IT2022 GENERAL TERMS AND CONDITIONS (IT2022 YSE)
IT2022 GENERAL TERMS AND CONDITIONS (IT2022 YSE)
1. APPLICATION
1.1 These general terms and conditions apply to the sale and transfer of rights to use IT products and services.
2. DEFINITIONS
2.1 Open source means software or software component that (a) is licensed under open source license terms mentioned on www.opensource.org/licenses; (b) meets the open source definition presented on www.opensource.org/docs/osd; or (c) is otherwise licensed under license terms that are in content accordance with the requirements presented on www.opensource.org/docs/osd.
2.2 Service means the installation, maintenance, support, consulting, training or software service or other service that is the subject of the agreement.
2.3 Subject of delivery means the products and services that are the subject of the agreement.
2.4 Product means the device, medium, software, information system or other corresponding product that is the subject of the agreement, as well as the user manual or other documentation related to it.
2.5 Off-the-shelf software means software or software component that is marketed or licensed to multiple customers, as well as the user manual or other documentation related to it and possible data medium.
3. SUBJECT OF DELIVERY AND APPLICABLE TERMS
3.1 The parties define the subject of delivery in writing.
3.2 The parties agree in writing if the product contains open source or off-the-shelf software.
3.3 Open source is primarily subject to the terms of such open source included as part of the agreement instead of these general terms and conditions and possible IT2022 special terms.
3.4 Off-the-shelf software is primarily subject to the terms of such off-the-shelf software included as part of the agreement instead of these general terms and conditions and possible IT2022 special terms.
4. PRICES
4.1 The parties agree in writing on the price, pricing and price changes of the subject of delivery. To the extent that the parties have not agreed otherwise in writing on the price, pricing and price changes of the subject of delivery, the terms in sections 4.2 – 4.9 apply.
4.2 Prices are presented in euros and the billing currency is euro.
4.3 Unless a price has been agreed for a product or service in the agreement or otherwise, the price according to the provider's price list in effect at the time of order applies for such product or service.
4.4 If the price of a product or service is fully or partially tied to a price change basis, the price is adjusted accordingly for changes if the change is at least 2 percent. For the price change basis, the base number or value according to the agreement signing date is followed. For prices tied to exchange rates, the price is determined according to the European Central Bank's average rate on the delivery date, except for products or services billed in periods, for which the price is determined according to the European Central Bank's average rate on the billing date.
4.5 The provider has the right to change the recurring fee of a product or service by notifying the customer in writing of the change and the reasons for the change at least 90 days before the effective date of the change. The customer then has the right to terminate the agreement for such product or service to end on the effective date of the price change by notifying this in writing at least 30 days before the effective date of the change. The customer then also has the right to terminate the agreement simultaneously for such other products and services that the customer can no longer essentially use due to the aforementioned termination. The price change has no effect on payments for billing periods that began before its effective date.
4.6 Prices include public fees determined by authorities in effect on the agreement signing date, excluding value added tax. Value added tax is added to prices according to regulations in effect at the time. If the amount or basis of public fees determined by authorities changes due to a regulatory change or change in taxation practice, prices change accordingly.
4.7 The provider has the right to charge separately for usual and reasonable travel and accommodation costs and daily allowances. The provider also has the right to charge separately for half of the agreed hourly rate for travel time for a round trip over 60 kilometers required by the service. If the round trip is at most 60 kilometers, travel time is not charged. Other travel arrangements are agreed separately.
4.8 The provider has the right to charge separately for work ordered by the customer in writing that is not part of the subject of delivery according to agreed charging principles. The provider has the right to charge for such work also surcharges according to agreed charging principles if the customer orders the work in writing to be done outside the provider's normal working hours.
4.9 The provider has the right to charge separately for additional costs caused by incorrect information provided by the customer or other similar reason attributable to the customer according to agreed charging principles.
5. PAYMENT TERMS
5.1 The parties agree in writing on payment items and terms. To the extent that the parties have not agreed otherwise in writing on payment items and terms, the terms in sections 5.2 – 5.4 apply.
5.2 The provider has the right to invoice products upon delivery and services after their completion. However, the provider has the right to invoice recurring fees or other fees billed in periods in agreed billing periods in advance or, if billing periods have not been agreed in writing, monthly in advance. If the parties have agreed on an acceptance procedure for the delivery or part of it, the provider however invoices time-based fees monthly in arrears and other delivery-based fees after acceptance of such delivery or part of it.
5.3 Payment term is 14 days net from delivery date or invoice date, whichever is later.
5.4 Late payment interest is according to interest law.
6. SUBCONTRACTING
6.1 Unless otherwise agreed in writing, a party has the right to have tasks belonging to the agreement performed by a subcontractor. The party must provide the other party upon request with necessary information about subcontractors performing tasks related to the subject of delivery.
6.2 A party is responsible for ensuring that its subcontractor complies with obligations set for the party. A party is responsible for its subcontractor's actions as for its own.
6.3 A party commits to contribute to ensuring that its subcontractors cooperate with each other when necessary with the other party's subcontractors in tasks related to the subject of delivery.
7. CONFIDENTIALITY
7.1 A party commits to keeping confidential materials and information received from the other party that are marked as confidential or should be understood as such, and not to use them for purposes other than those in accordance with the agreement. However, the confidentiality obligation does not apply to material or information (a) that is generally available or otherwise public, (b) that the receiving party has received from a third party without a confidentiality obligation, (c) that was in the receiving party's possession without a confidentiality obligation before receiving it from the other party, (d) that the receiving party has independently developed without utilizing material or information received from the other party, or (e) that the receiving party is obligated to disclose based on law or authority order.
7.2 A party must immediately stop using confidential material and information received from the other party and upon request return or destroy such material in a reliable manner with all copies when the agreement ends or when the party no longer needs such material or information for purposes in accordance with the agreement. However, a party has the right to retain material required by law or authority order.
7.3 A party has the right to use professional skills and experience acquired in connection with the delivery.
7.4 Rights and obligations related to this section 7 remain in effect after the agreement ends as well. Unless otherwise agreed in writing, these rights and obligations end 5 years after the agreement ends. However, the agreement ending has no effect on rights and obligations related to this section 7 if applicable legislation requires a longer confidentiality obligation than stated above in this section 7.4.
8. DATA SECURITY AND BACKUP
8.1 A party and its subcontractors must ensure data security and backup by complying with arrangements agreed in writing by the parties and legislation binding the party. To the extent that the parties have not agreed otherwise in writing on data security and backup, the terms in sections 8.2 – 8.4 apply.
8.2 A party must ensure that the part of the subject of delivery under its responsibility according to the agreement and the party's own environment, such as devices, communication network, service production facilities and office facilities under the party's responsibility, are protected against data security risks according to data security practices followed and appropriate by the party and that procedures related to protection and data assurance are followed. Neither party is responsible for the data security of the general communication network or possible disruptions there.
8.3 A party has an obligation to notify the other party without undue delay of significant data security risks, data breaches or suspicions thereof that it has detected that endanger the subject of delivery or its use. A party must take immediate measures to remove or reduce the impact of a data breach. A party has an obligation to contribute to the investigation of data breaches.
8.4 A party is responsible for taking backups of its own data and files and checking their functionality.
9. PROCESSING OF PERSONAL DATA
9.1 If the provider processes personal data on behalf of the customer, IT2022 EHK special terms on processing of personal data apply to the processing, unless otherwise agreed in writing.
10. FORCE MAJEURE
10.1 A party is not responsible for delay or damage resulting from an obstacle outside the party's sphere of influence that the party could not reasonably be expected to have taken into account at the time of making the agreement and the consequences of which the party also could not reasonably have avoided or overcome. Unless otherwise shown, force majeure is considered to include, for example, war or rebellion, earthquake, flood or other comparable natural disaster, interruption of general traffic, general telecommunications or general electricity distribution, import or export ban, strike, lockout, boycott or other comparable labor dispute measure. Unless otherwise shown, a strike, lockout, boycott or other comparable labor dispute measure is also considered force majeure when the party itself is the target of or involved in it.
10.2 Force majeure encountered by a party's subcontractor is also considered the party's force majeure if the performance that is the subject of subcontracting cannot be done or obtained elsewhere without unreasonable costs or essential delay.
10.3 A party must immediately notify the other party in writing of force majeure and its cessation.
11. INFRINGEMENTS OF INTELLECTUAL PROPERTY RIGHTS
11.1 The provider is responsible for ensuring that the subject of delivery does not infringe third-party intellectual property rights in the agreed delivery or use country. Unless otherwise agreed in writing, the agreed delivery and use country is Finland.
11.2 The provider is obligated to defend the customer at its cost if a claim is made against the customer that the subject of delivery infringes third-party intellectual property rights in the agreed delivery or use country, provided that the customer immediately notifies the provider in writing of the claim made and allows the provider to use the right to respond and gives the provider upon the provider's request and at its cost all available necessary information and assistance and necessary authorizations. The provider is responsible for paying damages awarded or agreed to a third party if the customer has acted as described above.
11.3 If the provider justifiably considers or it is established in legal proceedings that the subject of delivery infringes third-party intellectual property rights in the agreed delivery or use country, the provider has the right and obligation at its cost and at its choice either (a) to obtain for the customer the right to continue using the subject of delivery, (b) to replace the subject of delivery with a corresponding product or service in accordance with the agreement, or (c) to modify the subject of delivery so that the infringement ceases and the modified subject of delivery is still in accordance with the agreement. If none of the aforementioned alternatives is possible for the provider on reasonable terms, the customer must stop using the subject of delivery upon the provider's request and return it, and the provider must reimburse the customer for the price paid for the subject of delivery reduced by a portion corresponding to the actual use time.
11.4 However, the provider is not responsible for a claim that (a) is made by an entity that has control over the customer or over which the customer has control as control is defined in accounting law; (b) results from a change made by the customer to the subject of delivery or compliance with instructions given by the customer in writing; (c) results from using the subject of delivery together with a product or service other than one provided or approved by the provider, or (d) could have been avoided by using a published and provider-provided product or service in accordance with the agreement corresponding to the subject of delivery that the provider offers to the customer for use without separate charge.
11.5 The provider's liability for infringements of intellectual property rights of the subject of delivery is limited to what is agreed in this section 11.
12. DELAY AND TERMINATION OF AGREEMENT
12.1 If a party detects that delay is occurring or is likely, the party must immediately notify the other party in writing of the delay and its effects on the delivery schedule.
12.2 If it has become clear that fulfillment of the agreement is delayed due to force majeure by more than 60 days, the party that has not encountered force majeure has the right to terminate the agreement in whole or in part without either party having the right to claim damages.
12.3 If delivery has been delayed due to a reason attributable to the other party and does not occur even within a reasonable additional period of at least 30 days set by the party in writing, the party has the right to terminate the agreement for those products and services whose delivery has been delayed, provided that the delay has essential significance for the party and the other party understood this or the other party should have understood it.
12.4 A party has the right to terminate the agreement in whole or in part also when the other party otherwise essentially breaches the agreement and the breach has essential significance for the party. However, if the breach is remediable, termination of the agreement requires that the other party has not remedied its breach within a reasonable period of at least 30 days set by the party in writing.
12.5 The provider has the right to terminate the agreement in whole or in part also when the customer does not perform a due and essentially correct payment within 30 days of a written notice about the payment becoming due and the customer has not provided the provider with acceptable security for performing payments based on the agreement.
12.6 A party has the right to terminate the agreement in whole or in part before the time for fulfilling the agreement is at hand if it has become clear that the other party commits a breach of agreement that entitles termination of the agreement. However, termination of the agreement has no effect if the other party immediately upon receiving the termination notice either provides acceptable security for fulfilling the agreement or presents another reliable clarification of fulfilling the agreement.
12.7 If the customer terminates the agreement for some product or service, the customer has the right to terminate agreements between the parties simultaneously also for such other products and services concerning the same delivery entity that the customer can no longer essentially use due to the aforementioned termination.
12.8 A party must notify the other party in writing of termination of the agreement for the termination to be valid.
12.9 If a party has the right to terminate the agreement, the party also has the right to withhold its performance by notifying the other party in writing of this. A party's right to withhold its performance ends if the other party immediately upon receiving the notice about withholding either provides acceptable security for fulfilling the agreement or presents another reliable clarification of fulfilling the agreement.
13. LIABILITY AND LIMITATIONS OF LIABILITY
13.1 The parties agree in writing on liability and limitations of liability. To the extent that the parties have not agreed otherwise in writing on liability and limitations of liability, the terms in sections 13.2 – 13.5 apply.
13.2 A party's liability for damages based on the agreement to the other party is in total at most 40 percent of the VAT-free total price of the subject of delivery, excluding possible delay, service level or other contractual penalties or compensations. However, if the subject of delivery is solely a fixed-term or indefinitely valid product or service billed as recurring fees, the liability for damages is in total at most the calculated VAT-free monthly price of such product or service at the time of breach multiplied by 6, excluding possible delay, service level or other contractual penalties or compensations. If a party has an obligation to perform delay, service level or other contractual penalty or compensation, the party has an obligation to perform additional damages only to the extent that the amount of damage exceeds the delay, service level or other contractual penalty or compensation.
13.3 A party is not responsible for indirect damage. Indirect damage is considered to include, for example, lost profit or damage resulting from reduction or interruption of production or turnover.
13.4 A party is not responsible for destruction, loss or change of the other party's data or files and damage and costs resulting from this, such as costs of recreating files. However, this section 13.4 does not apply if a party's obligation according to the agreement is to back up the other party's data and files or to ensure data security and the party has breached this obligation.
13.5 Limitations of liability do not apply to liability based on section 7 or 11 or damage caused by (a) unlawful transfer, copying or use of the subject of delivery against law or agreement, (b) breaching section 15.1, or (c) intentionally or with gross negligence.
14. APPLICABLE LAW AND DISPUTE RESOLUTION
14.1 Finnish law applies to the agreement.
14.2 Disputes arising from the agreement are resolved finally in arbitration according to the Arbitration Rules of the Central Chamber of Commerce. One arbitrator resolves the dispute. However, a claim concerning a monetary receivable can also be resolved in the general court of the respondent's domicile if the respondent does not dispute its payment obligation.
14.3 If the parties agree on this in writing, disputes arising from the agreement are resolved in a general court.
15. EXPORT RESTRICTIONS
15.1 The customer commits to complying with laws and authority orders of Finland and the product's country of origin notified by the provider to the customer that concern export of products and technical information from Finland, and not to otherwise transfer products or technical information to a third party, transfer to which violates laws or authority orders of Finland or the product's country of origin notified by the provider to the customer.
16. TRANSFER AND AMENDMENT OF AGREEMENT
16.1 A party does not have the right to transfer the agreement even in part without the other party's written consent. However, consent cannot be denied without justified reason if the transferee commits in writing to comply with the agreement terms and the transfer is to an entity belonging to the same accounting law-based group as the party or in connection with a business transfer.
16.2 However, the provider has the right to transfer receivables based on the agreement to a third party by notifying the customer in writing of the transfer.
16.3 Changes or additions to the agreement must be agreed in writing for them to be valid.