(1) These general terms and conditions (“Terms and Conditions”) of the Jelastic service shall apply to Jelastic services (“Service”) provided by DataCenter Finland Oy (Business ID: 1857545-1) (“DataCenter”) to customers (“Customer”) via information networks on a PaaS (Platform as a Service) basis and to the use of the same. DataCenter shall update the technical and operational description of the Service (“Service Specification”) according to these Terms and Conditions.
(2) The Customer shall pay DataCenter for the use of the Service according to a price list (“Price List”).
(3) With regard to any off-the-shelf and other software developed or provided by third parties, the Customer shall undertake to accept and abide by not just these Terms and Conditions but also the terms and conditions applied by third parties to the rights of use, licensing, and service associated with such software.
2 Trial Run and Establishment of Contract
(1) The use of the Service shall begin with a trial run. The Customer may begin the trial run by registering as a test user of the Service on DataCenter’s website (“Trial Run”). Registration as a test user shall require using a personal SMS device in the registration details. The Trial Run shall be governed by these Terms and Conditions, which the Customer shall accept by activating the Trial Run.
(2) The Trial Run shall be free of charge. During the Trial Run, the Customer shall have an opportunity to test a version of the Service with limited functionalities for a period of fourteen (14) days. The Trial Run shall end automatically after fourteen (14) days, at which point the Customer may, if it wishes, register to use the full version of the Service. The Customer may, at any time during the Trial Run, begin to use the full version of the Service by registering as a user of the Service on DataCenter’s website or by signing a Service Contract. The Customer shall no longer be able to begin a Trial Run after registering as a user of the full version of the Service.
(3) Any attempt to circumvent the time limit for the Trial Run shall be considered a violation of these Terms and Conditions. The Trial Run shall end immediately if such an attempt is discovered.
(4) DataCenter shall not be liable for any delays relating to the Trial Run or for any incompatibility of the Service with the Customer’s needs. DataCenter shall not guarantee access to customer support during the Trial Run.
(5) A Service Contract between DataCenter and the Customer shall be established once the parties have agreed separately on the provision of the Service in writing, or when the Customer registers as a user of the Service via DataCenter’s website and begins to use the Service (“Service Contract”).
(6) In the event that DataCenter gives the Customer a written quote concerning the Service (“Quote”), a Service Contract shall be established once the Customer notifies DataCenter of its acceptance of the Quote as is.
(7) A reply by the Customer concerning a Quote in which amendments are requested to the Quote shall not be binding on DataCenter but shall be considered a new request for a quote from the Customer.
(8) A Quote shall not be binding on DataCenter if
information provided by the Customer in its request for a quote or otherwise for the purpose of drawing up the Quote changes before the Quote is given;
a mistake or an omission is found in the information provided by the Customer in its request for a quote or otherwise for the purpose of drawing up the Quote; or
the circumstances change in a manner that affects the content of the Quote prior to the Customer’s having accepted the Quote.
3 General Obligations of DataCenter
carry out any duties for which it is responsible in accordance with the Service Contract, with due care, and with the required degree of competence;
ensure that the Service corresponds to the Service Contract and the Service Specification; and
supply the Customer with any instructions that DataCenter considers necessary for the use of the Service and requirements relating to the operating environment. The Service shall not include training unless otherwise specifically agreed in writing.
4 Obligations of the Customer
The Customer shall
carry out any duties for which it is responsible in accordance with the Service Contract and with due care. The Customer must instruct its employees or any users of the Service who are acting on its account to abide by instructions given by DataCenter;
ensure that the Service is suited to the purpose intended by the Customer;
only use the Service for lawful purposes; and
purchase any hardware, data transmission connections, and software required for using the Service and ensure the operability and security of the same. The Customer shall be responsible for making its operating environment consistent with the configuration given in the Service Specification;
supply DataCenter with adequate and accurate information to enable the provision of the Service and take all possible steps to facilitate the provision of the Service;
take care of the information provided by it to DataCenter to enable the Service and of keeping the same up to date; and
take care of the back-up copying of files and of information security.
5 Scope of the Service
(1) DataCenter shall provide the Service to the Customer via an information network. The Service shall include a platform (“Operating Environment”), onto which the Customer may build or transfer its chosen applications. DataCenter shall maintain the Operating Environment in accordance with the Service Contract and the Service Specification.
(2) DataCenter shall have the right to provide the Service in the manner it deems best and to use various licensors and subcontractors. Furthermore, DataCenter shall have the right to make changes to the Operating Environment and to any techniques, hardware, software, or data transmission connections used in the provision of the Service, or to other components of systems included in the Service, as well as to change licensors and subcontractors.
(3) DataCenter shall be responsible for purchasing the hardware included in the Operating Environment, unless otherwise specified in the Service Contract.
(4) DataCenter shall develop the Service continuously and may introduce changes relating to the Service and the Operating Environment at its discretion. DataCenter shall inform the Customer of any changes that can be expected to affect the Service in advance. If such changes require changes to the Customer’s hardware or software, the Customer shall attend to such changes at its own expense.
6 Usernames and Passwords
(1) DataCenter shall provide the Customer with usernames and passwords as well as other IDs to enable the use of the Service for the duration of the validity of the Service Contract. The right of use of the Customer’s IDs shall cease automatically upon the expiry of the Service Contract.
(2) DataCenter shall have the right to change usernames and passwords if necessitated by official regulations or service-related, commercial, or technical reasons. DataCenter shall give the Customer reasonable notice of such changes.
(3) The Customer may also ask DataCenter to change a username or a password for a fee.
(4) The Customer shall keep all IDs safe, ensuring that they are not accessible to outsiders. The Customer shall immediately notify DataCenter if IDs have become known to outsiders or if there is reason to believe so, or if the Service has been otherwise used in an unauthorised manner. The Customer shall be liable for all use of the Service by means of its IDs.
7 Use of the Service
(1) The Customer shall be liable for all data uploaded to the Service or to the servers of DataCenter or third parties via the Service (“Data”).
(2) The Customer shall ensure that the Data
do not cause disruptions in telecommunication networks, hardware, or software;
do not violate the intellectual property rights of third parties; and
are not illegal or conflict with official regulations.
(3) DataCenter shall have the right to remove any Data that violate Section 8(2) from the Service or to prevent the use of the same.
(4) DataCenter shall have the right to prevent the Customer’s access to the Service without consulting the Customer, if DataCenter has a justified reason to suspect that the Customer is using the Service in a manner that violates the Service Contract.
8 Deployment of the Service
(1) DataCenter shall begin to provide the Service on an agreed date or within a reasonable period of time from the conclusion of the Service Contract, provided that the Customer has registered as a user of the Service.
(2) The provision of the Service shall begin once DataCenter notifies the Customer that the Service is available.
(3) In the event that the deployment of the Service is delayed due to reasons pertaining to the Customer or a third party, including a licensor or a telecommunications company providing telecommunication network connections, the delivery deadline shall be extended until the issue that prevents the deployment of the Service has been rectified or eliminated.
(4) DataCenter shall have the right to charge payments concerning the Service also from periods during which the Service could not be provided due to reasons pertaining to the Customer.
(5) If the adoption of the Service is delayed due to reasons pertaining to the Customer, the delivery deadline shall be extended until the issue that prevents the adoption of the Service has been rectified or eliminated. The right of DataCenter to charge for the Service shall begin as of when the Service would have been available as far as DataCenter is concerned.
(6) DataCenter shall, where possible, undertake to notify the Customer of any impending delays as soon as the same has come to its knowledge as well as of the estimated new delivery time. DataCenter shall not be liable for delays unless a binding delivery deadline and consequences of missing the same have been specifically agreed in the Service Contract.
(7) The Customer shall, immediately after the Service has been deployed, check the operability of the Service and the operability of any hardware associated with the same, and report any inoperability or other shortcomings or defects in the Service immediately. If the Customer has not reported any defects within fourteen (14) days, or if the Customer has adopted the Service for its intended purpose (production use), the Service shall be deemed to have been deployed as agreed.
9 Availability of the Service, Support, and Maintenance
(1) The Service shall be provided in accordance with the Service Contract, excluding any temporary downtime, which may be due to maintenance, updates, or repairs to the Service, or to measures taken to ensure or restore the availability, performance, recoverability, information security, or administrability of the Service, or other similar disruptions. DataCenter shall not be liable for damages resulting from downtime. DataCenter shall give the Customer notice of downtime where reasonably possible.
(2) DataCenter shall keep the Service operational and provide customer support in accordance with the Service Contract. Unless otherwise agreed, customer support (Service Desk) shall be available between 8.00 am and 5.00 pm on weekdays.
10 Price and Payment Terms
(1) An up-to-date Price List for the Service shall be kept available at http://www.datacenter.fi/jelastic/jelastic-hinnat.
(2) The Customer may pay for the Service via PayPal by depositing funds in the Service. DataCenter shall make deductions from these funds to cover the use of the Service on a pay-as-you-go basis. If the Customer has failed to reserve enough funds via its PayPal account, the provision of the Service shall be discontinued. DataCenter shall not return any unused funds if the Service is terminated.
(3) DataCenter and the Customer may agree on a model based on billing in arrears, whereby the Customer shall subscribe to the Service online and pay for the same against invoices sent by DataCenter. The payment term for invoices shall be fourteen (14) days net. DataCenter shall charge interest on any late payments according to the law.
(4) In the case of billing in arrears, the Customer shall pay DataCenter service charges according to the Price List and based on its use of the Service once a month in arrears.
(5) DataCenter shall have the right to revise the Price List by sending a notification of the changes to the email address associated with the Service at least thirty (30) days before the entry into force of the changes.
(6) DataCenter shall always have the right to raise the price of the Service by an amount equivalent to increases in any taxes or other public law charges included in the same.
(7) DataCenter shall always have the right to bill or charge the Customer for any additional costs incurred as a result of
inaccuracies or omissions in the Data;
corrections and changes made by the Customer to the Data after the establishment of the Service Contract; or
delays caused by the Customer or additional work carried out on the Customer’s request or due to a reason pertaining to the Customer.
(8) Should the Customer fail to pay an invoice by the due date and make the payment within fourteen (14) days of a written reminder, DataCenter may discontinue the provision of the Service until the payment has been made.
11 Intellectual Property Rights
(1) Rights to the Service, DataCenter’s data, and any changes made to the same shall belong exclusively to DataCenter or a third party. No intellectual property rights shall be transferred on the basis of the Service Contract or these Terms and Conditions.
(2) The Customer shall get rights of use to the Service and any documents, data, and software related to the same for its internal purposes for the duration of the validity of the Service Contract to the extent that is necessary for making use of the Service in accordance with the Service Contract.
(3) The Customer shall not, without prior written consent from DataCenter, have the right to copy or change DataCenter’s data, documents, or software, or to disclose the same to third parties, unless otherwise stipulated in mandatory laws.
12 Violations of Intellectual Property Rights
(1) DataCenter shall ensure that the Service does not violate the intellectual property rights of third parties in the agreed country of use. Unless otherwise agreed in writing, the agreed country of use shall be Finland
(2) DataCenter shall have an obligation to defend the Customer at its expense, if a claim is made against the Customer stating that the Service violates the intellectual property rights of a third party in the agreed country of use, provided that the Customer notifies DataCenter of the claim immediately in writing and allows DataCenter to stand as the defendant and supplies DataCenter, upon its request and at its expense, all necessary information available and assistance, as well as any necessary powers of attorney. DataCenter shall be liable to pay any awarded or agreed damages to a third party, if the Customer has acted as described above.
(3) If DataCenter has a justified reason to believe or if it is established at a trial that the Service violates the intellectual property rights of a third party in the agreed country of use, DataCenter shall have the right and an obligation, at its own expense, to either
secure for the Customer the right to continue using the Service or a part thereof;
substitute another service corresponding to the Service Contract for the Service; or
amend the Service so that the violation is eliminated.
(4) If none of the options above is feasible for DataCenter on reasonable terms, the Customer shall, at DataCenter’s request, cease to use the Service. In such circumstances, DataCenter shall refund the price paid by the Customer for the Service less an amount equivalent to the period of time during which the Service was in use. DataCenter shall also have the right to terminate the Service Contract with regard to the Service in question with immediate effect and to discontinue the provision of the Service.
(5) However, DataCenter shall not be liable for any claims that
are made by a party that exercises control over the Customer or over which the Customer exercises control in the manner defined in the Accounting Act;
are due to a change introduced to the Service by the Customer or in compliance with instructions given by the Customer in writing; or
are due to the use of the Service in conjunction with a product or service not provided or approved by DataCenter.
(6) The Customer shall be liable for any direct or indirect losses incurred by DataCenter, DataCenter’s other customers, or third parties from violations of DataCenter’s intellectual property rights in full.
(7) The Customer shall ensure that it has all necessary rights of ownership and intellectual property rights to all Data that it supplies to DataCenter. Rights of ownership or intellectual property rights to such materials and Data shall not be transferred to DataCenter in connection with the use of the Service.
13 Handling and Disclosure of Personal Data
(1) DataCenter shall, in the course of providing the Service, only handle personal data that are related to subscribing to the Service and to maintaining and managing the customer relationship. DataCenter shall not handle any other personal data in connection with the provision of the Service.
(2) The Customer shall be solely responsible for the handling of any personal data it transfers to the Service in connection with using the Service or as part of the Data. The Customer shall abide by the legislation in force. The Customer shall undertake to only handle personal data to the extent and for such purposes that are necessary and permitted by law.
(3) The parties shall agree to abide by the latest version of personal data legislation when handling personal data.
(1) Each party shall undertake to keep absolutely confidential and not disclose any data or information it receives from the other party that have been marked as confidential or that must be understood as being such. The parties may only use such information and data for purposes that are consistent with the Service Contract. The parties shall only have the right to disclose such data and information to such of their employees who need to have the information in question in order to make use of the Service in the manner intended in the Service Contract. The parties shall ensure that their employees and any subcontractors that they use agree to abide by the aforementioned non-disclosure provisions.
(2) After the expiry of the Service Contract, each party shall immediately discontinue using any data and materials it has received from the other party. The parties shall return or destroy said data and all copies thereof in a reliable manner upon request once the Service Contract expires or once they no longer need the data or information in question for the purposes of the Service Contract. The parties shall, nevertheless, have the right to retain any data required by law or official regulations as well as any back-up copies generated in the course of their normal operations.
(3) Unless otherwise agreed in writing, the rights and obligations arising from this Section 14 shall cease five (5) years from the expiry of the Service Contract.
15 Limitation of Liability and Liability for Damages
(1) DataCenter shall not be liable for any direct, indirect, specific, extraordinary, incidental, or pecuniary damages, including loss of profit. DataCenter shall not be liable for any destruction, loss, corruption, or temporary inaccessibility of the Customer’s data or files or for any damages or costs incurred from the same, such as costs incurred from the need to recreate files, unless otherwise agreed in writing.
(2) DataCenter’s liability for damages shall in all cases be limited to six (6) times the computational monthly price of the Service at the time of the infringement, excluding value-added tax.
(3) The limitation of liability pursuant to this Section 15 shall also apply unaltered to DataCenter’s executives and employees.
(4) The limitation of liability pursuant to this Section 15 shall not apply in cases where the damage has been caused intentionally or through gross negligence.
16 Force Majeure
(1) Neither party shall be liable for any delay or damage resulting from an obstacle beyond the control of the party concerned, which the party cannot be reasonably expected to have taken into account at the time of concluding the contract and the consequences of which the party could also not reasonably have avoided or overcome. Unless otherwise proven, events that are considered to constitute a force majeure shall include, among others, war or rebellion, earthquake, flood, or other similar natural disaster, disruptions to public transport, public data transmission, or public electricity supply, import or export bans, strike, lockout, boycott, or other similar labour dispute actions.
(2) A force majeure event that has befallen a party’s subcontractor shall also be considered a force majeure event affecting the party concerned, if the outsourced service cannot be provided or procured from elsewhere without incurring unreasonable costs or significant delays.
(3) A party shall immediately inform the other party in writing of any force majeure event as well as of the cessation of the same.
17 Validity and Termination of the Service Contract
(1) Provisions on the validity of the Service Contract and the terms of termination of the same shall be laid down in the Service Contract.
(2) Unless otherwise agreed, if concluded for a fixed term, the Service Contract shall, after the end of the agreed fixed term, remain in force for one year at a time, unless it is terminated no later than one (1) month before the expiry of the Service Contract. If in force until further notice, the Service Contract must be terminated in writing and shall expire one (1) month after termination. The Service Contract may be terminated by sending notice thereof by email to email@example.com.
(3) DataCenter shall have the right to terminate the Service Contract in full or in part with immediate effect and to discontinue the provision of the Service if
the use of the Service has been fully discontinued for more than one month;
the Customer’s payment is late despite a written reminder submitted by DataCenter by more than thirty (30) days from the date of the reminder;
the Customer has failed to reserve enough funds in the Service to cover the bill for the use of the Service during the previous month; or
the Customer is suspected of having used the Service for unlawful purposes.
(4) Termination by DataCenter for the reasons referred to above in Section 17(3) shall not release the Customer from its obligation to pay any bills already accumulated, unless the termination of the Service Contract is due to a force majeure event.
(5) Each party shall have the right to terminate the Service Contract with immediate effect if the other party becomes subject to liquidation, debt restructuring, or other insolvency proceedings, or if it is otherwise clear that the party in question will not be able to meet its financial obligations under the Service Contract; or has committed a material breach of its obligations under the Service Contract and failed to rectify the breach within thirty (30) days of having received written warning thereof.
(6) If DataCenter terminates the Service Contract due to a breach of contract committed by the Customer, DataCenter shall not be liable to refund any payments already received on the basis of the Service Contract pursuant to the Service Contract.
18 Applicable Law and Disputes
(1) The Service Contract shall be governed by the laws of Finland, excluding choice of law provisions.
(2) Any disputes arising from the Service Contract shall be primarily resolved by means of negotiations between the parties and, should these fail, 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.
19 MISCELLANEOUS PROVISIONS
(1) DataCenter shall have the right to use the Customer as its reference subject to the Customer’s written consent.
(2) DataCenter shall have the right to assign the Service Contract and any of its rights and obligations under the same to a third party or to use subcontractors to fulfil its obligations under the Service Contract without informing or seeking consent from the Customer beforehand. The Customer may not assign the Service Contract or any of its rights or obligations under the same to any third party without prior written consent from DataCenter.
20 Validity of the Terms and Conditions
These Terms and Conditions shall remain in force until further notice as of 23 June 2016. DataCenter reserves the right, at any time and without prior notice, to make changes to these Terms and Conditions, the Service Specification, or the Price List.