Terms of Service
Last updated: 01 July 2023
These Terms of Service (“Agreement”) 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 this Agreement, and other terms as may be applicable. By accepting this Agreement the Customer acknowledges and agrees that the Customer's use of the Service is subject to this Agreement.
- “Affiliate” means an entity that controls, is controlled by or is under common control with another entity, where “control” refers to ownership of more than fifty percent (50%) of the outstanding shares or securities representing the right to vote for the election of directors or other managing authority of another entity;
- “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
- “Service” means Swarmia's engineering performance platform.
- 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 or a material adverse effect for the Customer regarding other aspects of the Agreement, 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 this 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, email being sufficient.
- 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 this 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 this Agreement, 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 and subject to the terms and conditions of this Agreement. 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. Except as otherwise agreed, 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. In the event the Service is suspended under this Section 5.1 for more than twenty-four (24) hours in a single calendar month during the term of this Agreement, Swarmia shall credit the Customer the full monthly fee for such affected Service, which shall be applied to the Customer's next monthly invoice. If there are no upcoming invoices, Swarmia will refund the full monthly fee by using a refund method mutually agreed between the Parties. For the avoidance of doubt, the possible suspensions are informed to the Customer via the Service on a best effort basis after the suspension has been verified by Swarmia. Any unplanned outages shall be resolved by Swarmia without undue delay.
- 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 this 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 this Agreement.
- Swarmia may suspend the Service if the Customer ceases to conduct its business for any other reason than a transfer referred to in Section 16.3, 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 this Agreement, applicable laws or administrative orders, or in a manner that unreasonably burdens the Service or otherwise jeopardizes 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 this Agreement, the Customer shall have no and shall not by virtue of this 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 this Agreement for the purpose of providing the Service to the Customer. Swarmia shall have no and shall not by virtue of the Agreement obtain any rights, license or interests in and to the Customer Systems or Customer Material or any Intellectual Property Rights pertaining to the Customer or its affiliates except as expressly set forth in this Agreement.
- 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 (“Free Trial Period”). Each Customer may only use this Free Trial Period once.
- Free Trial Period is subject to the Customer's acceptance of this Agreement 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.
- 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 this 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, email being sufficient.
- 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 this Agreement. The Customer's Confidential Information expressly includes (but is not limited to) Customer Material and any business, technical or financial information related to the Customer or any of its Affiliates. 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 this Agreement, at any time upon the disclosing Party's request, or when the Party no longer needs the Confidential Information in question for the purpose of performing its obligations or exercising its rights under this 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. For the avoidance of doubt, returning the Confidential Information shall mean that the receiving Party simultaneously deletes the Confidential Information from its own systems. Swarmia shall, however, be entitled to retain the backup of the Customer Material in encrypted format for up to 90 days after which the backup is automatically deleted. For the avoidance of doubt, each Party shall 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 (in intangible form) acquired in connection with the performance of this Agreement.
- The rights and obligations related to the Confidential Information shall survive the termination or cancellation of this Agreement.
Disclaimer of Warranties
- EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, SWARMIA MAKES NO REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. SWARMIA DOES NOT WARRANT THAT: (i) THE SERVICE SHALL OPERATE IN COMBINATION WITH ANY OTHER SERVICES, SYSTEMS, SOFTWARE, HARDWARE OR DATA; (ii) THE SERVICE OR ANY INFORMATION OBTAINED THROUGH THE SERVICE SHALL MEET THE CUSTOMER'S REQUIREMENTS OR EXPECTATIONS; OR (iii) THE SERVICE SHALL BE UNINTERRUPTED, ERROR-FREE OR VIRUS-FREE, OR THAT ERRORS OR DEFECTS THEREIN WILL BE CORRECTED. SWARMIA IS NOT RESPONSIBLE FOR THE IMPACT ON THE ACCURACY, RELIABILITY, AVAILABILITY AND/OR TIMELINESS OF RESULTS OF FACTORS OUTSIDE ITS REASONABLE CONTROL, INCLUDING THE CUSTOMER'S NETWORK ISSUES, VERSIONS OF THE CUSTOMER'S APPLICATIONS, CORRUPTED, INCOMPLETE AND/OR INTERRUPTED DATA RECEIVED FROM THE CUSTOMER OR OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. SWARMIA IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGES RESULTING FROM SUCH PROBLEMS.
- The Customer shall indemnify, defend and hold harmless Swarmia, its Affiliates and its and their respective directors, officers, employees, agents, contractors, successors and assigns from and against any and all actions, suits, proceedings, investigations, demands, judgments, damages, liability, fines, liens, losses, costs and expenses (including reasonable attorneys' fees) arising from or relating to: (i) any claim or threat that the Customer Material or Customer Systems or the use of the Customer Material or Customer Systems in accordance with the terms and conditions of this Agreement infringes upon a right of a third party; or (ii) the Customer's breach of Section 4. 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. The Customer's indemnity obligations under this Section are subject to that: (i) Customer is given prompt notice of any such claim; (ii) Swarmia provides reasonable co-operation to Customer in the defence and settlement of such claim, at Customer's expense; and (iii) Customer is given sole authority to defend or settle the claim.
- Swarmia agrees to defend the Customer and its Affiliates, 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 intellectual property rights of a third party valid in the European Economic Area (EEA) or the United States. Swarmia undertakes to pay any damages, costs and expenses caused to the Customer or it's Affiliates 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. Swarmia's indemnity obligations under this Section are subject to 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 defense 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
- Except as provided in Section 13.3, the total aggregate liability of each Party under and in relation to this Agreement shall not exceed the amount of Fees (excluding VAT) paid by the Customer to Swarmia for the Service during the twelve (12) months immediately preceding the event giving rise to liability.
- Except as provided in Section 13.3, neither Party shall 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 foregoing limitations of liability shall not apply to: (i) damages caused by willful misconduct or gross negligence; (ii) a Party's liability under Section 10 (Confidentiality); or (iii) Customer's payment obligations under this Agreement.
Term and Termination
- This 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, this Agreement shall remain in force for subsequent twelve (12) month term(s) until terminated by either Party by giving a written notice to the other Party at least fourteen (14) days before the end of the then-current term, email being sufficient.
- Each Party may terminate this 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 this 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 this 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 this 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
- This 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 this Agreement, or the breach, termination or validity thereof, shall be arbitrated in accordance with the Arbitration Rules of the Finland Chamber of Commerce, and any resulting award shall be final, binding and non-appealable. The seat of arbitration shall be Helsinki, Finland, and the language of the arbitration shall be English.
- Notwithstanding anything set out in Section 15.2 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 this Agreement. Swarmia shall be liable for the acts and omissions of its subcontractors under this Agreement as for its own.
- Swarmia may use the Customer's name and logo to identify the Customer as a customer of Swarmia. Swarmia's use of the name and logo does not create any ownership right therein and all rights not granted to Swarmia are reserved by the Customer.
- Neither Party shall be entitled to assign nor transfer all or any of its rights, benefits and obligations under this 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 this Agreement to its Affiliate or in connection with a sale, transfer, merger or reorganization of its business or a relevant part thereof.
- Swarmia shall have the right to update this Agreement 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 Agreement, the Customer shall have the right to terminate this Agreement by a written notice to Swarmia, email being sufficient, effective as of the effective date of the new Agreement.
- Any terms and conditions that by their nature or otherwise reasonably should survive a cancellation or termination of this Agreement shall also be deemed to survive.