignment for the benefit of creditors, admits in writing its inability to pay debts as they become due, subject to mandatory provisions of the Finnish Bankruptcy Act, files a winding-up petition or petition in bankruptcy (except in connection with a reorganization under which the business activities of such party are to continue and performance of all its obligations under the Agreement shall continue) or appoints a receiver or administrator, acquiesces in the appointment of a receiver or trustee, or liquidator for it or any substantial part of its assets or properties, or any other substantially similar event takes place under the laws of the relevant jurisdiction.
By giving written notice, the Supplier may terminate the Agreement with immediate effect upon the occurrence of one or more of the following events:
- the Customer comes under the direct or indirect or de facto control or direction of any other person, corporation or organization, which is a competitor of the Supplier;
- the Customer has used the Cloud Service in excess of the number of paid Cloud Subscriptions, and has not cured such material breach by compensating and paying to the Supplier the amount equaling to the number of unauthorized Cloud Subscriptions with applicable penalty interest. The Supplier has the right to conduct an audit to verify the number of Cloud Subscriptions at any time during the normal business hours of the Customer by providing a prior written notice to the Customer no later than five (5) business days prior to the intended audit. In case the Supplier decides to audit or have the Customer audited by a third party supplier and the outcome of said audit shows that the Customer has breached the Agreement, the Customer shall also compensate the costs and expenses of such audit to the Supplier.
Each party agrees to keep the Confidential Information, as defined hereunder, in the strictest confidence, in the manner set forth in this Section 7.
“Confidential Information” includes any information, not generally known in the relevant trade or industry, obtained from the Customer or the Supplier or the Supplier’s subcontractors or licensors or which falls within any of the following general categories:
- Software included in and provided in connection with WeldEye;
- information relating to trade secrets of the Customer or the Supplier or the Supplier’s subcontractors, sub-suppliers or licensors;
- information relating to existing or contemplated products, services, technology, designs, processes, formulae, computer systems, computer software, algorithms and research or developments of the Supplier or the Supplier’s subcontractors, sub-suppliers or licensors;
- information relating to the business of the Customer or the Supplier or the Supplier’s subcontractors, sub-suppliers or licensors, including but not limited to, business forms, handbooks, policies, and documents, business plans, business processes and procedures, sales or marketing methods, customer lists, data, customer usage’s and/or requirements, and supplier information of the Supplier or the Supplier’s subcontractors, sub-suppliers or licensors; or
- information marked ‘Confidential’ or ‘Proprietary’.
Neither party shall copy, modify, enhance, compile or assemble (or reverse compile or disassemble), or reverse engineer Confidential Information or anything containing or embodying Confidential Information and shall not, directly or indirectly, disclose, divulge, reveal, report or transfer such Confidential information of the other party to any third party or to any individual employed by the Supplier or the Customer, other than employees of the Supplier or the Customer having a need to know such Confidential Information for the purpose of execution of the Agreement. Respectively and subject to the above, the Customer shall be entitled to provide Confidential Information to its subsidiaries, to whom valid Cloud Subscriptions have been purchased for the purpose specified above, provided, however, that the Customer ensures the confidentiality of such Confidential Information with adequate confidentiality undertakings. The Customer shall provide proof to the Supplier, upon the Supplier’s written request, of the confidentiality undertakings concluded in accordance herewith. The Customer shall remain fully liable and responsible for the activities and/or omissions of its subsidiaries.
Neither party shall use any Confidential Information of the other party or the concepts therein for its own benefit or for the benefit of a third party or for any purpose other than the purpose for which such Confidential Information is being disclosed.
Neither party shall remove any propriety legends or notices, including copyright notices, appearing on or in the Confidential Information of the other party.
Each party shall take appropriate action with respect to each and every person permitted access to any Confidential Information of the other to ensure that each person complies with the confidentiality provisions hereof. Each party shall use its best efforts to enforce the proprietary rights of the other party and the Customer also to enforce the proprietary rights of the Supplier’s subcontractors and licensors (including but not limited to seeking injunctive relief where reasonably necessary) against any person who has possession of or discloses Confidential Information in a manner not permitted by the Agreement or these Kemppi General Terms and Conditions.
Each party shall be responsible for the performance of this Section by each of its officers, directors, managers, administrators and agents, who has access to the Confidential Information of the other party.
Without prejudice to the other provisions of this Section, the parties may disclose Confidential Information to their attorneys in the course of representation on a matter reasonably requiring the attorneys to receive the Confidential Information and may also disclose Confidential Information to their certified public accountants to the extent necessary to enable those accountants to prepare financial statements or reports required by law.
The disclosing party agrees that the receiving party (the “Recipient”) shall have no obligation with respect to any information which the Recipient can establish:
- was already known to the Recipient prior to the provision of the information in question;
- was or becomes publicly known through no breach by the Recipient;
- was rightfully obtained by the Recipient from a third party without similar restriction and without breach thereof;
- was used or disclosed by the Recipient with the prior written authorization of the disclosing party;
- was disclosed pursuant to a court order or requirement or request of a government agency whose disclosure cannot be made confidentially, provided that the Recipient first give written notice of such requirement or request to the disclosing party and agreed to take its best efforts to limit the disclosure of the Confidential Information to the minimum possible; or
On termination of the Agreement and its Appendices, each party shall:
- return to the other party all information, documents and materials (and any copies) containing, reflecting, incorporating or based on the other party’s Confidential Information: or
- erase and destroy verifiably all the other party’s Confidential Information from computer and communications systems and devices used by it, including such systems and data storage services provided by third parties (to the extent technically practicable): and
- certify in writing to the other party that it has complied with the requirements of this Section, provided that the Recipient may retain documents and materials containing, reflecting, incorporating or base on the other party’s Confidential Information to the extent required by law or any applicable governmental or regulatory authority. The provisions of this Section 7 shall continue to apply to any such documents and materials retained by the Recipient.
Pursuant to the above obligations the Customer shall cease to use the Licensed Materials and/or the Cloud Service and shall cease to exploit any SIPPM on the date of the termination or expiry of the Agreement and its Appendices at the latest.
The provisions of this Section 7 shall survive for a period of five (5) years from the termination of the Agreement.
8. Export restrictions
The Customer agrees to comply with the laws and regulations laid down by the authorities of Finland and with such laws and regulations laid down by the authorities of the country of origin of the Deliverable or part thereof or Service as are notified to the Customer by the Supplier and are applicable to the export of Deliverables and technical information from Finland. The Customer also agrees not to provide any Deliverables or technical information to a third party, if such action would violate the laws or regulations laid down by the authorities of Finland or such laws or regulations laid down by the authorities of the country or origin of the Deliverable or part thereof as are notified to the Customer by the Supplier.
9. Recruitment restriction
The Customer may not engage a person who is or has been in the service of the Supplier and performs or has performed essential tasks relating to the professional service in question, or enter into any other agreement or otherwise agree on such arrangement, whose purpose is to obtain the work contribution of the person in questions.
In case of breach of the recruitment restriction contained in this Section 9, the Customer shall be liable to pay to the Customer by way of liquidated damages an amount corresponding to twelve (12) months’ gross salary of the person in question.
The recruitment restriction shall not, however, apply if the employment of the person in question has been terminated for a reason attributable to the Supplier or if the recruitment occurs on the initiative of the person in response to a public job advertisement.
Any notice, consent or other communication in connection with the Agreement shall be in writing and may be delivered in person, by mail or electronic transmission, including e-mail. If delivered in person, the notice shall be effective upon delivery. If electronically, the notice shall be effective when sent. If served by regular mail, the notice shall be effective three (3) business days after being sent to the relevant addresses.
11. Force Majeure
Neither party shall be obliged to perform any obligation nor liable to the other party for any failure of performance hereunder (except obligations to pay), if the party is prevented from doing so for causes beyond said party’s reasonable control and occurring without that party’s fault or negligence including, but not limited to, natural disasters, acts of government, flood, fire, civil unrest, acts of terror, strikes or other industrial actions, computer attacks or malicious acts, such as attacks on or through Internet (a "Force Majeure Event"). The Force Majeure Event shall also include 1) a situation of Force Majeure Event for the Supplier’s subcontractors, sub-suppliers or licensors, 2) an improper performance of obligations by suppliers appointed by the Customer for the Supplier, as well as 3) defects in objects, materials or software of third parties which the Customer has required the Supplier to use.
If the Force Majeure Event lasts for more than sixty (60) days, the parties shall be entitled to terminate the Agreement by rescinding the agreements in writing. What has already been performed pursuant to the Agreement shall in that case be settled proportionately, without the parties otherwise owing each other anything.
12. Relationship of parties
The relationship of the parties established by the Agreement is solely that of independent contractors. Neither party, nor any of its agents or employees, may act as the representative of the other party for any purpose and neither has power or authority to act as agent or employee or to represent, act for, bind, or otherwise create or assume any obligation on behalf of the other party.
Any public announcement by a party in newspapers, trade journals and other publications regarding the existence of the Agreement between the parties is subject to the consent of the other party. However, parties are entitled to make such public announcements that are required by the law applicable to the party. In addition, the Supplier is entitled to include the Customer into the Supplier’s public customer reference list.
14. Binding nature and assignment
The Agreement shall bind the parties and their successors and permitted assigns. Neither party may assign or novate the Agreement without the prior written consent of the other, which consent shall not be unreasonably withheld. Any other assignment attempted without the written consent of the other party shall be void. Notwithstanding the above, the Supplier is entitled in whole or in part to assign and transfer the Agreement and any of its rights and obligations under said agreements to any subsidiary or affiliated company or to any third party in connection with any business transaction, including but not limited to, a merger, demerger, acquisition, company reorganization, joint venture, or sale of assets.
If any provision of the Agreement or these Kemppi General Terms and Conditions is held to be unenforceable, both parties shall be relieved of all obligations arising under such provision, but only to the extent that such provision is unenforceable, and such provision shall be modified to the extent necessary to make the Agreement or these Kemppi General Terms and Conditions enforceable while preserving its intent, and the remaining provisions of the Agreement or these Kemppi General Terms and Conditions shall remain in effect and intact.
No delay or omission by either party to exercise any right or power it has under the Agreement or these Kemppi General Terms and Conditions shall impair or be construed as a waiver of such right or power. A waiver by either party of any covenant or breach shall not be construed to be a waiver of any succeeding breach or of any other covenant. All waivers must be in writing and signed by the party waiving its rights.
17. No third party beneficiaries
The parties agree that the Agreement and these Kemppi General Terms and Conditions are for the benefit of the parties hereto and not intended to confer any legal rights or benefits on any third party and that there are no third party beneficiaries to the Agreement or these Kemppi General Terms and Conditions or any part or specific provision of the foregoing, unless expressly stated otherwise.
18. Survival of provisions
All disclaimers, representations and covenants which due to their nature are intended to survive termination of the Agreement or these Kemppi General Terms and Conditions shall remain in force after termination of the Agreement or these Kemppi General Terms and Conditions. These disclaimers, representations and covenants include, but are not limited to those regarding confidentiality, liability, Intellectual Property Rights and indemnifications of each party, provisions regarding dispute resolution and choice of law contained herein and all accrued and unpaid obligations arising hereunder.
19. Governing law and disputes
These General Terms and Conditions are governed by and construed in accordance with the laws of Finland excluding its choice of law provisions, the Finnish Sale of Goods Act (35581987, as amended) and the CISG, and both the Customer and the Supplier agree to submit to the exclusive jurisdiction of the Arbitration Institute of the Finland Chamber of Commerce. Any dispute, controversy or claim arising out of or relating to the Agreement or these Kemppi General Terms and Conditions, shall be finally settled by arbitration by three (3) arbitrators in accordance with the Arbitration Rules of the Finland Chamber of Commerce. The language of any proceedings shall be English, and the seat of arbitration shall be Helsinki, Finland.
In accordance with the Arbitration Rules the initiation of the arbitration, the arbitration proceedings and the arbitral award shall be confidential information under these Kemppi General Terms and Conditions.
Nothing in the Agreement nor in these Kemppi General Terms and Conditions shall prevent the Supplier from seeking an injunctive relief from a competent court in any jurisdiction.