This AGREEMENT FOR SERVICES (“Agreement”) is made on the Isolta e-invoicing service registration date (“Effective Date”) by and between:
- (1) Isolta Ltd a company incorporated and registered in Finland with VAT number FI18540478 whose registered office is at Kalevankatu 4, 00100 Helsinki (“Supplier”)
- (2) The customer, a company defined in the Order Form (“Customer”)
Each referred to as a “Party”, and together, the “Parties” to this Agreement,
1 BACKGROUND AND PURPOSE
- 1.1 The Parties have on the Effective Date entered into this Agreement for provision of electronic software based services (“Agreement”). The Supplier makes available to subscribers certain services based on software applications and invoice automation platforms developed by Supplier or its vendors via the internet as specified in its standard service descriptions for the selected Service hereto (“Service” or “Services”).
- 1.2 Supplier has agreed to provide and the Customer has agreed to order and pay for Supplier’s Services subject to the terms and conditions of this Agreement.
- 1.3 This Agreement will cover the provision of the Services to the Customer. New Customer Affiliates and potential new services may be added to the Agreement through a change request process by signing a new order. An affiliate’s right to use the Services and all obligations of Supplier towards such Affiliate shall cease as soon as it no longer is an Affiliate.
- 1.4 In order to setup the Services for the Customer, Supplier may perform certain preparatory project work for mapping the Customer’s needs, needed interfaces at Customer systems etc. and will in such case provide the Customer professional consultancy services as per Supplier Statement of Work (“SOW”) (“Project Services”).
- 1.5 The Project Services or Services may be performed partly or wholly by a third party engaged by the Supplier. The Supplier remains fully responsible for such services by a third party.
2.1 The definitions and rules of interpretation in this clause apply in this Agreement.
Affiliate: shall mean a company that controls a Party, is controlled by a Party or is under common control with a Party. A company shall be presumed to be controlled by another if that other company has more than fifty percent (50 %) of the votes in such entity and is able to direct its affairs.
Authorized Users: those employees, agents and independent contractors of the Customer who are authorized by the Customer to use the Services and the Documentation, as further described in this Agreement.
Business Day: any day which is not a Saturday, Sunday or public holiday in Customer’s country of using or Supplier’s country of providing the Service or Project Service.
Confidential Information: technical and/or commercial information relating to Parties respective businesses, facilities, products, techniques and processes in form of oral disclosure, demonstration, device, apparatus, model, sample of any kind, computer program, magnetic medium, document, specification, circuit diagram, or drawing and visual observation of the aforesaid which information is proprietary to the disclosing party, its Affiliates or to its vendors and is either clearly labeled as such or clearly identified either orally or in writing as Confidential Information.
Customer Data: the customer specific data stored or otherwise provided by the Customer, Authorized Users, or the Supplier on Customer’s behalf for the purpose of using the Services or facilitating the Customer’s use of the Services as well as data generated by the Service based on Customer or Authorized User input. Customer Data shall not include usernames, other names and addresses allocated in the Service for the Customer and any parameters entered into the Service by Supplier, which are considered to be identification information as per Section 8.
Documentation: the documentation made available to the Customer by Supplier from time to time which sets out a description of the Services and the user instructions for the Services.
Effective Date: the date of the last signature of this Agreement.
Initial Agreement Term: the initial term of the Agreement as set out in the Order Form.
Intellectual Property Rights: any registered or unregistered rights in inventions, including patent applications, patents and utility models, design rights, copyrights, trademarks, trade names and services names, domain names, knowhow and other trade secret rights and all other intellectual property rights, derivatives thereof and forms of protection of a similar nature anywhere in the world.
Normal Business Hours: Normal hours of business in the Customer’s country of using or Supplier’s country of providing the Service or Project Service as agreed by the Parties.
Order Form: The applicable order document (Isolta e-invoicing service registration form) as in which the Parties have defined the relevant details for the ordering and invoicing of the selected Services.
Service(s): the services as described in www.isolta.com -website and in each respective part for each service in each Supplier standard Service specific service description.
Service Center(s): the service centers in which the Services are produced and offered to the Customer.
Software: the software applications owned and operated by the Supplier or its vendors producing the offered Service and installed at the servers at Service Centers.
Service Fees: the service fees payable by the Customer to Supplier for the use of the agreed Services, as agreed by the Parties, or as set forth in the Supplier price list as in force from time to time.
Service Level Agreement or SLA: the applicable standard Supplier service specific service level agreement, setting agreed service levels and requirement for a Service, key performance indicators and processes undertaken to achieve the agreed service level.
3 SERVICES AND PROJECT SERVICES
- 3.1 Supplier shall provide the Customer the Services as per its standard Service description describing each Service. Supplier has the right to
select and change, without notice, the underlying technology for producing the functionality of a Service.
- 3.2 The Services shall be delivered from the Service Center(s) specified by Supplier. Supplier shall be responsible for such Service Center(s) and shall have the right to select and change the Service Center(s) used for the production of the Services.
- 3.3 Supplier shall perform Project Services for preparing the use of the Service and its activation for the Customer. The implementation project, testing of environment and connections and other needed functionalities shall be performed by Supplier according to its standard Statement of Work (“SOW”), for each selected Service as separately charged professional services.
4 SUPPLIER’S OBLIGATIONS
4.1 Supplier shall
- a) make sure that Services will be performed in accordance with the Agreement and Service descriptions and with reasonable skill and care by employing qualified personnel;
- b) make sure that Project Services will be performed in accordance with the Agreement, agreed Statement of Work (“SOW”) and with reasonable skill and care by employing qualified personnel;
- c) comply with all applicable laws and regulations with respect to its activities under the Agreement;
- d) use commercially reasonable efforts to carry out all other Supplier’s responsibilities set out in the Agreement in a timely and efficient manner;
- e) obtain and shall maintain all necessary licenses, consents, and permissions necessary for Supplier, its contractors and agents to perform their obligations under the Agreement, including without limitation the Services or Project Services; and
- f) ensure that its network and systems comply with the relevant specifications described in the Agreement.
5 CUSTOMER’S OBLIGATIONS
- 5.1 The Customer shall:
- 5.2 The Customer shall be liable for data provided or transmitted by it to the Service in Service Centers. Furthermore, the Customer has full responsibility of the Customer Data and data transmitted through the Service, including but not limited to non-interference with the technical operation of the Services (such as malicious code, viruses, computer intrusions, infringements and illegal tampering of data), non- infringement of third party copyrights and compliance with the applicable laws or regulations issued by authorities.
6 SERVICE LEVELS AND ERROR CORRECTION
- 6.1 The Service is provided "AS IS" basis and Supplier makes no warranties of any kind of any service levels, reliability, availability without interruption, merchantability or fitness for a particular purpose or that the Service would be free from errors;
- 6.2 Supplier has the right to suspend the Service if the Customer breaches the Agreement.
- 6.3 Supplier is entitled to interrupt the delivery of Services temporarily if it is necessary due to technical reasons concerning the delivery of Services as per the Service Level Agreement. Supplier will use commercially reasonable efforts so that the interruption lasts only a short time and it will cause the Customer as little harm as possible. Supplier will inform the Customer of the interruption as soon as practicably possible.
7.1 Supplier has the right to use subcontractors in performing the Service and in the processing of personal data. Supplier shall ensure that such subcontractors are subject to equivalent requirements regarding data protection, as those set out in the Agreement and will inform the Customer about the subcontractors used and changes in subcontractors. The Customer shall have the right to object such changes made in subcontractors by terminating the Service with one (1) month's written notice before the effective date of the change. The subcontractors currently used by Supplier for the processing of personal data are listed in the Service at www.isolta.com/subcontractors.
8 IDENTIFICATION INFORMATION FOR USE OF SERVICE
- 8.1 Supplier shall assign user identifiers, numbers, addresses and other such identification to be used by the Customer (hereinafter “Identification Information”) in using the Service(s). Supplier is entitled to change the Identification Information, if required for regulatory or technical reasons. Supplier shall inform the Customer about such changes at least two (2) months before the changes enter into force. Notwithstanding the aforesaid, Supplier shall inform the Customer of changes caused by changes in regulations issued by authorities or by Supplier having an established reason to suspect that the data security of the Services or the Customer so require, as soon as reasonably possible before or after such change.
- 8.2 Customer is responsible for making sure that the Identification Information is used only by its employees and is kept confidential. Customer is responsible for any use or possible misuse of Identification Information given to it. In the event that a third party has illegally attained the possession of Identification Information of the Customer, the Customer shall inform Supplier’s customer services immediately thereof. Supplier is entitled to close the account with immediate effect after having received the above-mentioned information.
- 8.3 Such information may be used also in national and international listings for the benefit of accelerating the use of e-invoicing Services by the Customer. For this purpose Supplier is entitled to draw up a register of non-confidential Identification Information of e-invoicing address details of the Customer (excluding any sensitive or confidential information or user identifier) and the Customer contact persons necessary to offer the Services and for example to promote electronic invoicing sending and receiving, and to publish them in a written or electronic list.
9 CUSTOMER DATA
- 9.1 The Customer shall own all rights, title and interest in and to all of the Customer Data and shall have sole responsibility for such Customer Data as per Section 5.2.
- 9.2 The Customer shall provide Supplier the Customer Data requested by it that is necessary for the delivery and operation of Services to the Customer, including testing of the results of the Project Services, and to review the correctness of the recorded or registered Customer Data. The Customer shall inform Supplier without delay about the change of its Customer Data. The Customer shall be responsible to inform its contact persons that their contact information and possibly other identifiable information included in the Customer Data is disclosed to Supplier and obtain appropriate consents where necessary.
- 9.3 Supplier shall be entitled to use and also commits to use, assign and transfer the Customer Data only for the purposes of providing the Services as per the Agreement.
- 9.4 Supplier is entitled to use the Customer Data for the purpose of analyzing and improving the Services.
10 DATA PRIVACY
- 10.2 If Supplier processes any personal data on the Customer’s behalf when performing its obligations under the Agreement, the Parties record their intention that the Customer shall be the data controller and Supplier shall be a data processor in any such case.
- 10.3 The Customer acknowledges and agrees that where specific Services so require personal data may be transferred or stored outside the country where the Customer and the Authorized Users are located in order to carry out the Services and Supplier’s other obligations under the Agreement. Supplier shall not transfer Customers' personal data outside of EU/EEA without adequate safeguards required by applicable data protection law, such as standard model clauses.
- 10.4 The Customer shall ensure that the Customer or Authorized user is entitled to transfer the relevant personal data included in Customer Data to Supplier so that Supplier may lawfully use, process and transfer the personal data in accordance with the Agreement on the Customer’s behalf.
- 10.5 The Customer shall ensure that the relevant third parties have been informed of, and have given their consent to, such use, processing, and transfer as required by all applicable data protection legislation.
- 10.6 Supplier shall process the personal data only in accordance with the terms of the Agreement and any lawful instructions reasonably given by the Customer from time to time.
- 10.7 Each Party shall take appropriate technical and organizational measures against unauthorized or unlawful processing of the personal data or its accidental loss, destruction or damage.
- 10.8 When implementing these security measures, Supplier takes into account the state of the art and the costs of implementation, the nature, scope, context and purposes of the processing as well as the risks inherent in the processing of personal data carried out in accordance with the Agreement. Supplier must ensure that persons who have the right to process personal data are subject to confidentiality obligations.
- 10.9 Supplier shall assist the Customer in complying with its obligations under applicable data protection laws, including assisting in responding to requests by data subjects and supervisory authorities. The Customer shall be responsible for compensating costs and expenses incurred to Supplier. Requests shall be made in writing.
- 10.10 Supplier shall make information available to the Customer that is reasonably necessary to demonstrate compliance with the applicable data protection laws. Supplier shall allow for and contribute, within reasonable limits, to audits conducted by the Customer or an auditor authorised by the Customer, provided that the auditor is not a competitor to Supplier and it commits to a standard non-disclosure agreement. The Customer must give prior notice at least 21 days before the auditing. The Customer shall be liable for the costs of the auditing.
- 10.11 The nature, subject-matter and purpose of the data processing carried out by Supplier on behalf of the Customer are related to the performance of the financial administration software in the form of the Service in accordance with the Agreement. The types of personal data processed under the Agreement are person's contact information, technical material, CRM data, accounting material, and other financial management material. The categories of data subjects processed the Agreement are Customer’s contact persons, Customer’s customers and other stakeholders. The processing of personal data shall primarily end upon termination of the Agreement.
11 FEES AND INVOICING
- 11.1 The Customer shall pay Supplier for the Services and Project Services, in accordance with the pricing and invoicing periods as agreed by the Parties. Pricing for new services or additional work shall be subject to Supplier price list as in force from time to time.
- 11.2 All prices quoted are exclusive of VAT or any other applicable sales tax as the case may be, which will be added to the prices and invoices to the Customer.
- 11.3 Payments shall be made at the latest on their due dates specified in the invoice. If not specifically agreed upon, the term of payment shall be fourteen (14) days net from the date of the invoice.
- 11.4 In case the Customer objectively and in good faith disagrees with the content of an invoice it must dispute the invoice by giving a notification in writing to Supplier after which the Parties will within 30 days discuss to resolve such dispute. The Customer shall pay the undisputed portion of the invoice.
- 11.5 Any outstanding overdue sums shall be subject to interest at the annual rate allowed under the applicable law on any overdue payments.
- 11.6 Supplier has a right to interrupt the customer’s service if a payment has not been made by the maturity date. The customer is liable for debt collection agency fees and other legal expenses caused by its delay.
- 11.7 Supplier reserves a right to change the service fees by notifying the customer in writing at least one (1) month before the change comes into force.
- 12.1 Non-infringement Warranty: Supplier represents and warrants to the best of its knowledge and belief that the Service, when properly used as contemplated herein as well as the Project Services, will not infringe any Intellectual Property Rights. Upon being notified of a claim of such infringement, Supplier shall at its option: (i) defend through litigation or obtain through negotiation the right for the Customer to continue using the Service; (ii) rework the Service so as to render it non-infringing while preserving the original functionality; (iii) replace the Service with functionally equivalent service; or (iv) terminate the affected part of the Service and refund the fees that may have been paid in advance for the affected part of the Service. If none of the foregoing alternatives provides an adequate remedy, the Customer may terminate all or any part of the Agreement.
- 12.2 Limited Performance Warranty: Supplier represents and warrants during the Agreement period that the Service will operate substantially in accordance with the applicable Documentation and Service Descriptions; provided, that (i) the Service is implemented and operated in accordance with all instructions supplied by Supplier; (ii) the Customer notifies Supplier of any defect in the Service within ten (10) calendar days after the appearance thereof; (iii) the Customer has properly used all updates recommended by Supplier with respect to any third party software that materially affects the performance of the Service; (iv) the Customer has properly maintained all associated equipment, software and environmental conditions in accordance with applicable specifications and industry standards; (v) the Customer has not introduced other equipment or software creating an adverse impact on the Service; and (vi) the Customer has paid all amounts due hereunder and is not in default of any provision of the Agreement. Should, after investigation of a Customer’s notification of an alleged defect, be determined that there is no defect in the Service, Supplier is entitled to charge the Customer the expenses incurred from such investigation.
- 12.3 Supplier does not warrant the uninterrupted, secure, or error-free operation of the Service or that Supplier is able to prevent all third party disruptions of the Service or that Supplier is able to correct all defects.
13 INTELLECTUAL PROPERTY RIGHTS
- 13.1 All Intellectual Property Rights related to the Service and Project Services belong to Supplier or its vendors and shall remain in their ownership. Each Party owns its respective Intellectual Property Rights and no Intellectual Property Rights shall be granted by signing the Agreement or the provision of the Services or Project Services.
- 13.2 In case the intellectual property rights of a third party are infringed by the Service, Supplier shall remedy such infringement as per Section 12.1 above.
- 13.3 Supplier shall indemnify Customer against claims that the Service infringes any of the above-mentioned rights of third parties, provided that the Customer informs Supplier of the claim in writing immediately and permits Supplier to have sole control to defend or settle the claims, and subject to Supplier reimbursing the Customer of its reasonable costs, including necessary and reasonable already incurred legal costs, gives Supplier all available necessary information, reasonable assistance and authorization to do so. Supplier shall be liable for the payments of damages based on a settlement agreed to by Supplier or awarded in a trial to a third party, provided that the Customer has acted in accordance with the foregoing.
- 13.4 However, Supplier shall not be liable for any claim, which:
- 13.5 The herein mentioned shall create the entire liability of Supplier for infringement of third party intellectual property rights.
- 14.1 Each Party shall maintain confidentiality and refrain from disclosing or using for any other purpose than in connection with the Agreement all or any part of the Confidential Information provided by the other Party in connection with the Agreement.
- 14.2 Except as otherwise provided in the Agreement, all Confidential Information and documents containing said Confidential Information shall remain the property of the Party originally disclosing the Confidential Information.
- 14.3 Each Party shall make the Confidential Information, or any portion thereof, provided by the other Party available to only those of its employees who need to know the Confidential Information in connection with the Agreement. The Parties shall inform all persons (including its employees, advisers, subcontractors or agents, and the employees of the subcontractors or agents) to whom a disclosure of Information is made, as permitted herein, of the obligations of confidentiality.
- 14.4 The Parties shall disclose Confidential Information, or any portion thereof, to subcontractors or agents only with the written permission of the Party from whom the Confidential Information was originally obtained, and only on the condition that such subcontractor or agent executes and delivers a written agreement incorporating provisions on confidentiality no less restrictive than those of this Article 11.
- 14.5 The confidentiality obligations in is Article 14 shall not apply to Confidential Information, which:
a) is in the public domain at the time of disclosure or later becomes part of the public domain through no fault of the receiving Party; or
b) was known to the receiving Party prior to disclosure by the disclosing Party; or
c) is disclosed to the receiving Party by a third party who did not obtain such Confidential Information, directly or indirectly, from the disclosing Party.
- 14.6 Upon the expiration of the Agreement between the Parties or the request of the disclosing Party, whichever is soonest, the Parties shall return to the disclosing Party any confidential documents or materials disclosed under the Agreement.
- 14.7 Notwithstanding the provisions of this Article 14 Supplier has the right to disclose any Confidential Information received from the other Party under the Agreement to its Affiliates as it deems necessary.
- 14.8 Supplier is entitled to include the Customer in its reference list. With the written consent of the Customer (which consent shall not be unreasonably withheld) Supplier shall be entitled to make announcements and give press releases in connection with the entering into the Agreement, with respect to information on the value of the order or project in question, the parties involved and any other relevant information. Nothing herein shall prevent the Parties from making any announcement of filing required by law, regulations or by the rules and regulations of any stock exchange on which it is listed.
15 LIMITATION OF LIABILITY
15.1 IN ANY EVENT, REGARDLESS OF THE FORM OF THE ACTION, WHETHER FOR BREACH OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY IN TORT OR OTHERWISE, THE CUSTOMER’S EXCLUSIVE REMEDY FOR CLAIMS ARISING IN ANY WAY IN CONNECTION WITH THIS AGREEMENT, FOR ANY CAUSE WHATSOEVER, INCLUDING BUT NOT LIMITED TO ANY FAILURE OR DISRUPTION OF SERVICE PROVIDED HEREUNDER, IS LIMITED TO PAYMENT OF DAMAGES IN AN AMOUNT NOT TO EXCEED THE AMOUNT PAID BY THE CUSTOMER FOR THE SERVICES DURING THE SIX (6) MONTH PERIOD PRECEDING THE DATE THE CLAIM AROSE.
- 15.2 EXCEPT FOR CASES OF GROSS NEGLIGENCE, INTENTIONAL MISCONDUCT OR BREACHES OF ARTICLE 14 (CONFIDENTIALITY), IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY FOR ANY INDIRECT OR CONSEQUENTIAL LOSS OR DAMAGES HOWSOEVER ARISING, INCLUDING WITHOUT LIMITATION, LOST REVENUES OR PROFITS, EVEN IF THE PARTY HAS PREVIOUSLY BEEN INFORMED OF THE POSSIBILITY THAT SUCH LOSS OR DAMAGE MAY ARISE. “INDIRECT OR CONSEQUENTIAL LOSS OR DAMAGES” SHALL MEAN ANY ECONOMIC LOSS INCLUDING, WITHOUT LIMITATION, ANY DIRECT OR INDIRECT LOSS OF PROFITS, ANTICIPATED SAVINGS, BUSINESS, CONTRACTS, REVENUE, TIME OR GOODWILL OR LOSS OR HARM OF DATA.
- 15.3 THE CUSTOMER HAS NO CONTRACTUAL RELATIONSHIP WITH THE SUPPLIER’S VENDORS AND THE CUSTOMER IS NOT A THIRD PARTY BENEFICIARY OF ANY AGREEMENT BETWEEN SUPPLIER AND ITS VENDORS.
- 15.4 THE CUSTOMER UNDERSTANDS AND AGREES THAT THE SUPPLIER’S VENDOR SHALL HAVE NO LEGAL, EQUITABLE, OR OTHER LIABILITY OF ANY KIND TO THE CUSTOMER.
- 15.5 THE SERVICE IS FOR THE CUSTOMER’S USE ONLY AND THE CUSTOMER MAY NOT RESELL THE SERVICE TO ANY OTHER PARTY.
- 15.6 Any claims for damages hereunder must be made within six (6) months from the time at which the party making the claim became aware of the event that gave rise to the claim. Such claims may, under no circumstances, be brought later than one (1) year from the event that gave rise to the claim in question.
16 TERM AND TERMINATION
- 16.1 The Agreement enters into force on the Effective Date. Each party may terminate the Agreement with one (1) month’s notice.
- 16.2 Upon termination of the Agreement or upon the Customer’s written request, Supplier must either destroy or return to the Customer personal data processed. Supplier will delete all personal data within one (1) months' time of the termination of the Agreement.
17 ASSIGNMENT OF AGREEMENT
17.1 The Customer is not entitled to transfer the Agreement to any third party without a prior written consent of the other Party.
18.1 Excluding applications of either Party’s personnel based on general open recruitment notices, neither Party shall actively recruit an employee of the other Party, who has taken or takes care of essential duties relating to the Services or Project Services, or make any other arrangement that would result in the employment of such employee by the Party, within six (6) months after the earlier of: end of the employment with a Party or the end of the performance of the Services or Project Services.
19.1 All notices submitted or given hereunder shall be addressed to the contact persons given in the Agreement, Order Form or as notified by such contact persons or their successors from time to time. All notices shall be in writing. Notices excluding normal daily correspondence between the Customer and Supplier (which can be done by email also) shall be sent by telefax or e-mail followed by an original letter by courier or certified mail.
20 FORCE MAJEURE
- 20.1 In the event that a Party is prevented from fulfilling its obligations under the Agreement due to circumstances beyond its control, which it should not reasonably have taken into consideration at the time of signing the Agreement and which it could not avoid or overcome, such party may postpone the time of performance and shall be relieved from liability for damages and other sanctions.
- 20.2 Responsibilities and obligations specified in the Agreement are subject to immediate fulfillment after the end of Force Majeure circumstances unless otherwise agreed to jointly in writing by both Parties.
21 APPLICABLE LAW AND DISPUTE RESOLUTION
- 21.1 This Agreement shall be governed by the laws of Finland.
- 21.2 Any dispute, controversy or claim arising out of or in connection with this Agreement, or the breach, termination or invalidity thereof, that cannot be settled by negotiations between the Parties, shall be finally settled in District Court of Helsinki, Finland.
- 21.3 Nothing herein shall be deemed to prevent a Party from seeking interim injunctive relief or such other relief as may be available subject to applicable law.
22.1 Nothing in this Agreement is intended to or shall operate to create a partnership between the Parties, or authorise either Party to act as agent for the other, and neither Party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way
(including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
- 22.2 This Agreement does not confer any rights on any person or party (other than the Parties to the Agreement and, where applicable, their successors and permitted assigns).
- 22.3 Failure or delay on the part of either Party to exercise any right, power or privilege hereunder shall not operate as a waiver thereof. A waiver of any right under the Agreement is only effective if it is in writing and it applies only to the Party to whom the waiver is addressed and to the circumstances for which it is given.
- 22.4 Unless specifically provided otherwise, rights arising under the Agreement are cumulative and do not exclude statutory rights provided by law.
- 22.5 If any part of this Agreement is held to be invalid or unenforceable such determination shall not invalidate any other provision of this Agreement; and the Parties shall attempt, through negotiations in good faith, to replace any part of this Agreement so held to be invalid or unenforceable. The failure of the Parties to reach agreement on the replacement provision shall not affect the validity of the remaining part of this Agreement.