BACKGROUND
1.1 These Terms of Service (“Terms”) apply to the delivery and use of Magister SimLab simulation software (“Service”) provided by Magister Solutions Ltd. (Business ID 1998796-8 “Supplier”). The Service shall be delivered via a data network connection (Software-as-a-service) in accordance with these Terms.
SPECIFICATIONS
2.1 Within these Terms, a User refers to a natural person who uses the Service.
2.2 Within these Terms, a Customer refers to a natural or a legal person who has ordered the user rights to the Service, or who is represented by a User of the Service.
2.3 Within these Terms, a Price List shall refer to the Supplier’s currently valid price list or price lists which specify the prices of the Service or services to be delivered.
2.4 Within these Terms, a Service Description shall refer to the description or descriptions of the functionalities, contents, service level, purpose of use of the Service, or service included in the agreement as an appendix. 2.5 Within these Terms, Information shall refer to data and files saved by the Customer in the Service. User information refers to information saved by the Service specifying the use of the Service by the User and Customer.
SERVICE CONTENT AND SERVICE LEVEL
3.1 The content of the Service is determined in the selected Service Description. In all plans User may run simulations using the Customer’s own data (the Information).
3.2 The instructions and use environment requirements of the Service and up-to- date contact information of customer support are available from the Supplier on request.
3.3 The Service may change as the Supplier develops the Service further. The Supplier can make a change in the Service that (a) does not reduce the content or the service level of the Service, (b) is necessary for the prevention of a data security threat targeted at the Service, (c) results from legislation or a regulation by an authority, or (d) has been notified to the Customer well in advance.
3.4 The Supplier may prevent access to the Service without consulting the User or the Customer if the Supplier suspects that there is inappropriate Information stored in the Service, access to the Service by other users may be risked by the stored Information or if these Terms are violated.
3.5 The Supplier shall aim to make the Service available at all times, but it may suspend the use or change the content of the Service whenever this is considered necessary. The Supplier may interrupt the availability of the Service due to, for example, installation, revision or maintenance work or due to a security threat, or legislation, requirement or regulation by an authority.
3.6 The Supplier cannot guarantee the availability of the Service without interruptions or the production of services by a party that offers communications services or a network connection or another third party that affects the use of the service. The Supplier shall attempt to notify the Customer well in advance of any service or maintenance breaks.
CYBER SECURITY AND CONFIDENTIALITY
4.1 The Supplier shall take appropriate measures which are compatible with industry standards to protect the Service and the Information from data breaches.
4.2 The parties or their employees or group companies may not use or express the confidential information of another party to a third party other than as specified in these Terms. The parties must handle the confidential information of another party at least with the same diligence as they would their own confidential information provided that the confidential information is always handled at least with reasonable diligence.
IDENTIFICATION DATA
5.1 The Customer shall ensure that the Customer and all of the assigned Users store their usernames and passwords in a secure location separate from each other. The Customer shall ensure that the identification data described above are not disclosed to third parties. If the identification data is disclosed to third parties, or the Customer suspects that it may have been disclosed to third parties, the Customer must notify the Supplier of this without delay in order to prevent unauthorized use of the Service. The Supplier shall be entitled to interrupt the use of the Service after the Customer has notified the Supplier of a possible disclosure of identification data to third parties until new identification data have been implemented.
5.2 The Customer shall be responsible for any operations made using their identification data until the Supplier has received the notification of the disclosure of identification data to third parties and the Supplier has had a reasonable amount of time to prevent the use of the Service.
5.3 If a User has handled their identification data carelessly or otherwise contributed to the disclosure of the identification data to a third party, the Customer shall be responsible for all of the expenses caused to the Supplier or a third party due to the User’s actions
GENERAL RIGHTS AND OBLIGATIONS OF THE SUPPLIER
6.1 The Supplier shall provide the Service professionally and carefully according to the Terms. The Supplier shall have the right to include open source code software or modules in the Service.
6.2 The Supplier shall notify the Customer without delay of any issues that could prevent the use of the Service as specified in the Terms or endanger the privacy of the Customer’s Information.
GENERAL RIGHTS AND OBLIGATIONS OF THE CUSTOMER
7.1 The Customer shall be entitled to use the Service in its internal operation as specified in the Terms.
7.2 The Customer or the User shall not be entitled to resell or otherwise distribute the Service to third parties unless otherwise specifically agreed upon.
7.3 The Customer is responsible for the acquisition and condition of equipment, connections, software, and operating environment required for using the Service. The Customer is responsible for the protection of their data system, their communications costs and other similar costs related to the use of the Service. The Customer must ensure that the equipment, connections, software and data systems meet the operating environment requirements submitted by the Supplier and that the Service is suitable for the Customer’s purposes.
7.4 Unless otherwise agreed, the Service is located on a server maintained by the Supplier or a third party. The Customer must ensure that the Customer or Users assigned by the Customer do not try to copy the Service from a server, examine, alter or copy the source code of the Service, otherwise disturb the operation of the Service, or access in an unauthorized manner the database, customer information or information saved by other customers.
7.5 The Customer must not allow the use of the Service in a country that opposes any legal restrictions concerning technology export or where the use of the Service would be illegal or require a permit or insurance, or cause the Supplier a more extensive responsibility or obligation that deviates from this agreement or Finnish laws.
7.6 The Customer is responsible for the use of the Service, the content of the Information and the exchange of information performed using the Service.
GENERAL RIGHTS AND OBLIGATIONS OF THE USER
8.1 By using the Service, the User agrees to comply with these Terms in the role of the User. The Service may only be used by a legally competent adult authorized by the Customer and the use must be in compliance with these Terms.
8.2 The User must keep the username and password in a secure place and not disclose them to any third parties. The User is responsible for the use of the Service with his or her username and password. The User will notify the Supplier without delay of the disclosure of a password to a third party or a suspected unauthorized use of a username or password. At the request of the Supplier, the User must change the password necessary for the use of the Service, if it is considered necessary due to a data security threat targeted at the Service.
8.3 In order to ensure the data security and usability of the Service, the Supplier may terminate a User’s network connection to the Service if the User is not using the Service.
INTELLECTUAL PROPERTY RIGHTS AND CUSTOMER’S DATA
9.1 The Service is the sole property of the Supplier and/or a third party, and it may be protected by a copyright or another intellectual property right. The User will not be granted any rights to the Service, technology or content other than the user rights to the Service as specified in these Terms. On the basis of these Terms, no rights will be granted to use the Supplier’s or the Service’s business names, logos, domain names or other brand names or identifiers. The Supplier can freely use, without compensation, suggestions, comments or proposals that it has received.
9.2 The ownership and intellectual property rights to Information saved in the Service belong to the Customer or a third party.
9.3 The Customer will be responsible for the Information saved by Users in the Service and for having the right to use the Information without violating the rights of third parties or currently valid legislation.
9.4 The Customer is responsible for all of the costs and claims and requirements presented to the Supplier or its group companies that are either directly or indirectly due to Information or Customer’s violation of these Terms. The Supplier can defend itself against the claims mentioned above, if necessary.
9.5 Unless otherwise agreed in writing, the Supplier shall be responsible for backing up the Customer’s Information in a Service provided via a data network or for another technical procedure leading to the same result at least once every workday. The Customer will be responsible for other backups.
9.6 If the Information saved by the Customer in the Service has been destroyed, lost, altered or damaged in parts or completely by the Customer’s actions, the Supplier may charge the Customer for the recovery of the information.
LIMITATION OF LIABILITY
10.1 In addition to the assurances specifically stated in these Terms, the Supplier will not grant any other assurances on the applicability of the Service for a specific purpose, the quality of the Service, integrity of third parties’ rights, or other issues.
10.2 The Supplier is not responsible for any indirect losses to the Customer. The Supplier’s maximum amount of compensation in any case is the total price paid by the Customer to the Supplier for the use of the Service excluding value added tax for six (6) months prior to the damage
GENERAL TERMS
11.1 The Supplier may postpone the delivery date, cancel the agreement or change the Service without causing implications to the Supplier if it cannot continue its business operations due to a reason that it has had no reason to consider when making the agreement and of which the Supplier is independent (force majeure). Such events may include war, rebellion, civil unrest, requisition or confiscation for public use performed by an authority, import or export prohibition, natural disaster, interruption of public transport or energy supply, labor dispute or fire, disturbance in communications network or other online communication independent of the Supplier, or other significant reason in terms of its impacts independent of the Supplier. If the reason for the delay continues for more than three (3) months, the Customer is entitled to terminate the agreement in writing.
11.2 A party shall not have the right to transfer the agreement or any part thereof without the other party’s written consent. However, the Supplier may transfer the agreement to its group company at any time or to a third party in connection with a company reorganization or a business transaction, or at the sale of a significant part of the Supplier’s assets that the Agreement concerns. The Supplier may transfer any contractual overdue payments to a third party by notifying the Customer of the transfer in writing.
11.3 If a specific condition is considered illegal, invalid or such that it cannot be entered into force, it will not affect the validity, legitimacy, or implementation of other terms or the whole agreement.
11.4 If a party does not use a right that is based on this agreement, it will not limit the party’s right to refer to the agreement terms later in a similar case.
11.5 This agreement does not form a joint company, employment or franchise, agency or other consortium between the parties and entitle a party to represent or make any commitments, agreements or assurances on behalf of the other party.
11.6 All of the information and notifications related to this agreement addressed to the other party must be delivered in writing (i) by email in which case the notification is considered to have been received by the other party at the time it has been sent, or (ii) by including a notification in connection with the Service. Notifications must be addressed to an official registered address or another recorded address.
11.7 Finnish law shall be applied to these Terms, apart from regulations that concern the selection of legislation. All disputes that arise from these Terms are resolved finally by one arbitrator according to the regulations of the Arbitration Institute of the Finland Chamber of Commerce. The arbitration location is Helsinki, and the arbitration language is Finnish or English. The arbitrator’s verdict is final, binding to both parties and it can be entered into force by any competent court. At the request of the Supplier, any claims concerning outstanding accounts will be resolved at the general court of the defendant’s domicile.