Terms of Service.
These Terms of Service (this “Agreement”) are entered into by Verve Group Europe GmbH, Karl-Liebknecht-Str. 32, 10178 Berlin, Germany (“Beemray”) and apply to services provided by Beemray. Please read this Agreement carefully before using the services offered by Beemray.
THIS IS THE MASTER AGREEMENT THAT GOVERNS CLIENT'S USE OF THE BEEMRAY SERVICES. BY USING THE BEEMRAY SERVICES, CUSTOMER AGREES TO COMPLY WITH THESE TERMS OF USE.
In consideration of the foregoing, the Parties agree as follows:
1. Definitions
“3rd Party” means any natural person, company or other person that is neither Beemray nor Client. Affiliates are considered as 3rd Parties.
“Account” refers to the billing account for the Service associated to the Client.
“Affiliates” means, with respect to any person, any other person that, directly or indirectly through one or more intermediaries or otherwise, controls, is controlled by or is under common control with the person first specified (where “control” means the direct or indirect ownership of more than fifty percent (50%) of the voting ownership interests of a person.
“Aggregated Data” means any non-personally identifiable information derived from the Results and other information created by the usage of the Service and that is no Confidential Information of Client or information related to the Client, 3rd Party or an individual End User. Aggregated data are for instance counts, trends, statistical data, heat maps, graphs, derivate information.
“Applicable Law” means Finnish law and the European General Data Protection Regulation 2016/679 (“GDPR”), EU Directive 95/46/EC and the future European ePrivacy Regulation.
“Beemray Property” means Property provided or made accessible by Beemray under this Agreement including without limitation the Service, Documentation, Report Templates, Aggregate Data, Client Library, Intellectual Property of Beemray and Property that was or is acquired, created, developed or licensed by Beemray prior to or outside the scope of this Agreement.
“Beemray Systems” means all Servers, devices, storage, software, databases, network, communications equipment, ancillary services and any other connected means controlled by Beemray or its Affiliates, which are mandatory to provide the Service to Client.
“Client" means the company that enters into this Agreement.
“Client Data” means all information, data and other content provided by Client in connection with its authorized use of the Service, including, without limitation, data and information transmitted to the Service via the Client Libraries.
“Client Libraries” means the libraries provided by Beemray via the Service and installed within Client’s application(s) for the purpose of collecting Client Data and sending such Client Data to the Servers.
“Client Property” means Results, Client Data and Intellectual Property of Client as well as Client’s service or product offered to End Users and Property that was or is acquired, created, developed or licensed by Client prior to or outside the scope of this Agreement.
“Client Systems” means all servers, devices, storage, software (other than the Client Libraries), databases, network, communications equipment, ancillary services and any other connected means needed to connect to, access or otherwise use the Service at Client’s facility including facilities of Client’s Affiliates or 3rd Parties used by Client.
“Confidential Information“ means information as defined in Section 13.
“Data Event” means a defined event that is tracked via the Service.
“Documentation” means any accompanying documentation about the Service made available by Beemray including any documentation available online via the Sites.
“Effective Date” means the day defined in the Service Form or Statement of Work on which the respective agreement shall come into effect.
“End Users” means natural persons who use Client’s online service or product, e.g. website, app.
“Intellectual Property” means all present and future worldwide unregistered design rights, registered designs, copyrights, trademarks, trade secrets, marks and patents, together with any applications for any registrable items of any of these.
“Service Form” means an service form referencing this Agreement that has been mutually agreed to and executed by the parties.
“Privacy Policy” means information about data processing and privacy protection and security measures as defined in Art. 13 and 14 GDPR.
“License Fee” means the fee for using the Service, that is determined in the Service Form and that Client must pay to Beemray.
“Party” means either Beemray or Client, together “Parties”.
“Professional Services” means consulting services, implementation services, configuration services, technical support services, and/or other services identified in the Statement of Work, and relating to the Service and ordered by Client.
“Professional Service Fee” means the fee for Professional Service, that is defined in the Statement of Work and that Client must pay Beemray.
“Property” means all information, data, ideas, concepts, inventions, systems, platforms, software, interfaces, tools, utilities, templates, forms, techniques, methods, processes, algorithms, know-how, trade secrets and other technologies and any improvement, modification, extension or other derivative works thereof and all Intellectual Property thereto.
“Personal Data” has the meaning set out in Art. 2 (a) of the EU Directive 95/46/EC or the respective applicable subsequent regulation, in particular Art. 4(1) Regulation 2016/679.
“Results” means any information related to Client and generated or learned through Client’s use of the Service to the extent based on Client Data.
“Service” means Beemray’s analytics, segment building and marketing services as provided and/or hosted by or on behalf of Beemray and provided to Client under this Agreement, as identified and defined in an Service Form and updated from time to time by Beemray in its sole discretion.
“Service Fee” means the fee for a Service , that is defined in the Service Form and is neither a license nor a Professional Service, and that Client must pay Beemray.
“Servers” means servers that are used and controlled by Beemray, its Affiliates, or a 3rd Party commissioned by Beemray.
“Sites” means websites operated by Beemray that are made accessible to Client under this Agreement.
“Statement of Work” means terms and conditions of any agreement by and between Beemray and Client concerning Professional Service and that explicitly refer to this Agreement.
“Term” means the duration of this Agreement or the Statement of Work.
“Territory” means the geographic area that is defined in the Service Form.
The words “include” and “including” mean “including but not limited to.”
2. Subject-matter
If Beemray refers to this Agreement, Beemray agrees to make the Service identified in this Agreement and the respective Service Form available to Client under the terms of this Agreement, and Client accepts the Agreement.
Unless agreed to between the Parties in writing any additional service not explicitly described in the Service Form is deemed to be Professional Service and shall be subject of a Statement of Work with a reference to this Agreement.
3. Service
Each Service Form entered into pursuant to this Agreement shall specify the Service to be provided and any other related topic like License Fee, Term, invoicing terms and any other terms mutually agreed to by the Parties.
The Service is made available to Client as a service, solely online and via API and as hosted by or on behalf of Beemray, and nothing in this Agreement shall be construed to grant Client any right to receive any copy of the Service, Beemray Property or any software (other than the Client Libraries). Therefor Beemray grants Client a license as defined in Section 4.
Client has the right to order additional optional Services that include a license via the Service Form or, with reference to the signed Service Form, via written request (email is sufficient).
Other Services that are not provided as software as a service are optional and provided remotely or, if agreed upon, in the Client’s premises. An hour means 60 minutes, a day means 8 hours. Related travel costs and expenses of Beemray shall be borne by Client. These additional optional Services may be ordered by Client via the Service Form or, with reference to the signed Service Form, via written request (email is sufficient).
4. Service License
Providing the Service Beemray shall grant Client a nonexclusive, nontransferable right and license (without any right to sublicense) during the Term, to (a) access and use the Service as described in an Service Form, solely for Client’s internal business purposes and (b) download, install and use the Client Libraries in order to use the Service with the Client Account.
To the extent that Beemray includes any Beemray Property in the Results, then subject to all terms and conditions of this Agreement, Beemray agrees to grant Client (without the right to sublicense) a nonexclusive, nontransferable, royalty-free right and license to use such Beemray Property as combined with or embodied in the applicable Results, solely for Client’s internal business purposes in connection with its use of the Results and Service limited to the Term of this Agreement and the Territory.
Client shall not directly or indirectly: (i) use the Service or any of Beemray Property, Beemray System or any other Confidential Information to create any service, software or documentation that performs substantially the same functionality as the Service, (ii) disassemble, decompile, reverse engineer or use any other means to attempt to discover any source code, algorithms or trade secrets underlying the Service (except and only to the extent these restrictions are expressly prohibited by applicable statutory law), (iii) encumber, sublicense, transfer, distribute, rent, lease, time-share or use any Beemray Property or Service in any service bureau arrangement or otherwise, (iv) adapt, combine, create derivative works of or otherwise modify any Beemray Property or Beemray Service, or (v) use or allow the transmission, transfer or export any software, technology or information it obtains or learns pursuant to this Agreement in violation of any export control or any other relevant jurisdiction.
Except for the limited rights and licenses expressly granted hereunder, no other license is granted, no other use is permitted to Client and Beemray (and its licensors) shall retain all right, title and interest (including all Intellectual Property and proprietary rights embodied therein) in and to the Service, Beemray Systems and Beemray Property.
5. Service Access
Client’s access to and use of the Service shall comply with all other conditions set forth in this Agreement, the Service Form and Documentation (such as, for example, any requirements regarding data formats, number of permitted users or prohibited uses).
Client shall not give 3rd Parties access to the Service unless explicitly agreed by Beemray in the Service Form. In any case Client shall be responsible for the acts or omissions of any person who accesses the Service using passwords or access procedures provided to or created by Client.
Beemray reserves the right to refuse registration of, or to cancel, login IDs that violate the terms and conditions set forth in this Agreement. Client agrees to notify Beemray immediately upon learning of any unauthorized use of the Client Account or any other breach of security. From time to time, Beemray personnel may log in to the Service under Client’s account in order to maintain or improve the Service, including providing Client assistance with technical issues. Client hereby acknowledges and consents to such access.
6. Service Availability and Support
Beemray shall make the Service available to Client as described in this Agreement and the Service Form. The Service, when used in accordance with the Documentation, will materially conform to the Service’s functional specifications.
Beemray will use commercially reasonable efforts to maintain the Service availability to send and receive data, subject to downtimes resulting from maintenance, repairs and upgrades. Beemray will attempt to notify Client electronically via the Service in advance of any planned downtime.
Notwithstanding the foregoing, Beemray will not be liable for any failures in the Service or any other problems which are related to (a) the Client Data, Client Systems or Client Property, or (b) outages to any telecommunications or public Internet backbones, networks or servers, or other equipment or service in particular if the failure occurred outside of Beemray System, Beemray Property or other means not controlled by Beemray.
Beemray will provide Client with telephone and email support for Client’s use of the Service during Beemray’ regular business hours unless otherwise explicitly defined in the Service Form, i.e. from Monday until Friday, each day 9am – 5pm EEST/EET, except of Finnish public holidays.
Client agrees that Beemray is only responsible to provide support for the Service but not for other issues in particular resulting from problems, errors or inquiries related to Client Systems or Property, or 3rd Party Property, systems and services.
7. Client Feedback
Client may, from time to time and in its sole discretion, make suggestions for changes, modifications or improvements to the Service (“Feedback”). All Feedback shall be solely owned by Beemray (including all intellectual property rights therein and thereto) and shall also be Beemray Confidential Information. Client shall and hereby does make all assignments necessary to achieve such ownership.
8. Client Data and Property
Client agrees that the Service depends on the availability of Client Data. Therefore, during the Term of this Agreement and in the Territory Client grants Beemray a nonexclusive, royalty-free right and license to access, use, copy, store and otherwise process Client Data for the purpose of providing the Service. Client shall own all right, title and interest (including all Intellectual Property and other proprietary rights) in and to Client Property and Client Systems.
Client will be solely responsible for all Client Data collected from end users as a result of Client’s use of the Service including the accuracy and completeness of such information. In particular, Client guarantees that Client Data is free of 3rd Party rights.
Except for the limited rights and licenses expressly granted to Beemray hereunder, no other license is granted, no other use is permitted and Client shall retain all right, title and interest (including all intellectual property and proprietary rights embodied therein) in and to Client Property and Client Systems.
9. Aggregated Data
Beemray aggregates data to improve Service functionalities and quality, alongside offer the potential of new revenue streams/partners.
For the aggregation Client agrees that Beemray is free to (i) collect, use and create derivative works of data regarding Service usage and performance derived from the Results; (ii) aggregate such data with other data to create compilations and analysis of such data; and (iii) use, copy, modify, create derivative works of, publish and disclose such Aggregated Data in a manner that does not directly or indirectly identify Client or any individual person.
Beemray shall own all right, title and interest to the Aggregated Data and any derivative works thereof not limited to the Term or Territory. In addition, Beemray shall be free to reuse all general knowledge, experience, know-how, works and technologies (including ideas, concepts, processes and techniques) related to the Results or acquired during provision of the Service (including without limitation, that which it could have acquired performing the same or similar services for another Client).
10. Client Obligations
Client is responsible for (i) all equipment, subscriptions and credentials necessary for Beemray to receive the Client Data and (ii) running, monitoring and maintaining Client’s Systems and Client’s Property and (iii) Client shall ensure that all relevant Client Systems are compatible with the Service and comply with all configurations and specifications described in the Documentation.
Client shall not directly or indirectly: (i) exceed the number of monthly Data Events agreed in the Service Form, or a fee of additional Data Events will be applied; (ii) use unique values or a continuous set of values as inputs to event attributes, (iii) interfere or attempt to interfere with the proper working of the Service or any activities conducted on the Service; (iv) bypass any privacy settings or measures Beemray may use to prevent or restrict access to the Service (or other accounts, computer systems or networks connected to the Service); or (vi) use manual or automated software, devices, or other processes to “crawl” or “spider” any page of the Sites.
11. Professional Services
Any service that is not subject of an executed Service Form will be deemed to be Professional Work and may be requested by Client and agreed to by Beemray in a written Statement of Work that shall specify the Professional Service to be provided and any other related topic like Service Fee, Term, invoicing terms and any other terms mutually agreed to by the Parties. The Statement of Work shall be governed by the terms of this Agreement subject to explicit additional agreements in the Statement of Work.
Unless otherwise explicitly agreed to by the Parties and set forth in the applicable Statement of Work, all Intellectual Property, and all rights embodied therein, that are created by Beemray during the performance of Professional Services shall be owned solely and exclusively by Beemray.
12. Payments
Client shall pay fees in the amount and pursuant to the invoicing schedule set forth in the Service Form and Statement of Work.
Unless otherwise set forth in the Service Form, Beemray shall invoice the License Fee for each month monthly in arrears. Beemray shall invoice Service Fees for the previous month monthly.
Unless otherwise set forth in the Statement of Work, Beemray shall invoice the Professional Service Fee for the previous month monthly.
If no specific date or payment term is indicated on an Service Form or Statement of Work, the due date will be thirty (30) days from the date of the invoice. Past due amounts which are not subject to a good faith dispute shall bear a late payment charge, until paid, at the rate of eight percentage points above the basic rate of interest.
Payments shall be made in Euros (€), GBP (£) or US dollars ($) to an account specified by Beemray, in full without set-off, counterclaim or deduction by the due date as indicated on the applicable Service Form and Statement of Work.
Charges are exclusive of taxes. Customer will pay all VAT taxes and other government charges (except for taxes on Beemray’s income), and will pay reasonable expenses and outside attorneys’ fees Beemray incurs in collecting late payments that are not disputed in good faith, in writing, during the applicable payment period.
In addition to its other rights and remedies, Beemray may, at its sole discretion and option, suspend Client’s access to the Service or terminate this Agreement in the event that Client is in delay of any payment owed to Beemray.
13. Revenue Share Reports
Client will provide to Beemray a written report, in the form and format as mutually agreed by the Parties, specifying the following information. Client will provide such reports to Beemray on the 10th day of each calendar month (i.e., license fee report for March is due on April 10th). Beemray will invoice Client based on such reports within thirty (30) days of receipt of such report. Client will pay to Beemray the amounts specified on such invoice within thirty (30) days of the date of invoice provided by Beemray.
The monthly license fee reports will include the following information, per Territory and any other information as reasonably requested by Beemray:
Net Revenue in the prior calendar month that include any additional breakdown / info as appropriate and discussed in negotiation, if any; and
Calculation of fees owed to Beemray as specified in the Service Form.
14. Confidentiality
Both Parties acknowledge and agree that either Party (the “Disclosing Party”) may disclose certain confidential, proprietary, trade secret or other sensitive information (the “Confidential Information”) to the other Party (the “Receiving Party”). Confidential Information includes, without limitation, this Agreement, the Service, Intellectual Property, technical, marketing and financial information or business plans and any information that would reasonably be understood to be confidential even if not so marked. All Client Property is the Confidential Information of Client, all Beemray Property is the Confidential Information of Beemray.
The Receiving Party agrees that it will not, without the express prior written consent of the Disclosing Party, use or disclose any Confidential Information to any 3rd Party, except to the extent that such Confidential Information: (a) is or becomes generally available to the public through no fault of the Receiving Party; (b) is rightfully received by the Receiving Party from a 3rd Party without limitation as to its use; or (c) is independently developed by the Receiving Party, without use of the Disclosing Party’s Confidential Information.
The Receiving Party will take all care to protect the Disclosing Party’s Confidential Information as it takes to protect its own Confidential Information, but in no case less than reasonable care. The Receiving Party will ensure that its employees and contractors are bound in writing to comply with these or substantially similar confidentiality requirements. If the Receiving Party becomes aware of any unauthorized use or disclosure of Confidential Information of the Disclosing Party, the Receiving Party will notify the Disclosing Party immediately and will give full cooperation to minimize the effects of such unauthorized use or disclosure.
In no event shall the Receiving Party or any party acting under the Receiving Party’s control or direction, develop or acquire products or services that use the disclosing party’s Confidential Information, or to use for any purpose any Residuals. “Residuals” means information, which may be retained in the minds of persons having access to the Confidential Information (including ideas, concepts, know-how or techniques contained therein) in the normal course of their access to the Confidential Information pursuant to this Agreement.
The Receiving Party agrees to: (a) not to use any Confidential Information for any purpose other than the performance of this Agreement; (b) delete, destroy and/or return all Confidential Information to the Disclosing Party upon demand or termination of this Agreement, and (c) provide the Disclosing Party with prompt notice if any Confidential Information become subject to disclosure by legal process.
15. Data Privacy
Beemray takes appropriate technical and organizational measures to ensure data privacy and data security and provides Client with relevant information especially about data processing concerning the Service to proof compliance with applicable laws. Additionally, Beemray may at its sole discretion provide its privacy assessment concerning the Service without giving any legal advice. Client remains solely responsible for its own legal assessment though.
Client acknowledges that he is responsible to assess, if he must obtain End-User’s consent regarding location detection. In this event, Client must provide detailed information to their End-Users especially about Client’s purposes of the collected location data regardless where the Service is implemented. If a Client intends to combine data derived from the Service Client must take additional care if this data usage is lawful.
The Parties acknowledge that no Personal Data is subject of data transfer to or processing by Beemray to provide the Service or Professional Services is no Personal Data. Moreover, Client shall not provide any Personal Data relating to an End User or another natural person to Beemray while using the Service.
If and to the extent the Parties explicitly agree in writing that Personal Data shall be subject of the Service or Professional Service (1) Client either guarantees that he is allowed to transfer data to Beemray, if necessary, obtain End User’s consent, or (2) the Parties explicitly agree on a Data Processing Agreement as set forth in Article 16 and 17 (3) EU Directive 95/46/EC and Article 28 GDPR. In either case Client warrants and guarantees that Client provides information to End Users, and comply with all laws applicable to Client’s processing of Personal Data.
If the Parties agree explicitly in writing on a Data Processing Agreement (1) Beemray acknowledges that it acts as Data Processor as defined in Article 2 (e) EU Directive 95/46/EC and Art. 4 (8) GDPR in respect of any Personal Data processed by it in connection with the Service and Professional Service, and (2) Client acknowledges that it acts as Controller as defined in Article 2 (d) EU Directive 95/46/EC and Art. 4 (7) GDPR. Details are subject of the Data Processing Agreement that shall refer to this Agreement.
16. Indemnification
16.1 Beemray Indemnity
Beemray agrees to (a) defend Client against any allegation demand, claim, action, proceeding or suit (each, a “Claim”) by a third party that Client’s authorized use of the Service infringes any patent or copyright or misappropriates any trade secret of such third party and (b) indemnify Client for settlement amounts or damages, liabilities, costs and expenses (including reasonable attorneys’ fees, “Loss(es)”) awarded to such third party by a court of competent jurisdiction or agreed to as part of a monetary settlement arising out of such Claim; provided, that (i) Client promptly provides Beemray with written notice thereof and reasonable cooperation, information, and assistance in connection therewith, and (ii) Beemray shall have sole control and authority to defend, settle or compromise such Claim.
If the Service becomes or, in Beemray’s opinion, is likely to become, the subject of any injunction preventing its use as contemplated herein, Beemray may, at its option (1) obtain for Client the right to continue using the Service or (2) replace or modify the Service so that it becomes non-infringing without substantially compromising its principal functions. If (1) and (2) are not reasonably available to Beemray, then it may terminate this Agreement upon written notice to Client and refund to Client any unused prepaid Service Fees, prorated for the remainder of the prepaid period.
Beemray shall have no liability or obligation to Client hereunder with respect to any Claim or Loss to the extent based upon (a) any unauthorized use of the Service, (b) any modification or combination of the Service with data, software, hardware, or systems not provided by Beemray, (c) any portion of the Service that implements Client’s specific requirements, (d) Client’s continuing allegedly infringing activity after being notified to cease use as provided for herein or (e) Client’s continuing use of any version of the Beemray Properties after being provided modifications that would have avoided the alleged infringement.
The foregoing states the sole and exclusive liability of Beemray, and Client’s sole and exclusive remedy, with respect to any actual or alleged violation of intellectual property rights by the Service or any part thereof or by its use or operation.
16.2 Client Indemnity
Client agrees to (i) defend Beemray against any Claim by a 3rd Party that results from or arises out of (a) any breach by Client of any of its obligations in Section 14 (Data Privacy) hereof, (b) any breach by Client of its representations and warranties set forth in Section 8 (Client Data and Property) and 17.1 (Client Data) hereof, or (c) any violation of any 3rd Party’s or End Users’ rights arising out of Client’s use of the Service; and (ii) indemnify Beemray for any Losses awarded by a court of competent jurisdiction or agreed to as part of a monetary settlement and arising out of such Claim; provided, that (i) Beemray promptly provides Client with written notice thereof and reasonable cooperation, information, and assistance in connection therewith, and (ii) Client shall have sole control and authority to defend, settle or compromise such Claim.
17. Preliminary Injunction
Each Party acknowledges any unauthorized disclosure or use of Confidential Information, or an infringement of Intellectual Property Rights will cause irreparable harm and loss to the aggrieved Party. In the event of any actual or threatened breach of Section 2 (Service License) or 13 (Confidentiality) by a Party, the non-breaching Party shall be entitled to seek preliminary injunction or other emergency interim relief prohibiting further breach, which action shall not restrict or limit any other remedies legal or equitable that the Party determines to seek.
18. WARRANTIES AND DISCLAIMERS
18.1 Client Data
Client represents and warrants that it owns all right, title and interest, or possesses sufficient license rights, in and to the Client Data and Personal Data as may be necessary to permit the use contemplated under this Agreement.
18.2 Service
Beemray represents and warrants to Client that the Service will be provided in a professional manner in accordance with the terms of this Agreement and the Documentation. Any warranty claim under this Section 17.2 must be made in writing within thirty (30) days after performance of the portion of the Services giving rise to the claim.
Should Client notify Beemray, within thirty (30) days following the commencement of the license for any element of the Service, that such element does not conform to the Documentation, then as Beemray’s will, at its option, either (i) modify such element, (ii) provide a workaround for the nonconformity, (iii) replace the non-conforming element with a substitute that performs in accordance with the Documentation, or (iv) refund the amounts paid by Client for the affected element of the Service.
18.3 Disclaimers
EXCEPT AS SPECIFICALLY PROVIDED FOR IN THIS SECTION 17, TO THE FULLEST EXTENT PERMITTED BY LAW, EACH PARTY HEREBY DISCLAIMS (FOR ITSELF, ITS AFFILIATES AND THEIR SUPPLIERS) ALL REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE AND ALL WARRANTIES ARISING FROM ANY COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. WITHOUT LIMITING THE FOREGOING, BEEMRAY MAKES NO WARRANTY THAT THE SERVICE WILL MEET CLIENT’S REQUIREMENTS OR BE UNINTERRUPTED, ERROR-FREE OR BUG-FREE.
19. LIMITATION OF LIABILITY
TO THE EXTENT PERMITTED BY APPLICABLE LAW, BEEMRAY SHALL HAVE NO LIABILITY HEREUNDER FOR CONSEQUENTIAL, EXEMPLARY, SPECIAL, INDIRECT, INCIDENTAL OR PUNITIVE DAMAGES EVEN IF IT OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. MOREOVER, UNLESS EXPRESSLY SET FORTH HEREIN, BEEMRAY SHALL HAVE NO LIABILITY WHATSOEVER FOR LOSS OF CLIENT DATA OR INTERRUPTION OF THE SERVICES FOR ANY REASON, INCLUDING POWER OUTAGE, LACK OF NETWORK ACCESS, RIOT, INSURRECTION, EXPLOSION, MALICIOUS MISCHIEF, LIGHTNING, EARTHQUAKE, EXTREME WEATHER CONDITIONS, OR THE ACTIONS OF ANY THIRD PARTY. BEEMRAY’S AND ITS AFFILIATES’ TOTAL CUMULATIVE LIABILITY TO YOU OR ANY OTHER PARTY FOR ANY LOSS OR DAMAGES RESULTING FROM CLAIMS, DEMANDS, OR ACTIONS ARISING OUT OF OR RELATING TO THIS AGREEMENT WILL NOT EXCEED 500€ (EUR).
20. Term and Termination
20.1 Term of Agreement
This Agreement shall commence on the Effective Date and continue in effect thereafter until the later of (i) expiration of the Service Form, or (ii) if there are more existing Service Forms in effect, upon the expiration of the last to expire of such existing Service Forms.
The first Term (the “Initial Term”) and the automatic additional Terms (“Renewal Term”) are set forth in the Service Form. An Initial Term is followed by one or more Renewal Terms, unless either Party terminates the Agreement at least ninety (90) days prior to the end of the then current Term. Any termination must be in writing (email is sufficient).
20.2 Term of Professional Services
The Term for Professional Services shall be defined in the Statement of Work (the “Initial Term”). Thereafter, the Term will be extended automatically for an undefined period until either Party terminates the Statement of Work with a thirty (30) days written notice.
20.3 Termination for Good Cause
The Agreement including an Service Form or Statement of Work may be earlier terminated by either party (a) if the other Party materially breaches a material term of this Agreement, Service Form or Statement of Work and fails to cure such breach within thirty (30) days after receiving written notice of such breach from the other Party, or (b) immediately upon written notice, if the other Party makes any assignment for the benefit of creditors, or a receiver, trustee in bankruptcy or similar officer is appointed to take charge of any or all of the other Party’s property, or the other party seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding or such a proceeding is instituted against the other Party and is not dismissed within ninety (90) days, or the other party becomes insolvent or, without a successor, dissolves, liquidates or otherwise fails to operate in the ordinary course.
20.4 Effects of Termination
Upon any expiration or termination of this Agreement, the Service Form or Statement of Work, all rights, obligations and licenses of the parties shall cease, except (a) obligations that accrued prior to the effective date of termination (including without limitation, all payment obligations) and (b) those terms that by their nature are intended to continue indefinitely, including but not limited all remedies for breach of the Agreement, confidentiality, proprietary rights provisions, warranties and disclaimers, indemnification, limitation of liability, and general provisions. Beemray has no obligation to retain any Client Data or Results after the Term and will destroy all Client Data and Results in its possession within ninety (90) days after the end of the Term.
21. General Provisions
21.1 Modifications to Terms of Service and Other Policies
Beemray reserves the right to change or modify any of the terms and conditions contained in this Agreement, the Service or any policy governing the Service at any time by posting the new agreement to the Site. Beemray will use reasonable efforts to notify Client of the changes, which may include posting an announcement on the Site, informing Client through its account, in-product notices or via email. The Client’s continued use of the Service following our posting or notice of the change(s) will constitute Client’s acceptance of such change(s). Any other amendment of the Agreement must be in writing and signed by both Parties.
21.2 Assignment and Transfer
Beemray shall be entitled to assign and transfer all or any of its rights, benefits and obligations under this Agreement without a prior written consent of Client. Client shall be entitled to assign and transfer all or any of its rights, benefits and obligations under this Agreement with a prior written consent of Beemray.
21.3 Marketing
Client authorises Beemray to use Client’s name and logo to identify Client as Beemray’s client and user of the Service on the Site, and as a part of a general list of Beemray’s clients for use and reference in Beemray’s corporate, promotional and marketing literature. Additionally, Client agrees that Beemray may issue a press release identifying Client as a Beemray client and describing Client intended utilization and the benefits Client expect to receive from use of the Service.
Client agrees and consents that Beemray may inform Client about changes of the Service, new features related to the Service or new products and services of Beemray via contact details provided to Beemray in the course of the business, especially via mail and phone. Client may withdraw the consent at any time for the future.
21.4 Force Majeure
Beemray will be excused from any failure or delay caused by or the result of causes beyond its reasonable control and could not have been avoided or corrected through the exercise of reasonable diligence, including, but not limited to, acts of God, fire, flood, hurricane or other natural catastrophe, terrorist actions, laws, orders, regulations, directions or actions of governmental authorities having jurisdiction over the subject matter hereof, or any civil or military authority, national emergency, insurrection, riot or war, general failure of telecommunication or digital transmission links, general failure of the Internet, failure of non-unified architecture applications, failure of any 3rd Party operating systems, platforms, applications or networks not under reasonable control of Beemray, or other similar occurrence.
21.5 Applicable Law and Venue
Any notice given by one Party to the other shall be deemed properly given if specifically acknowledged by the receiving Party in writing (email is sufficient) or when delivered to the receiving Party by hand, registered mail or courier during normal business hours.
This Agreement and any non-contractual obligations arising out of or in connection with it, shall be governed by substantive Finnish law.
Any dispute, controversy or claim arising out of or in connection with the Agreement or any non-contractual obligation arising out of or in connection with the Agreement shall be finally settled by arbitration administered by the Arbitration Institute of the Helsinki Chamber of Commerce. The place of arbitration shall be the capital of the country where the Service is provided to Client.
The language used in the proceeding shall be English, unless the Parties agree otherwise. The Rules for Expedited Arbitrations shall apply where the amount in dispute does not exceed EUR 100,000. Where the amount in dispute exceeds EUR 100,000 the Arbitration Rules shall apply. The Arbitral Tribunal shall be composed of a sole arbitrator where the amount in dispute exceeds EUR 100,000 but not EUR 1,000,000. Where the amount in dispute exceeds EUR 1,000,000, the Arbitral Tribunal shall be composed of three arbitrators.
Effective: Jan 5, 2022