Terms of Service
Last updated: March 1, 2021
These Terms of Service (“Terms”) are applicable to the agreement between the Customer and Swarmia Oy (Business ID 3094736-9), a limited liability company incorporated and existing under the laws of Finland, having its principal place of business at Lapinlahdenkatu 16, 00180 Helsinki, FINLAND (“Swarmia”).
Any use of the Service provided by Swarmia is always subject to these Terms, and other terms as may be applicable. By accepting these Terms the Customer acknowledges and agrees that the Customer's use of the Service is subject to this Agreement.
- “Confidential Information” shall have the meaning ascribed to it in Section 10;
- “Customer” means the company or other entity specified in the order for the Service which is submitted to Swarmia and accepted by Swarmia;
- “Customer Material” means data or material uploaded by the Customer or the Customer's affiliate or their contractors or consultants to the Service or otherwise communicated to or made available to Swarmia on behalf of the Customer for the provision of the Service or other material which is separately defined as Customer Material by the Parties;
- “Customer Systems” means own devices, systems, applications, connections and software of the Customer or its affiliates integrated, used or otherwise made available to Swarmia in connection with the Service;
- “Intellectual Property Rights” means (i) patents, inventions, designs, copyright and related rights, database rights, trade marks and related goodwill, trade names (whether registered or unregistered) and rights to apply for registration; (ii) proprietary rights in domain names; (iii) knowhow and confidential information; (iv) applications, extensions and renewals in relation to any of these rights; and (v) all other rights of a similar nature or having an equivalent effect anywhere in the world; and
- “Web Site” means Swarmia's internet website at https://www.swarmia.com/
- The Service is described at Swarmia's Web Site, and it is available for authorized use at https://app.swarmia.com/.
- Swarmia reserves the right to make changes to the Service at any time. If a change has a material adverse effect on the agreed functionality of the Service or the agreed service levels, Swarmia shall inform the Customer of such change at least thirty (30) days before the effective date of the change. In such case the Customer shall have the right to terminate the Agreement as of the effective date of the change subject to a fourteen (14) days' prior written notice. The termination notice must be delivered to Swarmia in writing.
- Swarmia shall always be entitled but shall have no obligation to make such changes to the Service that (a) concern or relate to the production environment of the Service and do not have a material adverse effect on the agreed contents of the Service, (b) are necessary to prevent any occurrence of data security risk to the Service, or (c) result from compliance with law. For the avoidance of any doubt, the Customer shall not have a right to terminate the Agreement due to changes set out in this Section 2.3.
- Unless expressly set out to the contrary, the Service is not subject to any particular service levels, and is provided to the Customer strictly on an “as is” and “as available” basis, and Swarmia makes no representation or does not warrant the availability of the Service at any particular time.
Right to Use the Service
- Subject to Customer's due payment of the applicable Fees and compliance with these Terms, Swarmia hereby grants to the Customer and its affiliates, including their employees, consultants and contractors, a nonexclusive, non-transferable, non-sub licensable, limited right and license to use the Service during the term of the Agreement subject to these Terms. The Customer is responsible for acts and omissions of its affiliates (and their consultants and contractors) as for its own under this Agreement.
- The Customer's right to use the Service is limited to the Customer's and its affiliates' internal business operations and internal business purposes only.
- The Customer may not use the Service for the benefit of any third party or grant any third party, except its affiliates, consultants and contractors, access to use the Service.
- The Customer shall be responsible for providing appropriate access rights to Swarmia and limiting access to Customer Systems, Customer Material and Personal Data as strictly necessary for the purpose the Service.
- The Customer shall be responsible for Customer Systems and their functionality used in connection with the Service.
- The Customer shall be responsible for the protection of data communications and Customer Systems and costs for communications and other comparable costs related to use of the Service. The Customer shall be responsible for preparing Customer Systems to meet the operating environment specifications specified by Swarmia and for ensuring that the Service fulfills the Customer's intended purpose.
- The Customer shall be solely responsible for making its own back-ups of any data, including Customer Material. Swarmia shall not be responsible for any loss, destruction or alteration of any Customer Material or any related data or for any resulting costs and damages, including any costs related to the recreating of such Customer Material or any related data.
- The Customer shall ensure that only its own and its affiliates’ users are able to use the Service in accordance with this Agreement and licenses granted to the Customer under this Agreement. The Customer shall be responsible for ensuring that its users maintain their user names and passwords diligently and do not disclose them to third parties. The Customer shall be responsible for all use of the Service when such Customer's user names and passwords are used.
Suspension of Services
- Swarmia shall have the right to suspend the provision of the Service for a reasonable period of time if this is necessary in order to perform installation, change or maintenance work in respect of the Service or if such suspension results from installation, change or maintenance work in respect of public communication networks. Swarmia shall also have the right to suspend the provision of the Service due to a data security risk to the Service or if applicable laws or administrative orders require Swarmia to do so.
- Swarmia shall always have the right to suspend the Service, if the Customer is in default with its payment of any Fees due under the Agreement and does not pay such Fees despite a request to pay within fourteen (14) days from the date of such request. The suspension may be continued until the Customer has paid all Fees due under the Agreement.
- Swarmia may suspend the Service if the Customer ceases to conduct its business, is adjudicated in bankruptcy or liquidation or corporate restructuring, is found insolvent in recovery proceedings or if a material default in payment has been registered to the Customer.
- Swarmia shall have the right to deny the Customer access to the Service, if Swarmia reasonably suspects that the Customer uses the Service contrary to the Agreement, applicable laws or administrative orders, or in a manner that unreasonably burdens the Service or otherwise jeopardises the provision of the Service to other users. Swarmia may deny such access to the Service without first hearing the Customer.
Intellectual Property Rights
- All rights, title and interest, including all Intellectual Property Rights in and to the Service and any changes thereto shall belong exclusively to Swarmia or its licensors. Except for the express license to use the Service granted to the Customer under and in accordance with the terms and conditions of the Agreement, the Customer shall have no and shall not by virtue of the Agreement obtain any rights, license or interests in and to the Service or any Intellectual Property Rights pertaining thereto.
- All rights, title and interest, including all Intellectual Property Rights in and to the Customer Systems or Customer Material shall belong exclusively to the Customer or a third party. The Customer grants to Swarmia a non-exclusive right and license to use the Customer Systems and Customer Material during the term of the Agreement for the purpose of providing the Service to the Customer.
- The Customer shall be responsible for ensuring that the Customer Material does not infringe upon any third party rights or applicable laws or regulations.
- To the extent Swarmia (or its subcontractor where appropriate) processes personal data on behalf of the Customer, such processing of personal data is subject to Swarmia's Data Processing Agreement.
Free Trial Period
- Swarmia may from time to time offer a free trial for a period of thirty (30) days (“Free Trial Period”). Each Customer may only use this Free Trial Period once.
- Free Trial Period is subject to the Customer's acceptance of these Terms and the Customer's payment details.
- At the end of the Free Trial Period, the Service shall automatically remain in force as a paid subscription unless terminated by the Customer by a written notice to Swarmia before the end of the Free Trial Period.
- Swarmia reserves the right, in its sole discretion, to withdraw or to modify this Free Trial Period at any time without prior notice and with no liability.
- Except as expressly stated in this Section 8, no representations or warranties or other terms of any kind are given in respect of the Service, and all statutory warranties are excluded to the fullest extent possible.
- Save for any applicable statutory liabilities, Swarmia shall have no liability of any kind, indirect or direct, in any circumstances whatever to the Customer or a third party in respect of the Service.
- The Fees are set out in Swarmia's price list as applicable from time to time.
- The Fees for the use of the Service shall be invoiced monthly in arrears.
- Swarmia reserves the right to change the Fees from time to time upon thirty (30) days prior notice. In such a case the Customer shall have the right to terminate the Agreement as of the effective date of the change subject to a fourteen (14) days' prior written notice. The termination notice must be delivered to Swarmia in writing.
- The Fees are exclusive of VAT and any other governmental taxes and levies. Interest on delayed payments accrues in accordance with the Finnish Interest Act (633/1982, as amended).
- Each Party shall keep in confidence all material and information received from the other Party and marked as confidential or which should be understood to be confidential (“Confidential Information”), and may not use such Confidential Information for any other purpose than those set forth in the Agreement. The confidentiality obligation shall, however, not apply to material and information, (a) which is or later becomes generally available or otherwise public; or (b) which the receiving Party has received from a third party without any obligation of confidentiality; or (c) which was rightfully in the possession of the receiving Party prior to receipt of the same from the disclosing Party without any obligation of confidentiality related thereto; (d) which a Party has independently developed without any use of or reference to the Confidential Information received from the other Party; or (e) which a Party is required to disclose under any mandatory law or by order of a court or governmental body of competent jurisdiction.
- Each Party shall promptly upon termination of the Agreement, or when the Party no longer needs the Confidential Information in question for the purpose of performing its obligations or exercising its rights under the Agreement, cease using the Confidential Information received from the other Party and, unless the Parties separately agree on destruction of such Confidential Information, return the Confidential Information in question (including all copies and reproductions thereof) to the other Party. Each Party shall, however, be entitled to retain the copies required by law or administrative orders applicable to such Party.
- Notwithstanding the confidentiality obligation set forth herein, each Party shall be entitled to use the general professional skills and experience acquired in connection with the performance of the Agreement.
- The rights and obligations related to the Confidential Information shall survive the termination or cancellation of the Agreement.
- The Customer agrees to defend Swarmia, at its own expense, against any third party claims or actions where a third party claims that the Customer Material or the use of the Customer Material in accordance with the terms and conditions of the Agreement infringes upon a right of a third party. The Customer undertakes to pay any damages, costs and expenses caused to Swarmia by any such third party claim as well as any damages awarded to a third party claimant by a competent court of law or court of arbitration due to a reason attributable to the Customer Material.
- Swarmia agrees to defend the Customer, at its own expense, against any third party claims or actions where a third party claims that the Service or the use of the Service in accordance with terms and conditions of this Agreement infringes upon copyrights or patent rights of a third party valid in the European Economic Area (EEA), provided that:
- Swarmia is given prompt notice of any such claim;
- the Customer provides reasonable co-operation to Swarmia in the defence and settlement of such claim, at Swarmia's expense; and
- Swarmia is given sole authority to defend or settle the claim.
- In the defence or settlement of any claim, Swarmia may procure the right for the Customer to continue using the Service, replace or modify the Service so that it becomes non-infringing or, if such remedies are not reasonably available, terminate this Agreement without any additional liability or obligation to pay damages or other additional costs to the Customer.
- In no event shall Swarmia be liable to the Customer to the extent that the alleged infringement is based on:
- a modification of the Service in accordance with the Customer's instructions; or
- the Customer's use of the Service in a manner contrary to the instructions given to the Customer by Swarmia; or
- the Customer's use of the Service after notice of the alleged or actual infringement from Swarmia or any appropriate authority.
Limitation of Liability
- The total aggregate liability of Swarmia under and in relation to the Agreement shall not exceed the amount of Fees (excluding VAT) paid by the Customer to Swarmia for the Service during six (6) months immediately preceding the event giving rise to liability.
- Swarmia shall not be liable for any loss of profits, revenue or business, damages caused due to decrease in turnover or production or loss, alteration, destruction or corruption of data or indirect, incidental, or consequential damages.
- The limitations of liability shall not apply to damages caused by willful misconduct or gross negligence or to liability under Section 10 (Confidentiality).
Term and Termination
- The Agreement shall enter into force when Swarmia has accepted the Customer's order for the Service and shall remain in force for a fixed term of twelve (12) months (“Initial Term”). Thereafter, unless terminated by either Party, the Agreement shall remain in force for subsequent twelve (12) month term(s) until terminated by a Party. Each Party shall have the right to terminate the Agreement for convenience at any time, even during the Initial Term, by giving a written notice to the other Party.
- Each Party may terminate the Agreement for cause with immediate effect upon written notice to the other Party if:
- 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
- the other Party is in material breach of the terms and conditions of the Agreement and fails to remedy such breach 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.
- Swarmia shall be entitled to terminate the Agreement with immediate effect and without any obligation to pay damages or any other liability to the Customer where the Customer has itself used or allowed any third party to use of the Service contrary to this Agreement.
- Upon termination for whatever reason, except for termination for convenience by Swarmia, no paid Fees will be returned by Swarmia, and the Customer is obliged to pay the Fees past due at the effective date of such termination. In the event that Fees are not fully paid when due or the obligations set out in the Agreement are not otherwise followed by the Customer, Swarmia reserves the right to terminate the Customer's right to use the Service with immediate effect.
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 seat of arbitration shall be Helsinki, Finland, and the language of the arbitration shall be English.
- Notwithstanding anything set out in Section 14.2 above, Swarmia shall have the right to claim unpaid Fees in a public court.
- Swarmia shall be free to use subcontractors in the performance of its obligations and exercise of its rights under the Agreement. Swarmia shall be liable for the acts and omissions of its subcontractors under this Agreement as for its own.
- Neither Party shall be entitled to assign nor transfer all or any of 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. Swarmia shall, however, have the right to assign the Agreement in connection with a sale or transfer of its business or a relevant part thereof.
- Swarmia shall have the right to update these Terms at its sole discretion. Swarmia shall notify the Customer of such update at least thirty (30) days in advance. Should the Customer not accept the updated Terms, the Customer shall have the right to terminate the Agreement by a written notice to Swarmia, effective as of the effective date of the new Terms.
- Any terms and conditions that by their nature or otherwise reasonably should survive a cancellation or termination of the Agreement shall also be deemed to survive.