Control.dev service agreement
PLEASE READ THESE TERMS CAREFULLY. BY REGISTERING FOR, ACCESSING, OR USING THE SERVICE, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THESE TERMS. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, DO NOT ACCESS OR USE THE SERVICE.
Agreement Formation and Parties
Agreement Formation
This Service Agreement ("Agreement") may be formed by: (a) execution of an Order Form referencing these terms; or (b) the Customer's registration for, access to, or use of the Software Service, including acceptance through the Supplier's online invitation or registration process.
By registering for, accessing, or using the Software Service, the Customer acknowledges that it has read, understood, and agrees to be bound by these terms. If the Customer does not agree, it must not access or use the Software Service.
Parties
The parties to this Agreement are:
Supplier: Control.dev (Finata Oy, Business ID 3483671-1), Kaivokatu 10 A 705, 00100 Helsinki, Finland
Customer: The entity or individual identified in the Order Form or, where no Order Form exists, the entity or individual accepting these terms through registration or use of the Software Service.
"Parties" means the Supplier and the Customer, and "Party" means either the Supplier or the Customer.
References to "Order Form" in this Agreement shall, where no Order Form has been executed, mean the information provided by the Customer during registration or as otherwise agreed between the parties in writing (including email).
Background
The Supplier is in the business of developing and providing a financial data related data management service that it offers to its customers as a software service. Furthermore, the Supplier provides professional services related to its software service.
The Customer is interested in taking the Supplier's service into use in its business.
The purpose of this Agreement is to set out the terms and conditions under which the Supplier supplies the Control service ("Software Service") and professional services ("Professional Services") to the Customer as agreed in further detail below. The Software Service and the Professional Services hereinafter jointly the "Services".
Software Service
The Software Service is a service that may be used by the Customer to manage and combine the data created by the Customer's IT systems and services so that such data may be used by the Customer in a consistent format. The detailed scope and features of the Software Service are described by request or on the Supplier's web site at https://control.dev/ ("Web Site"). The Web Site also contains the documentation of the Software Service.
The Software Service is used by connecting it to an IT system or service used by the Customer in its business (each such IT system or service a "Target System") via interfaces. The Software Service downloads selected data from the Target Systems and formats the data according to selected parameters. The data may then be combined by the Software Service with data from other Target Systems, and the Customer may use the data contained in the Software Service as input data to the Customer's own monitoring tools.
All data downloaded to the Software Service from the Target Systems as well as otherwise input by the Customer "Customer Data".
Free Trial
The Supplier may offer a free trial period as specified in the registration process, invitation, or on the Web Site. During the free trial:
(a) No Subscription Fees apply unless otherwise stated;
(b) The Supplier may limit features, functionality, or the amount of data that can be processed;
(c) Either party may terminate the trial at any time without liability.
Upon expiry of the free trial, the Customer must either enter into a paid subscription or cease using the Software Service. If the Customer continues using the Software Service after the trial period without entering into a paid subscription, the Supplier may suspend or terminate access until payment terms are agreed.
The Software Service is provided during the free trial period on an "as is" and "as available" basis. The Supplier makes no warranties regarding the Software Service during the free trial period beyond those required by mandatory law.
Professional Services and Deliverables
The scope of the Professional Services, including any deliverable results ("Deliverables") to be provided under the Agreement has been defined in the Order Form, or where no Order Form exists, as separately agreed between the parties in writing. If no Professional Services have been agreed, the Customer receives only the Software Service.
The Parties may, from time to time, agree separately on the provision of Professional Services in writing. All such separately agreed Professional Services are provided subject to the terms and conditions of the Agreement.
The Supplier's obligations related to the Professional Services are limited to the express tasks set out by the Parties. Unless otherwise agreed by the Parties, all completion dates and costs are non-binding estimates, and all services are invoiced on a time and materials basis.
Deficiencies in Deliverables that do not substantially affect their use by the Customer shall not prevent the acceptance of the Deliverables, however, the Supplier shall correct such deficiencies without delay.
All Deliverables shall constitute a part of the Software Service, and the rights and obligations applicable to the Software Service shall apply to the Deliverables as if such Deliverables were an integral and inseparable part of the Software Service.
The Supplier shall perform the Professional Services in a professional and workmanlike manner, using its working methods. Unless otherwise agreed, Professional Services shall be performed at a location chosen by the Supplier.
Target Systems
The Software Service will be connected to the Target Systems defined in the Order Form or, where no Order Form exists, as selected by the Customer through the Software Service interface or as otherwise agreed between the parties.
The Customer shall be responsible for ensuring that the Supplier has the rights and licenses to connect the Software Service to each agreed Target System and to provide the related Professional Services. The Customer shall ensure that the use of the Software Service and the provision of the Professional Services does not infringe the Target System's applicable terms of use. The Customer shall be responsible for all license fees related to the use of the Software Service and the provision of the Professional Services in relation to the Target Systems.
The Customer shall reasonably assist the Supplier in connecting the Software Service to the agreed Target Systems as well as in the provision of the related Professional Services. Such assistance includes without limitation, granting access to the agreed Target Systems and providing adequate user credentials and information to the Supplier, as reasonably required by the Supplier.
The Customer or its third-party supplier shall be responsible for the functioning and availability of the Target Systems.
Customer Data
The Customer may use the Software Service to control what Customer Data is downloaded to the Software Service and what changes are made by the Software Service to the Customer Data.
The Customer may download or request the Customer Data from the Software Service or the Supplier at any time. The Customer may download or request backups of the Customer Data as well as limited sets of the Customer Data, as required by the Customer for its business purposes.
The Customer shall be responsible for ensuring that the Customer Data may be downloaded or input to the Software Service legally and without infringing any existing agreements. Without limitation, this obligation includes ensuring that the applicable personal data regulation is complied with, and that confidentiality obligations, intellectual property rights and trade secrets do not restrict the downloading or other input of Customer Data to the Software Service.
Service Levels
The Supplier shall use its commercially reasonable efforts to make the Software Service available on a 24/7 basis, however, without any warranty as to the availability of the Software Service at any particular time. The Customer agrees and understands that the Software Service is provided strictly on an "as is" and "as available" basis.
The Supplier shall have the right to suspend the provision of the Software Service for a reasonable period of time if this is necessary in order to perform installation, change or maintenance work in respect of the Software Service. The Supplier notifies of such suspensions at the Web Site, or by email, or by any other agreed communication method.
Customers' General Obligations
The Customer shall be responsible for ensuring that the Services are suitable for the Customer's needs.
The Customer shall be responsible for its use of the Software Service and responsible for the use of the Software Service by the users authorized by the Customer. The Customer shall ensure that all users it authorizes to use the Software Service comply with the Agreement at all times and use the Software Service only in accordance with the Agreement.
The Customer and its users may only use their own credentials to use the Software Service. A user must protect their user IDs, passwords, private keys and other credentials against any disclosure to third parties. The Customer must promptly notify any suspected loss, disclosure or unauthorized use of user credentials to the Supplier.
The Customer shall change (and shall ensure that its authorized users change) the passwords required for the use of the Software Service upon request of the Supplier if necessary due to data security risk to the Software Service. The Supplier shall have the right to change any credentials when this is required due to compelling technical reasons, security reasons or to other similar reasons.
The Customer shall be responsible for paying any fees in accordance with the invoices sent by the Supplier.
The Customer shall be responsible for its own devices, systems, applications, connections, and software used to access the Software Service, including their maintenance and security.
Fees
The Supplier's applicable fees are set out in the Order Form or, where no Order Form has been executed, as published on the Web Site, communicated through the registration process, or as otherwise agreed between the parties in writing.
If a relevant fee has not been set, the Supplier's general price list, as in force from time to time, shall be applicable.
All fees are quoted without value added tax (VAT) or any other applicable sales tax, which shall be added to the fees in accordance with the then-applicable tax laws and regulations.
The Supplier shall have the right to increase the fees applicable to the Services once per calendar year. The Supplier shall inform the Customer of such change at least thirty (30) days before the effective date of the change. In such a case the Customer shall have the right to terminate the Agreement to end on the effective date of the change by a written notice to the Supplier.
All fees are invoiced monthly in arrears, unless agreed otherwise. The term of payment shall be fourteen (14) days net from the date of the invoice. Interest on any amounts overdue shall accrue in accordance with the Interest Act (Korkolaki 1982/633, as amended).
Intellectual Property Rights
All rights, title, and interest, including all intellectual property rights in and to the Software Service and the Deliverables, as well as any changes thereto, shall belong exclusively to the Supplier or its third-party licensors. Except for the express license granted to the Customer under the Agreement, the Customer shall have no rights, license, or interests in and to the Software Service, the Deliverables, or any intellectual property rights pertaining thereto.
Subject to the terms and conditions of the Agreement, the Customer shall have a limited non-exclusive, non-transferable, and non-sublicensable right to use the Software Service and the Deliverables during the term of the Agreement for its internal business purposes. For the avoidance of doubt, the Customer shall not have the right to resell the Software Service or the Deliverables, or enter into other arrangements to provide their functionality or output to third parties.
All rights, title, and interest, including all intellectual property rights in and to the Customer Data and any changes thereto shall belong exclusively to the Customer or its third-party licensors.
The Customer grants to the Supplier, for the term of the Agreement, a worldwide, non-exclusive, fully paid up, royalty-free right to use the Customer Data for the sole purpose of providing the Services to the Customer.
The Supplier may not use the Customer Data itself to improve the Software Service, or to train any AI models. The Supplier shall, however, have the right to use anonymized statistical data concerning the Customer's and its users' use of the Software Service to improve the Software Service.
The Customer may, at its sole discretion, provide feedback and development ideas to the Supplier. The Supplier shall have a worldwide, non-exclusive, perpetual, irrevocable fully paid up, royalty-free transferrable and sublicensable right to use such feedback and development ideas without restrictions and without any obligation to provide any kind of compensation to any party.
Infringement of Intellectual Property Rights
The Supplier agrees to defend the Customer, at the Supplier's own expense, against any third-party claims or actions where a third-party claims that the Software Service, when used in accordance with the Agreement, infringe upon Intellectual Property Rights of a third party valid in the European Economic Area (EEA), provided that the Customer:
(a) notifies the Supplier of such claim without delay upon becoming aware of the claim;
(b) provides the Supplier, free of charge, with all available information, permissions and assistance;
(c) grants the Supplier the sole and exclusive right to control the defense of the claim; and
(d) does not agree on any settlement of such claim or action prior to a final judgment thereon by a competent court of law or court of arbitration, without the express prior written consent of the Supplier.
If the Customer has acted in accordance with the above, the Supplier shall pay any damages finally awarded to the third-party claimant by a competent court of law or court of arbitration.
If the Supplier justifiably deems that the Software Service infringes or may infringe upon any third party rights, the Supplier shall have the right, at its own expense and in its sole discretion, to (a) acquire for the Customer the right to continue the use of the Software Service; or (b) replace the Software Service; or (c) modify the Software Service to the extent necessary to avoid the infringement, however so that the replaced or modified Software Service shall substantially conform to what has been set out in the Agreement.
If none of the alternatives above are available to the Supplier on commercially reasonable terms and/or without the significant loss of time, the Supplier shall have the right to terminate the Agreement in whole or in part subject to a notice period set by the Supplier at its sole discretion, upon which the Customer agrees to cease using the Software Service and the Supplier shall reimburse the fees paid by the Customer for the terminated Software Service, less a proportion equal to its time of use by the Customer.
The indemnity obligation in this Section shall not apply to, and the Supplier is not liable for any claim that (a) is based on a claim by any Customer affiliate; or (b) is based on the modification or alteration of the Software Service by the Customer or any third party; or (c) results from complying with any instructions, specifications or design given by the Customer or any third party under the command and control of the Customer; (d) arises or results from the use of the Software Service in combination with any software, equipment or products not developed or supplied by the Supplier or which are contrary to instructions given by the Supplier; or (e) could have been avoided by using the latest version of the Software Service made available by the Supplier to the Customer.
This Section sets out the entire liability of the Supplier and the Customer's sole and exclusive remedy in case of any infringement of any third-party intellectual property rights by the Software Service.
Confidentiality
Definition of Confidential Information
"Confidential Information" means information of any kind and in any form whether or not labelled as "confidential" and which should be reasonably understood to be confidential, including, but not limited to, information concerning a Party's business plans, finances, budgets, products and services, product development, inventions, research results, intellectual property rights, client or partner relationships, and any other information concerning a Party's business, disclosed or furnished by a Party (the "Disclosing Party") to the other Party (the "Receiving Party") in connection with this Agreement.
Exclusions
Confidential Information shall not include information that:
(a) can be proved by written records to have been in the Receiving Party's possession before its disclosure by the Disclosing Party; or
(b) is in or becomes part of the public domain through no fault of the Receiving Party; or
(c) is received by the Receiving Party from a third party without a duty of confidentiality to the Disclosing Party; or
(d) is independently developed by the Receiving Party without use of the Disclosing Party's Confidential Information as evidenced by written records; or
(e) is disclosed by the Receiving Party pursuant to judicial order, a requirement of a governmental agency or by operation of law, provided that the Receiving Party gives the Disclosing Party a written notice of such requirement (if allowed by law) as soon as reasonably possible after learning of such requirement and takes reasonable and lawful actions to limit the extent of the disclosure.
Obligations
The Receiving Party agrees not to use any Confidential Information for any purpose except to carry out its obligations and exercise its rights under this Agreement.
The Receiving Party shall safeguard the Confidential Information using the same degree of care as it uses to safeguard its own confidential and proprietary information, but at least reasonable care.
The Receiving Party agrees not to disclose any Confidential Information except only to its and its Affiliates' employees, officers, consultants or professional advisers to whom it is strictly necessary to disclose it to perform obligations or exercise rights under this Agreement ("Authorised Persons"). Each Authorised Person must be bound by confidentiality terms substantially similar to those in this Agreement. The Receiving Party shall be fully responsible for its Authorised Persons' acts and omissions and for their compliance with the restrictions set forth in this Agreement.
"Affiliate" means a legal entity that, directly or indirectly, controls, is controlled by, or is under common control with a Party; and "control" means the possession, directly or indirectly, by agreement or otherwise, of at least fifty (50) % of the voting stock, partnership interest or other ownership interest.
No Warranty on Confidential Information
The Disclosing Party provides the Confidential Information "as is" and no warranty is given by the Disclosing Party as to the quality or accuracy of any Confidential Information.
Return of Confidential Information
All Confidential Information furnished by the Disclosing Party shall remain the property of the Disclosing Party and shall be returned promptly at the Disclosing Party's request, together with any copies thereof. The provisions for return or destruction shall not apply to copies of electronically communicated Confidential Information made as a matter of routine information technology back-up, and to Confidential Information or copies thereof that must be stored by the Receiving Party according to provisions of mandatory law, provided that such Confidential Information or copies thereof shall be subject to continuing obligations of confidentiality under this Agreement.
No Rights Transfer
The Receiving Party shall not by virtue of this Agreement obtain any rights including, but not limited to, intellectual property rights to any material, Confidential Information or other information received pursuant to this Agreement, other than the limited rights expressly provided herein.
Remedies
The Parties acknowledge that their Confidential Information constitutes their vital business assets and agree that mere damages may be insufficient to compensate a breach of this Section. The Parties recognise that any such breach may thus result also in the injured Party seeking alternative remedies including, but not limited to, injunctive relief to restrain any threatened or continued breach of this Agreement.
Duration
The rights and obligations related to the Confidential Information shall survive the termination or cancellation of the Agreement for a period of five (5) years from such termination or cancellation.
Notwithstanding the above, the obligations shall in relation to trade secrets survive for the life of any statutory trade secret protection in case such protection provides for a longer obligation of non-disclosure.
Data Protection
The Supplier acts as a data processor for the Customer as regards personal data collected by the Customer as a data controller. All such processing of personal data by the Supplier is subject to Appendix 1 (Data Processing Agreement).
For clarity, the Supplier also collects personal data as a data controller in accordance with its own privacy policies, which are available at the Web Site or upon request.
Data Security
Each Party shall be responsible for its own data security in accordance with its security procedures, and shall ensure that its premises, equipment, and operating environment are protected against data security threats in accordance with adequate data security procedures and shall ensure that measures relating to data security and back-ups are complied with.
Unless expressly agreed to the contrary, the responsibility for taking any back-up copies of the Customer Data and other material shall be with the Customer. Should the Parties agree that the Supplier will make back-up copies of the Customer's data and other material, the liability of the Supplier for any loss of such data shall be limited to the return of such data from the most current available back-ups.
Limitation of Liability
The total aggregate liability of a Party towards the other Party under the Agreement shall not exceed per calendar year an amount corresponding to the fees (excluding value added tax) paid by the Customer to the Supplier under the Agreement during that calendar year.
A Party shall not be liable for any indirect, incidental, or consequential damages such as loss of profits, revenue or business, damages caused due to decrease in turnover or production or loss, alteration, destruction, or corruption of data.
All Customer Data is downloaded, provided, modified and generated on an "as-is" basis. The Customer Data is sourced from the Customer (and not the Supplier) and any changes to such Customer Data are done at the instructions of the Customer. The Supplier assumes no liability for the accuracy, authenticity, quality, correctness, or completeness of any Customer Data.
The limitations of liability shall not apply to damages caused by willful misconduct or gross negligence or to liability under Section 12 (Infringement of Intellectual Property Rights) or Section 13 (Confidentiality).
Other Terms
The Supplier shall be free to use subcontractors in the performance of its obligations under the Agreement. The Supplier shall be liable for the acts and omissions of its subcontractors under the Agreement as for its own.
Neither Party shall be liable for any delays or non-performance of its obligations, or any damages caused by an impediment beyond its reasonable control, which it could not have reasonably taken into account at the time of entering into the Agreement, and whose consequences it could not reasonably have avoided or overcome. For instance, errors in public communication networks or electricity supply or impediments to the performance of the Agreement due to export or import restrictions or sanctions shall constitute such an impediment. Strike, lockout, boycott, and other industrial action shall constitute a force majeure event also when the Party concerned is the target or Party to such action. A force majeure event suffered by a subcontractor of Party shall also discharge such Party from liability, if the work to be performed under subcontracting cannot be done or acquired from another source without incurring unreasonable costs or significant loss of time. Each Party shall without delay inform the other party in writing of a force majeure event and the termination of the force majeure event.
All amendments to the Agreement shall be made in writing and shall be confirmed by both Parties' signatures or, where applicable, through acceptance of updated terms via the Software Service.
Neither Party shall be entitled to assign nor transfer its rights, benefits, and obligations under the Agreement without the prior written consent of the other Party, which consent shall not be unreasonably withheld or delayed. The Supplier shall, however, have the right to assign the Agreement to its group company.
Any terms and conditions, that by their nature or otherwise reasonably should survive the termination of the Agreement for any reason, shall be deemed to so survive.
Appendices
The following appendices form an integral and inseparable part of the Agreement:
(a) Order Form (where applicable)
(b) Appendix 1 – Data Processing Agreement
In case of discrepancy between this agreement document and its appendices, the terms and conditions of the Order Form document shall prevail (where applicable). In case of discrepancy between the appendices, the appendices shall be applied in the order set out above so that an appendix with a smaller number shall prevail over an appendix with a larger number.
In case no Order Form has been executed, references to the Order Form shall mean the registration information and selections made by the Customer when accepting these terms.
Term and Termination
The Agreement shall be effective upon (a) signature by both Parties on an Order Form; or (b) the Customer's acceptance of these terms through registration, access to, or use of the Software Service. The Agreement shall remain in force until terminated by a Party.
The Customer shall have the right to terminate the Agreement for convenience by a one (1) month's written notice to the Supplier. The Supplier shall have the right to terminate the Agreement for convenience by a three (3) months' written notice to the Customer.
A Party may terminate the Agreement for cause with immediate effect upon written notice to the other Party if:
(a) the other Party becomes insolvent, applies for or is adjudicated in bankruptcy or liquidation or corporate restructuring or otherwise ceases to carry on its business; or
(b) the other Party is in material breach of the terms and conditions of the Agreement and fails to remedy such breach (if the breach is of such a nature that it can be remedied) within thirty (30) days from the date of receipt of a written notice by the non-defaulting Party, such written notice detailing the breach and the intention to terminate.
Upon the termination of the Agreement, the Customer's license to use the Services shall terminate with immediate effect. The Supplier shall make all Customer Data in its possession at the time of termination available to the Customer for a period of thirty (30) days after the effective date of termination of the Agreement, after which the Supplier shall have the right and the obligation to delete all such Customer Data.
Governing Law and Disputes
The Agreement shall be governed by and construed in accordance with the substantive laws of Finland, excluding its choice of law provisions.
Any dispute, controversy or claim arising out of or relating to the Agreement, or the breach, termination, or validity thereof, shall be finally settled by arbitration in accordance with the Arbitration Rules of the Finland Chamber of Commerce. The number of arbitrators shall be one (1). The seat of arbitration shall be Helsinki, Finland. The language of the arbitration shall be English.
Notwithstanding anything set out above, the Supplier shall have the right to claim unpaid fees in a public court.
Acceptance and Incorporation
This Service Agreement is incorporated by reference into any Order Form. By signing an Order Form or by registering for, accessing, or using the Software Service, the Customer acknowledges that they have read, understood, and agreed to be bound by all terms and conditions contained in this Service Agreement.
No separate signature is required on this Service Agreement where the Customer accepts these terms through registration or use of the Software Service.