The Service Agreement
Last Updated: November 24, 2023
Agreement and Parties
This Service Agreement is between the entity you represent, or, if you do not designate an entity in connection with a Service purchase or renewal, you individually (“Customer”, “you” or “your”), and Monitzion Oy (“Monitzion”, “Supplier”, “we”, “us”, or “our”), and collectively as “Parties”.
The Agreement consists of the terms and conditions below, as well as the Data Processing Agreement, the Offer Detail Appendices (“Terms and Pricing of the Service(s)) for your purchase of Service(s) (“Service”, Online Service”, or “Subscription”) or renewal of Subscription(s), and other Appendices if there are any customer specific terms and conditions (together, the “Agreement”).
The following Appendices form an integral and inseparable part of this Service Agreement or renewal (together, the “Agreement”):
Appendix 1: Data Processing Agreement
Appendix 2: Terms and Pricing of the Service(s)
Appendix 3: Any other documents specified as an enclosure to this Agreement.
The Agreement is effective on the date we provide you with confirmation of your Order. A scope of the services in the Agreement can vary from time to time according to the valid orders of Services.
Unless the context otherwise requires, the following expressions have the following meanings (and where the context so admits the singular shall include the plural and vice versa):
“Affiliate” means any legal entity that a party owns, that owns a party, or that is under common ownership with a party. “Ownership” means, for purposes of this definition, control of more than a 50% interest in an entity.
“Agreement” means this Agreement, time to time valid terms and conditions to deliver Services, including any Appendices attached hereto as well as any amendments or addenda.
“Cloud Service” means deployment model of SaaS over the general communication network (internet) to the Access Point.
“Consumption Offering”, “Commitment Offering”, or “Limited Offering” describe main categories of Subscription offers.
“Customer Data” means information or material transferred by the Customer to the software service or otherwise provided or made available to the Supplier on behalf of the Customer for purposes of the software service as well as any other information or material specified as Customer Data by the Parties.
“Customized Software” means software or software component defined as customized software in the agreement and the instructions or other documentation and potential media related to the customized software in question.
“Day” means a calendar day.
“DPA” means Data Processing Agreement.
“Data System” means (a) a functional entity comprising standard software, customized software, open-source software, software code deliverables created as a result of supplier’s work under the agreement and other software and software components included in the delivery and the instructions or other documentation and potential media related to the data system in question; or (b) Customized Software.
“Documentation” means Supplier’s or its partners’ proprietary manuals, instructions, and other material for the services.
“End User” means any person you permit to access Customer Data hosted in the Cloud Services or otherwise use the Cloud Services, or any user of a Customer Solution.
“Identifier” means user identifier for authenticating the user of the software service in a reliable manner.
“Managed Service Solution” means a managed IT services consisting of the administration and support for the software services.
“Offer Details” means the pricing and related terms applicable to a Service offer, as published in the MONITZION Portal and/or company/product web pages.
“Online Services” means any of our Cloud Services you order or renew the subscription under this Agreement.
“Open Source Software” means any software or software component which (a) is licensed subject to the open source license terms and conditions listed at www.opensource.org/licenses; (b) fulfil the open source definition set out at www.opensource.org/docs/osd; or (c) is otherwise licensed subject to the license terms and conditions conforming to the criteria set out at www.opensource.org/docs/osd.
“Previews” mean preview, beta, or other pre-release version of feature of the Online Services or Software offered by Supplier to obtain Customer feedback.
“Personal data” means any information relating to an identified or identifiable natural person.
“Portal” means an all-in-one access point to the services and support provided to registered customer users according to the service agreement.
“SaaS” means “Software as a Service”.
“SLA” means “Service Level Agreement”, the commitments regarding delivery and/or performance of a Service, as defined in the respective Terms of Service.
“Software Vendor” means the supplier or third party to whom the intellectual property rights in the deliverables belong.
“Standard Software” means software or software component marketed or licensed to several customers and the instructions or other documentation and potential media related to the standard software in question.
“Subscription” means an enrollment for Online Services for a defined terms and conditions as specified in the Terms and Pricing of the Service. You may purchase multiple Subscriptions, which may be administered separately, and which will be governed by the terms of the Agreement.
“Supplier Material” means material provided or made available by the Supplier to the Customer for purposes of the use of the Service and any other information or material specified as Supplier Material by the Parties.
“Term” means the duration of a Subscription (e.g., 30 days or 12 months).
“TOS” means the Terms of Service applied to your use of our Service(s).
a) The customer undertakes to ensure that the service set out in the agreement is suitable for the customer’s purpose of use and it meets the customer’s requirements for the service.
b) The customer undertakes to perform the task for which it is responsible in conformity with the agreement and with due care.
c) The customer shall be responsible for acquiring and maintaining the functional status of the hardware, connections, and software that the customer needs to use the online service. The customer shall be responsible for the datacommunication and other comparable costs related to use of the online service. The customer shall be responsible for preparing the hardware, connections, software, and data systems to meet the operating environment requirements.
d) The customer shall provide the supplier with sufficient and correct information for the delivery and also otherwise reasonably contribute to the delivery of the service. The customer shall be responsible for the information and instructions provided to the supplier and for keeping them up to date.
e) The customer shall inform the supplier in writing of the customer’s contact person and other necessary contact details, as well as changes thereto, for the purpose of the supplier’s contact requests relating to the service.
The parties agree that these terms govern Customer’s use of the Online Services and that the DPA (Appendix 1) sets forth their obligations with respect to the processing and security of Customer Data and Personal Data by the Online Services. The Privacy Policy details security practices and location of Customer Data. The processing of Personal Data is subject to the DPA except exceptions listed in the Privacy Policy.
You understand and agree that all Orders and Subscriptions may be subject to compliance checks to determine if they meet our financial, security and other reasonable criteria. You are responsible for providing and maintaining true, current, complete, and accurate information. If your information is flagged for review by any of these checks it may require additional information, as well as delay processing a) approval of your order, b) renewal of your subscription(s), and/or c) provision of current Online Service(s). We will use commercially reasonable efforts to review legal entity information and personal data of ultimate interested parties, authorized persons and/or representatives in a timely manner, but we are not liable for any delays. By submitting an Order for purchase of our Service(s) you agree and expressly authorize us to perform all compliance checks, authenticate your identity and/or validate your payment method at any time, including but not limited to disclose personal data to third-parties or to obtain information from third parties.
If you fail compliance check, orders and subscription renewals will not be approved and current services, if any, will be suspended. You will receive a formal notice of that, but we are unable to provide additional information about reasons. We will reimburse you for all pre-paid fees within ten (10) working days as of the date of our formal notice. We have no liability for payment of any indemnification, compensation for damage or claims because of failed compliance check. No interest or other charges will accrue on the advance paid amounts.
a) Right to use. We grant you the right to access and use the Online Services and to install and use the Software included in your Order, as further described in this agreement. We reserve all other rights.
b) Acceptable use. You may use the Service(s) only in accordance with this agreement. You may not reverse engineer, decompile, disassemble, or work around technical limitations in the Online Service, except to the extent applicable law permits it despite these limitations. You may not disable, tamper with, or otherwise attempt to circumvent any billing mechanism that meters your use of the Online Services. You may not rent, lease, lend resell, transfer, or host the Online Service, or any portion thereof, to or for third parties except as expressly permitted in this Agreement or in the Appendices.
c) End Users. You control access by End Users, and you are responsible for their use of the Online Service in accordance with this agreement. For example, you will ensure End Users comply with the Acceptable Use Policy.
d) Customer data. You are solely responsible for the content of all Customer Data. You will secure and maintain all rights in Customer Data necessary for us to provide the Online Services to you without violating the rights of any third party or otherwise obligating Monitzion to you or to any third party. Monitzion does not and will not assume any obligation with respect to Customer Data or to your use of the Online Service other than as expressly set forth in this agreement or as required by applicable law.
e) Responsibility for your accounts. You are responsible for maintaining the confidentiality of any non-public authentication credentials associated with your use of the Online Services. You must promptly notify our customer support team about any possible misuse of your accounts or authentication credentials, or any security incident related to the Online Services.
f) Preview releases. We may make Previews available. Previews are provided “as-is”, “with all faults”, and “as-available”, and are excluded from the SLAs and all limited warranties provided in this agreement. Previews may not be covered by customer support. We may change or discontinue Previews at any time without notice. We also may choose not to release a Preview into general availability.
g) Managed Services. You may use the Online Service(s) to provide a Managed Service Solution provided (1) you have the sole responsibility of the Monitzion Solution use of your Customers’ end users, (2) you have administrative access to the Managed Service Solution, if any, and (3) you provide all support for users of your Customer(s). You are responsible for the third party’s use of the Online Service(s) in accordance with the terms of this agreement. Your provision of Managed Services remains subject to the following limitations (and any other limitation in the Service Description):
(i) you may not resell or redistribute the Online Service(s)
(ii) you may not allow multiple users to directly or indirectly access any feature of the Online Service(s) that is made available on a per-user basis.
h) Administrator Assumption of Control. If you use an email address provided by an organization you are affiliated with (e.g., an employer or a school) to order an Online Service individually, you represent that you have authority to use that organization’s domain to sign up for a Subscription in your capacity as a member of that organization. The organization, as the owner of the domain associated with your email address, may assume control over and manage your use of the Online Services. In such a case, your organization’s designated administrator (your “admin”) may (i) control and administer your account, including modifying and terminating your access and (ii) access and process your data, including the contents of your communications and files. Monitzion may inform you that your organization has assumed control of the Online Services covered by your Subscription, but Monitzion is under no obligation to provide such notice. If your organization is administering your use of the Online Services or managing the tenant associated with your Subscription, direct your data subject requests and privacy inquiries to your administrator. If your organization is not administering your use of the Online Service or managing such tenant, direct your data subject request and privacy inquiries to Monitzion.
i) Shared Directory Data. When you order an Online Service using an email address with a domain provided by an organization you are affiliated with (e.g., an employer or a school), the Online Service adds you to a directory of users that share the same tenant and organization information. Your directory data (e.g., name, date of signup, email address, role, company, etc.) may be visible to other users of Online Services within your organization and the Monitzion user community.
j) Additional Software for use with the Online Services. We license Software to you; we do not sell it. Proof of your Software license is (1) this agreement, (2) any order confirmation, and (3) proof of payment. Your rights to access Software on any device do not give you any right to implement Monitzion or third party’s patents or other Monitzion or third party’s intellectual property in software or devices that access that device. If you use any third-party material (e.g., software or data) on the Services, you warrant to Monitzion that you are duly licensed to use the material, and that the license grants sufficient rights to Monitzion to provide the Services.
You acknowledge and agree that Monitzion may periodically run a series of audits on your Service(s). You authorize us to disclose the results of such audits to third parties. You shall provide to Monitzion, at your cost, any information or resources reasonably requested by Monitzion for the delivery of the Service(s), and where necessary, ensure that your employees, contractors, and other suppliers cooperate fully and promptly with Monitzion to such aim.
a) Available Online Service Offers. The company web pages and/or Portal provides Offer Details for available Online Services, which generally can be categorized as one or a combination of the following:
(i) Commitment Offering. You commit in advance to purchase a specific quantity of Online Services for use during a Term and to pay upfront or on a periodic basis in advance of use. With respect to the Online Service, additional or other usage (for example, usage beyond your commitment quantity) may be treated as a Consumption Offering. Committed quantities not used during the Term will expire at the end of the Term.
(ii) Consumption Offering (also called Pay-As-You-Go). You pay based on actual usage in the preceding month with no upfront commitment. Payment is on a periodic basis in arrears.
(iii) Limited Offering. You receive a limited quantity of Online Services for a limited term without charge (for example, as a trial Subscription or free account) or as part of another Monitzion offering. Provisions in this agreement with respect to pricing, cancellation fees, payment, and data retention may not apply.
b) Professional Services. We provide advisory, assistance, training, and support to you to onboard using Online Services, supporting your users in operations, and helping you to develop your business. The company web pages and/or Portal provides Offer Details for available Professional Services. Monitzion shall perform Professional Services in a professional and workmanlike manner according to our policies. The Customer shall ensure access and grant the right to use all data, materials, and software to Monitzion to fulfil its obligations. Furthermore, the Customer shall make necessary decisions and give necessary instructions on its own initiative and without delay. Generally, Professional Services can be categorized as one or a combination of the following:
(i) Time and material based.You make a service request to us specifying the scope and content. If the estimated time is less than two (2) working hours, we will not make a separate work order for your approval. We will charge you based on the actual time and material spent on completing the request and invoice you according to the valid price list on a periodic basis in arrears. If not otherwise specified in the service description, the minimum time charged is 0,5 hour per service request.
(ii) Assignments and projects. Content, scope, and time schedule are specified in the order. Pricing can be time and material based, fixed, or a combination of those as specified in the order.
(iii) Continuing Professional Services. Continuing service subscriptions are upfront commitments to a specific quantity of resources and/or deliverables to pay upfront of the Term or on a periodic basis.
c) Ordering.
(i) By ordering a Service or renewing a Service Subscription, you agree to the Offer Details. Unless otherwise specified in those Offer Details, Online Services are offered on an “as available” basis. You may place orders for your Affiliates under this agreement and grant your Affiliates administrative rights to manage your Account and/or Service(s), but Affiliates may not place orders under this Agreement. You also may assign the rights granted under Section 4.a. “Right to Use” to a third party for use by that third party in your internal business. If you grant any rights to Affiliates or third parties with respect to your Online Service, such Affiliates or third parties will be bound by this agreement, and you agree to be jointly and severally liable for any actions of such Affiliates or third parties related to their use of the Online Services.
(ii) Some offers may permit you to modify the quantity of Online Services ordered during the Term. Additional quantities of Online Services added to a Subscription will expire at the end of that Subscription. If you decrease the quantity during a Term, we may charge you a cancellation fee for the decrease in quantity as described below in Section 9 “Term, Termination and Suspension”.
d) Pricing and Payment. Payments are due and must be made according to the Offer Details for your Order/Renewal. Customer accounts and/or services may not be activated and/or subscriptions renewed until all fees are paid in full. Hence registration of products and services and/or activation of users might not be processed until outstanding fees have been paid.
(i) For Commitment Offerings, the price level may be based on the quantity of Online Services you ordered. Some offers may permit you to modify the quantity of Online Services ordered during the Term and your price level may be adjusted accordingly, but price level changes will not be retroactive. During the Term of your Subscription, prices for Online Services will not be increased, as to your Subscription, from those posted in the company web pages and/or in the Portal at the time your Subscription became effective or was renewed, except where prices are identified as temporary in the Offer Details, or for Previews or for Terms and Pricing of 3rd party vendors.
All prices are subject to change at the beginning of any Subscription renewal.
(ii) For Consumption Offerings, pricing is subject to change at any time upon notice.
e) Renewal.
(i) An Appendix to this Agreement, Terms and Pricing of the Service, will terminate upon renewal of your Service Subscription. Your Subscription will thereafter be governed, by the Terms and Pricing of the Service, and terms and conditions set forth in the offer details of the Service in the company/product web pages and/or in the Portal on the date on which your Subscription is renewed (an Appendix and/or Appendices “Terms and Pricing of the Service” to this Agreement). If you do not agree to any Renewal terms, you may decline to renew your Subscription.
(ii) For Commitment Offerings, you may choose to have a Subscription automatically renew or terminate upon expiration of the Term. Automatic renewal is pre-selected. You can change your selection at any time during the Term.
(iii) For Consumption Offerings, your Subscription will renew automatically for additional one-month terms until you terminate the Subscription.
(iv) For Limited Offerings, renewal may not be permitted.
f) Taxes. Prices are exclusive of any taxes, unless explicitly stated otherwise. You must pay any applicable value added, goods and services, sales, gross receipts, or other transaction taxes, fees, charges or surcharges, or any regulatory cost recovery surcharges or similar amounts that are owed under this agreement and which we are permitted to collect from you under applicable law. You will be responsible for any applicable stamp taxes and for all other taxes that you are legally obligated to pay including any taxes that arise on the distribution or provision of Product to your Affiliates. We will be responsible for all taxes based on our net income, gross receipts taxes imposed in lieu of taxes on income or profits, or taxes on our property ownership.
If any taxes are required to be withheld on payment you make to us, you may deduct such taxes from the amount owed to us and pay them to the appropriate taxing authority; provided, however, that you promptly secure and deliver an official receipt for those withholding and other documents we reasonably request to claim a foreign tax credit or refund. You must ensure that any taxes withheld are minimized to the extent possible under applicable law.
Customer may use the Online Services and related software as expressly permitted in the Customer’s licensing agreement. Monitzion and its partners, software vendors, reserve all other rights. All rights, title and interest, including all intellectual property rights in and to Professional Services and Deliverables, shall belong exclusively to Monitzion or its licensors. Each Party shall retain all its rights, title and interest, including all intellectual property rights to its pre-existing material.
Customer is solely responsible for ensuring compliance with all applicable laws, including, but not limited GDPR, with respect to Customer’s provision and users’ use of the service. You will be solely responsible for the security of your login credentials. Furthermore, you are solely responsible for the activity that occurs on your Account, regardless of whether the activities are taken by you, your employees or a third party, and for keeping your Account password secure. You shall notify Monitzion immediately of any breach of security or unauthorized use of your Account at the following email address: support@monitzion.com.
a) Acceptable Use Policy
Neither Customer, nor those that access an Online Service through Customer, may use an Online Service:
- in a way prohibited by law, regulation, governmental order or decree;
- to violate the rights of others;
- to try to gain unauthorized access to or disrupt any service, device, data, account or network;
- to spam or distribute malware;
- to mine cryptocurrency;
- in a way that could harm the Online Service or impair anyone else’s use of it;
- in any application or situation where failure of the Online Service could lead to the death or serious bodily injury of any person, or to severe physical or environmental damage, except in accordance with the High-Risk Use section below; or
- to assist or encourage anyone to do any of the above.
Violation of the Acceptable Use Policy in this section may result in suspension of the Online Service. If Monitzion suspends the Online Service, Monitzion will suspend only to the extent reasonably necessary. Unless Monitzion believes an immediate suspension is required, Monitzion will provide reasonable notice before suspending an Online Service for the reasons stated above.
b) Technical Limitations
Customer must comply with, and may not work around, any technical limitations in an Online Service that only allow Customer to use it in certain ways. Customer may not download or otherwise remove copies of software or source code from an Online Service except as explicitly authorized.
The customer is prohibited to employ any hardware, software, device, or techniques to pool connections or reduce the number of users that access or use Software Services (also referred to as “virtualization”, “anonymizing”, “multiplexing” or “pooling”) in order to circumvent any restrictions on scope of authorized use, including but not limited to the number of subscriptions and/or user licenses.
c) High-Risk Use
WARNING: Modern technologies, and especially platform technologies, may be used in new and innovative ways, and Customer must consider whether its specific use of these technologies is safe. The Online Services are not designed or intended to support any use in which a service interruption, defect, error, or other failure of an Online Service could result in the death or serious bodily injury of any person or in physical or environmental damage (collectively, “High-Risk Use”). Accordingly, Customer must design and implement every application such that, in the event of any interruption, defect, error, or other failure of the Online Service, the safety of people, property, and the environment are not reduced below a level that is reasonable, appropriate, and legal, whether in general or for a specific industry. Customer’s High-Risk Use of the Online Services is at its own risk. Customer agrees to defend, indemnify, and hold Monitzion harmless from and against all damages, costs and attorneys’ fees in connection with any claims arising from a High-Risk Use associated with the Online Services, including any claims based in strict liability or that Monitzion was negligent in designing or providing the Online Service(s) to Customer. The foregoing indemnification obligation is in addition to any defense obligation set forth in Customer’s licensing agreement and is not subject to any limitation of, or exclusion from, liability contained in such agreements.
Current fees and charges are listed on the company website and/or product website. Unless a specific agreement for use of the Service(s) exists between Monitzion and You, you acknowledge and agree to pay the fee for the respective Service(s) indicated on our website at the time you submit an Order, or a Subscription renewal takes place. Monitzion reserves the right to change the fees at any time without notification. Changes in fees shall be effective immediately and will apply to you as of your next purchase or renewal.
You are responsible for the payment of the Fee(s) set out in the Order, according to the currency specified. You are responsible for all taxes levied on the Services, as well as related bank fees and/or a transaction fee of your selected payment method. There might be an extra charge related to certain payment methods, which will be added to the final amount to pay and/or may have a separate transaction fee charged from your account. If your payment is unauthorized by the issuer of the payment method, we will not be liable for non-provisioning the Services.
You acknowledge and agree that the processing of payments will be subject to the terms, conditions, and privacy policies of the respective payment processor in addition to this Agreement.
The pricing in the orders of committed offering applies to the subscription period of the Service. The invoicing period and terms of the subscription are specified in the Terms and Pricing of the Service. You hereby authorize Monitzion to send invoices electronically at the email address you specify in the company information.
In case of delay in payment of any fee(s) due, for whatever reason, we may continue to attempt to collect payment method on file, suspend, and/or terminate your Services and pursue collection costs incurred by Monitzion, including without limitation, any court and legal fees and our reasonable attorney fees. We are not responsible for any deleted or lost Customer Data that results from any suspension and/or termination of the Services.
If you believe there is an error on your invoice, you must immediately contact us in writing. We each agree to work together in good faith to resolve any invoicing issues. If you contract your credit card company and initiate a chargeback process based on the dispute, we may suspend your Services until the dispute is resolved. To reactivate your Services, you must first pay all outstanding Fees.
We will apply for any refund using the same means of payment as you used for the initial transaction unless we have expressly agreed otherwise. We are not responsible for delays to refunds caused by processing institutions or expiration of the original payment method.
a) Agreement term and termination. This agreement will remain in effect until the expiration or termination of the Service(s), whichever is earliest. Our obligation to provide the Service(s) depends on your payment of the Fees. It is your responsibility to ensure that we receive timely payment of the Fees. We are not responsible for the Services if the fees have not been paid by the due date.
b) Subscription renewal. Subscriptions of the Online Services will be renewed automatically by default if validity of a subscription period is not set for a specified period. We will attempt to renew Services for which automatic renewal is enabled. Successful renewal requires that outstanding fees have been settled in due time. From time-to-time special promotions may be available only for manual renewal of the Services.
c) Service termination. You may terminate a Service at any time during its Term; however, you must pay all amounts due and owing before the termination is effective. You must deliver the termination in writing to us; we recommend using the MONITZION Portal/Customer Support to post the request. Monitzion reserves the right to suspend and/or terminate the Service(s) until receiving due payments in full. We are not responsible for any deleted or lost Customer Data that results from any suspension or termination of the Service(s).
- Commitment Subscription. If you terminate a Subscription to the Services at any time during the term, you must pay for the remainder of the Term, and no refunds will be provided.
- Consumption (also called Pay-As-You-Go) Subscription. A Subscription may be terminated anytime without any cancellation fee. If you terminate a Subscription to the Online Services within 30 days of the date on which the Subscription became effective, no refunds will be provided, and you must pay consumption and monthly fees for the initial 30 days of the Subscription. If you terminate the Subscription after that you must pay for the consumption upon termination, and periodical fees until the end of the current period. No refunds will be provided.
- Services of more than one month. If you terminate an open-ended Online Services, you must pay for the specified notice period, no refunds will be provided, but no payment will be due after the notice period.
- Limited Offerings. Monitzion may terminate your Subscription to a Limited Offering at any time during the Term immediately without notice.
- Other Subscriptions. For all other Subscriptions, if you terminate a Subscription before the end of the Term, you must pay a fee until end of the notice period and you will receive a refund of any portion of the Subscription fee you have paid for the remainder of the Term; provided, however, no refunds will be provided for partially unused months. A cancellation fee may apply.
Certain Service(s) may be available to you for free. Such Service(s) may only be used by you during your current Term and may not be transferred to other service providers. Upon termination of your Agreement, and/or certain Products or Services, such free Service(s) will also be terminated.
d) Suspension. We may suspend your use of the Online Services if: (1) it is reasonable needed to prevent unauthorized access to Customer Data; (2) you fail to respond to a claim of alleged infringement under Section 11 “Defense of Claims” with a reasonable time; (3) you do not pay amounts due under this agreement; (4) you do not abide by the Acceptable Use Policy in Section 7.a. or you violate other terms of this agreement; or (5) for Limited Offerings, the Subscription becomes inactive from your failure to access the Online Services as described in the Offer Details. If one or more of these conditions occurs, then:
(i) For Limited Offerings, we may suspend your use of the Online Services, your Subscription, and your account immediately without notice.
(ii) For all other Subscriptions, a suspension will apply to the minimum necessary part of the Online Services and will be in effect only while the condition or need exists. We will give notice before we suspend, except where we reasonably believe we need to suspend immediately. We will give at least 2 days’ notice before suspending for non-payment. If you do not fully address the reasons for the suspension within 30 days after we suspend, we may terminate your Subscription and delete your Customer Data without any retention period. We may also terminate your Subscription if your use of the Online services is suspended more than twice in any 12-month period.
Should the Services be suspended due to your fault for any reason, Fees will continue to accrue until the termination or expiry of the term of this Agreement.
a) Limited warranty.
(i) Online Services. We warrant that the Online Services will meet the terms of the SLA during the Term. Your only remedies for breach of this warranty are Fees paid during the Term.
(ii) Software. We warrant for one year from the date you first use the Software that it will perform substantially as described in the applicable Service Description. If Software fails to meet this warranty we will, at your option and as your exclusive remedy, either (1) return the price paid for the Software or (2) repair or replace the Software.
b) Limited warranty exclusions. This limited warranty is subject to the following limitations:
(i) any implied warranties, guarantees or conditions not able to be disclaimed as a matter of law will last one year from the start of the limited warranty;
(ii) this limited warranty does not cover problems caused by accident, abuse or use of the Products in a manner inconsistent with this agreement or our published documentation or guidance, or resulting from events beyond our reasonable control;
(iii) this limited warranty does not apply to problems caused by a failure to meet minimum systems requirements; and
(iv) this limited warranty does not apply to Preview or Limited Offerings.
c) DISCLAIMER. Other than this warranty, we provide no warranties, whether express, implied, statutory, or otherwise, including warranties of merchantability or fitness for a particular purpose. These disclaimers will apply except to the extent applicable law does not permit them.
a) Defense
(i) We will defend you against any claims made by an unaffiliated third party that a Product infringes that third party’s patent, copyright or trademark or makes unlawful use of its trade secret.
(ii) You will defend us against any claims made by an unaffiliated third party that (1) any Customer Data, Customer Solution, or services you provide, directly or indirectly, in using an Online Service infringes the third party’s patent, copyright, or trademark or makes unlawful use of its trade secret; or (2) arises from violation of the Acceptable Use Policy.
b) Limitations. Our obligations in Section 11.a. “Defense” will not apply to a claim or award based on: (i) any Customer Solution, Customer Data, modifications you make to the Online Service, or services or materials you provide or make available as part of using the Online Service; (ii) your combination of the Online Service with, or damages based upon the value of Online Service, Customer Data, or your use of the Online Service after we notify you to stop due to a third-party claim; (iv) your redistribution of the use of the Online Service after we notify you to stop due to a third-party claim; (iv) your redistribution of the Online Service to, or use for the benefit of, any unaffiliated third party; or (v) Online Services provided free of charge.
c) Remedies. If we reasonably believe that a claim under Section 11.a. “Defense (i)” may bar your use of the Online Service, we will seek to: (i) obtain the right for you to keep using it; or (ii) modify or replace it with a functional equivalent and notify you to stop use of the prior version of the Online Service. If these options are not commercially reasonable, we may terminate your rights to use the Online Service and then refund any advance payments for unused Subscription rights.
d) Obligations. Each party must notify the other promptly of a claim under this Section. The party seeking protection must (i) give the other sole control over the defense and settlement of the claim; and (ii) give reasonable help in defending the claim. The party providing the protection will (1) reimburse the other for reasonable out-of-pocket expenses that it incurs in giving that help and (2) pay the amount of any resulting adverse final judgement or settlement. The parties’ respective rights to defense and payment of judgements (or settlement the other consents to) under this Section 11 “Defense of Claims” are in lieu of any common law or statutory indemnification rights or analogous rights, and each party waives such common law or statutory rights.
a) Limitation. The aggregate liability of each party for all claims under this agreement is limited to direct damages up to the amount paid under this agreement for the Online Service during the 6 months before the cause of action arose; provided, that in no event will a party’s aggregate liability of any Online Service exceed the amount paid for that Online Service during the Subscription. For Products provided free of charge, Monitzion’s liability is limited to direct damages up to €100,00 EUR.
b) EXCLUSION. Neither party will be liable for loss of revenue or indirect, special, incidental, consequential, punitive, or exemplary damages, or damages for lost profits, revenues, business interruption, or loss of business information, even if the party knew they were possible or reasonably foreseeable.
c) Exceptions to limitation. The limits of liability in this Section apply to the fullest extent permitted by applicable law, but do not apply to: (1) the parties’ obligations under Section 11 “Defense of Claims”; or (2) violation of the others intellectual property rights.
a) Notices. Notices must be in writing and will be treated as delivered on the date received at the address, date shown on the return receipt, date on the courier confirmation of delivery, or email transmission date. Notices by mail to Monitzion must be sent to the following address (please check the address from https://www.monitzion.com/contact/):
Monitzion Oy
Administration/Legal
Tekniikantie 2
02150 Espoo
FINLAND
Notices to you will be sent to the address that you identify on your account as your invoicing address and administrative contact. Monitzion may provide customers with information and notices about Online Services electronically, including via email, through the MONITZION Portal, or through a web site that Monitzion identifies. Notice is given as of the date it is made available by Monitzion.
b) License Transfers and Assignment. You may not assign this agreement either in whole or in part or transfer licenses without Monitzion’s consent.
c) Severability. If any part of this agreement is held unenforceable, the rest remains in full force and effect.
d) Waiver. Failure to enforce any provision of this agreement will not constitute a waiver.
e) No agency. This agreement does not create an agency, partnership, or joint venture.
f) No third-party beneficiaries. There are no third-party beneficiaries to this agreement.
g) Applicable law and venue. This agreement is governed by the laws of Finland, excluding its rules for choice of law. All disputes arising out of or relating to this Agreement shall be primarily settled in negotiations with good faith between the Parties. In case the negotiations prove unsuccessful after sixty (60) days from the date when a Party has requested in writing to commence with the aforementioned negotiations, the dispute shall be finally settled in arbitration by one (single) arbitrator (widely recognized as an expert in the field of ICT law) in accordance with the Rules of the Arbitration Institute of the Finland Chamber of Commerce. The arbitration shall take place in Helsinki, Finland, and the language to be used in the proceedings shall be English.
h) Entire agreement. This agreement is the entire agreement concerning its subject matter and supersedes any prior or concurrent communications. In the case of a conflict between any documents in this agreement that is not expressly resolved in those documents, their terms will control in the following order of descending priority: (1) this Service Agreement, (2) the Data Processing Agreement, (3) the Terms and Pricing of the Online Service(s), and (4) any other document in this agreement.
i) Survival. The terms in Sections 7, 9, 10, 11, 12 and 13 will survive termination or expiration of this agreement.
j) Force majeure. Neither party will be liable for any failure in performance due to causes beyond that party’s reasonable control (such as fire, explosion, power blackout, earthquake, flood, severe storms, strike, embargo, labor disputes, acts of civil or military authority, war, terrorism (including cyber terrorism), acts or omissions of Internet traffic carriers, actions or omissions of regulatory or governmental bodies (including the passage of laws or regulations or other acts of government that impact the delivery of Online Services), pandemic). This Section will not, however, apply to your payment obligations under this agreement.
k) Contracting authority. If you are an individual accepting these terms on behalf of an entity, you represent that you have the legal authority to enter into this agreement on that entity’s behalf. If you specify an entity, or you use an email address provided by an entity you affiliated with (such as an employer) in connection with a Subscription purchase or renewal, that entity will be treated as the owner of the Subscription for purposes of this agreement.
14. Prior Versions of this Document
This Agreement provides information on the Terms of Services currently available. Earlier version(s) of this document and appendices are available in the MONITZION Portal to the Customers.