General Terms And Conditions For Pointscene Services
GENERAL TERMS AND CONDITIONS FOR POINTSCENE SERVICES
These General Terms and Conditions for Pointscene Services (Terms), in conjunction with the Purchase Order and other possible attachments to the Agreement govern the provision and use of the interactive map-based and browser enabled SaaS data management and sharing platform owned and provided by Pointscene Oy (Pointscene or we), a limited liability company incorporated and existing under the laws of Finland with its registered office at Lapinlahdenkatu 16, FI-00180 Helsinki Finland and business identity code 2620376-2.
By accepting this Agreement e.g. by email, in connection with signing the Purchase Order or as part of the sign-up procedure of the Services (e.g. by clicking I agree), or by accessing or using the Services in any manner, the Customer and any authorized User(s) accept the terms and conditions of this Agreement and agree to be bound by them.
The Services are exclusively made available to individuals acting as legal representatives, employees, or agents of our Customer as well as Users authorized by such Customer, as set forth below. Any individual acting as legal representative, employee or agent of a Customer represents that he/she has the authority to bind such Customer and related Users accessing the Services through his/her account to this Agreement, in which case you or your shall refer to the respective Customer and associated User(s) thereof.
The Services are not intended for consumer use.
If you cannot or do not agree to all terms and conditions in this Agreement, or if you are not eligible or authorized to do so, you shall not access or use the Services.
For clarity, if there is a conflict between these Terms and the Purchase Order, the Purchase Order shall prevail.
Pointscene reserves the right to change these Terms from time to time at discretion. Should such changes be of material nature with adverse effects on your rights hereunder, we shall provide you with a prior notice of at least thirty (30) days in case you have a user account. Otherwise, we shall post the updated Terms on our website.
If you do not accept such changes to these Terms, you have the right to terminate the Agreement by notifying Pointscene thereof in writing prior to the effective date of such change. Continued use of the Services after any changes stated herein, shall constitute your consent to such changes. The right of termination hereunder does not apply to situations where the changes are attributable to amendments of applicable legislation and/or authority decisions.
- 1. DEFINITIONS
As used in this Agreement, the following capitalized terms shall have the meaning set out below.
|Agreement||means the Purchase Order, these Terms and other attachments, such as an SLA, where applicable.|
|Additional Services||means any separately agreed training-, support-, maintenance and integration services provided by Pointscene to Customer and attached as an appendix hereto, if any.|
|API Documentation||means the documentation relating to the Pointscene API provided to the Customer by Pointscene pursuant to the Purchase Order.|
|Customer||means the business entity having subscribed to the Services by executing a Purchase Order with Pointscene.|
|Customer Application||means the Customer’s own and/or a third-party software CAD/GIS/BIM applications or other software applications which is integrated to the Pointscene SaaS with the Pointscene API from time to time.|
|Data Controller||has the meaning given to it in the Data Protection Legislation.|
|Data Processor||has the meaning given to it in the Data Protection Legislation.|
|Data Protection Legislation||means all mandatory laws and regulations applicable to processing of Personal Data from time to time, including the EU General Data Protection Regulation 2016/679 and all related national laws, regulations and other statutes implementing the EU General Data Protection Regulation.|
|User||shall mean any authorized employee, representative or agent that has been granted the right to use and access the Services by and on behalf of Customer hereunder.|
|Intellectual Property Rights||means copyrights and related rights (including database and catalogue rights and photography rights), patents, utility models, design rights, trademarks, tradenames, trade secrets, know-how and any other form of registered or unregistered intellectual property rights or statutory protection of any kind and applications for any of the foregoing.|
|Party||means Pointscene or the Customer (jointly the Parties).|
|Personal Data||has the meaning given to it in the Data Protection Legislation.|
|Purchase Order||means the separate purchase order executed by the Parties, which forms a part of this Agreement.|
|Service Fees||means the monthly or yearly fee payable by Customer to Pointscene for the use of and access to Pointscene SaaS and Pointscene API, as set forth in the Purchase Order.|
|SLA||means the separate service level agreement executed by the Parties and attached as an appendix hereto, if any.|
|Pointscene API||means the application programming interface provided to the Customer by Pointscene pursuant to this Agreement if the Pointscene API forms a part of the Services pursuant to the Purchase Order.|
|Pointscene User Interface||means the browser enabled user interface provided to the Customer by Pointscene pursuant to this Agreement.|
|Pointscene SaaS||means the online platform forming a part of the Services through which Customer may upload Customer Data for Customer-controlled data documentation-, management and distribution purposes and use such Customer Data between different Customer Applications, as enabled by the Services.|
|Services||means Pointscenes’ interactive map-based and browser enabled SaaS data documentation-, management and distribution platform consisting of website pointscene.com and related subdomains, including next.pointscene.com, Pointscene SaaS, Pointscene User Interface and/or Pointscene API (as set out in the Purchase Order) as well as possible Additional Services agreed between the Parties in writing.|
|Third Party Users||means any third-party individual not authorized as User by the Customer that is granted access to Customer Data by Customer via Customer Application through Pointscene API and/or via publicly held third-party website.|
- 2. SERVICE DESCRIPTION
- Pointscene’s Services are especially targeted for Customers operating as a construction site stakeholder by enabling the Customer to achieve high-end situational awareness and elevated construction site productivity with connected reality measurement and geographical on-site data.
- By using our web based Pointscene SaaS, the Customer gains full control over Customer Data uploaded to our Services by the Customer. The automated data analysis functionalities of our Services will process the Customer Data by organizing it in a user-friendly “reality capture” form by time, place, project, and data type. To this end, Customer Data may be presented for example in geo-referenced 3D point clouds, ortho photos, photos and videos.
- Subsequently, this allows the Customer to document Customer Data in a 3D-form as well as manage and distribute different sets of Customer Data between Users and integrate Customer Data with Customer Application through Pointscene API.
For a more detailed presentation on the specifications of our Services, please refer to the service description available at [●].
- 3. REGISTRATION TO THE SERVICES
- In order to access and use our Services, the Customer must register at https://next.pointscene.com by creating a user account and truthfully provide requested up-to-date information. Customer shall be responsible for the information provided to the Services by the Customer. Registration shall be free of charge. Each Customer may only possess one (1) user account at a time. However, the Customer may create an unlimited number of user rights to its user account for authorized Users.
- Customer shall be solely responsible for actions and omissions made through the Customer’s user account, including Customer Data uploaded to the Services under the user account. Username and passwords are of personal nature and may not be transferred, disclosed, or assigned to or used by third parties.
- In case a Customer’s password and/or username is subject to an unauthorized disclosure to a third-party, Customer shall immediately notify Pointscene of such disclosure. We reserve the right to block your and/or Users’ access to your user account without notice thereof, if we have a reason to suspect that your user account is being used for fraudulent purposes or malpractice.
- Under no circumstances shall Pointscene be responsible for any unauthorized use of a Customer’s user account nor any damages incurred by the Customer due to such unauthorized use. Customer shall be fully liable for any possible damages incurred by Pointscene in relation to an unauthorized use of a Customer’s user account.
- You must be fifteen (15) years or older to access and use the Services. Any access to or use of the Services by anyone under 15 is expressly prohibited.
Notwithstanding above, Customer may provide access to Customer Data via Customer Applications to Third-Party Users through Pointscene API and/or publish Customer Data on publicly held third-party sites. Customer shall be solely responsible for the actions and omissions of Third-Party Users and liable for any possible damages incurred by Pointscene in relation to the use of Customer Data by Third-Party User.
- 4. POINTSCENE USER INTERFACE AND POINTSCENE API
- At the Customer’s sole discretion, Pointscene provides to the Customer the Pointscene API as part of the Services as set out in the Purchase Order, in addition to the Pointscene User Interface that forms an integral part of the Services.
- The Pointscene User Interface is a web-based application through which Users may for example manage and share linked Customer Data to other Users of the Services.
- The Pointscene API is used by Customer to integrate Customer Application to the Pointscene SaaS. For clarity, Customer shall not use the Pointscene API for any other purpose.
- The terms relating to the Pointscene API included herein shall apply if the Customer has chosen Pointscene API to be included in the Services.
- 5. RIGHT TO USE THE SERVICES
- Subject to compliance with the terms agreed in the Agreement, Pointscene grants to Customer and any Customer’s Users a limited, revocable, non-exclusive, non-transferable and non-sublicensable (except as set forth below in Section 5.2) right to use the Services during the term of this Agreement solely for the purposes of Customer’s business operations as set out herein.
- Subject to compliance with the terms agreed in the Agreement, Pointscene grants the Customer a limited, revocable, non-exclusive, non-transferable and non-sublicensable right to sublicense the license rights set forth in Section 5.1 solely to Third-Party Users and solely with respect to Pointscene User Interface, provided that (i) any sublicense granted to any Third-Party User by Customer in accordance with this Section 5.2 may be granted solely without further sublicense rights; and (ii) Customer will be responsible and liable for the acts and omissions of such Third-Party Users, including compliance with the Agreement, as if such acts or omissions were Customer’s own acts or omissions.
- The Pointscene API shall be used in accordance with the API Documentation.
- 6. SERVICE FEES
- The Service Fees set out in the Purchase Order shall apply to Customer’s use and access to the Services.
- Unless otherwise indicated, all prices are exclusive of VAT and any other applicable taxes or fees/payment charges imposed by public authorities or financial institutions from time to time. Such taxes and fees shall be added to the prices and be borne by the Customer.
- Payment of the monthly Service Fees relating to Pointscene SaaS and Pointscene API shall be made monthly in arrears, unless otherwise agreed in the Purchase Order. Payments shall be made against an invoice issued by Pointscene to Customer, as agreed in Purchase Order.
- Pointscene may introduce new features and functionalities to the Pointscene SaaS at any time at its sole discretion and shall inform Customer thereof. Such additional features may be implemented in the Customer’s Services subject to an additional service fee agreed by the Parties. Any notices by Customer relating to invoices or payments hereunder shall be given in writing to Pointscene within fourteen (14) days from the date of payment or receipt of the relevant invoice.
- The payment term is fourteen (14) days. Interest on overdue payments shall accrue according to the Finnish Interest Act, unless otherwise agreed by the Parties. The Customer shall be responsible for the reasonable costs incurred by Pointscene when collecting overdue fees.
- Without prejudice to its other rights, Pointscene may temporarily disable the Customer’s and Users’ access to the Services or terminate the Agreement with immediate effect in the event the Customer has overdue payments in excess of thirty (30) days.
- Pointscene is entitled to adjust the monthly Service Fees by 3% once in every calendar year by providing the Customer with a prior notice of at least thirty (30) days.
- All Service Fees and payments made to Pointscene under this Agreement are non-refundable. For clarity, in the event of early termination of the Agreement, Pointscene shall invoice the remaining Service Fees without undue delay.
- 7. AVAILABILITY
- If a separate SLA has been executed, and if there is a conflict between these Terms and the SLA, the SLA shall prevail.
- Pointscene will make reasonable efforts to keep the Services operational. Pointscene shall have the right to suspend the availability of the Services from time to time due to installation, change or maintenance work or due to severe data security risk to the Services or if required by law or public authorities. If Pointscene suspends the Services for this reason, it shall inform the Customer of the suspension and the duration of the estimated suspension in advance or, if this is not reasonably possible, without undue delay after Pointscene has become aware of such occurrence.
- Pointscene shall have the right to deny the Customer’s and Users’ access to and use of the Services without any prior notice to the Customer, if Pointscene suspects that the Customer or User breaches this Agreement or burdens or uses the Services in a manner which may jeopardise the availability of the Services to other users. Pointscene shall without undue delay inform the Customer of the reasons for such denial.
- The Customer acknowledges that interruptions to the availability of the Services may also occur due to no fault of Pointscene, for example, in the event of data connection disruptions, interruptions to the availability of systems or components delivered by Pointscene’s subcontractors and other third-parties and interruptions due to force majeure events (see also Section 22.2 (MISCELLANEOUS, Force Majeure) below).
- In case Additional Services not covered by this Agreement are provided to Customer by Pointscene, Pointscene shall have the right to charge the applicable additional fees and charges relating to these services as separately agreed by the Parties.
- Except as specifically provided under this Agreement, the Services are provided “as is” and with the functionalities available at each time without warranty of any kind, either express or implied, including but not limited to the warranties of merchantability and fitness for a particular purpose.
- 8. RESTRICTIONS ON USE OF THE SO SERVICES
- The Customer, User and Third-Party Users may use the Services only and strictly in accordance with the terms of this Agreement.
- Unless otherwise permitted in this Agreement, the Customer, User or Third-Party User may not:
- make changes to the Services;
- circumvent or attempt to circumvent any usage control and restrictions or anti-copy features of the Services;
- probe, scan or test the vulnerability of the Services;
- use the Services and the content available through the Services in any manner that could damage, disable, overburden or impair the Services;
- use any data mining, robots, scraping, or similar data gathering or extraction methods;
- use, copy, sell, resell, rent, transfer, license or otherwise provide anybody with the Services and/or the content of the Services available through the Services, except as provided herein;
- interfere with other users’ use of the SO Services;
- reverse engineer or decompile the Services or access the source code thereof, except as permitted by law;
- use the Services for transmitting any unauthorized advertising, promotional materials, junk mail, spam, chain letters, contests, pyramid schemes, or any other form of solicitation or mass messaging;
- use the Services in violation of applicable law;
- use the Services in ways that violate Intellectual Property Rights or privacy of third-parties or users; and/or
- use the Services to transmit any material that contains adware, malware, spyware, software viruses, worms or any other computer code designed to interrupt, destroy, or limit the functionality of computer software or equipment.
- Pointscene may set and enforce limits on the use of Services (e.g. limiting the number Users or Third-Party Users the Customer may authorize and limiting the amount of Customer Data shared through Pointscene API), in its sole discretion. For clarity, Customer shall comply with any such limits.
- Further, Customer may choose to, but is not required to provide suggestions, data, feedback, and other information to Pointscene regarding possible improvements of the Services (Feedback). All rights, titles, and interests in and to all intellectual property rights in or related to the Feedback, and all parts and copies thereof, shall vest in and be the sole and exclusive property of Pointscene.
- 9. MODIFICATIONS
Pointscene may make modifications or changes to the Pointscene User Interface, Pointscene API and Pointscene SaaS at any time at its sole discretion and without notifying the Customer thereof, provided that such changes do not materially affect the Customer’s or Users’ use of the Services. If Pointscene introduces changes materially affecting the use of the Services, Pointscene will notify the Customer thereof thirty (30) days in advance and if the Customer does not accept such material change made by Pointscene, the Customer has the right to terminate the Agreement by notifying Pointscene thereof prior to the effective date of such change.
- 10. THIRD-PARTY SERVICES
- The Customer acknowledges that the data and other information provided in or generated through the Services, including Customer Data may originate from third-party sources and Pointscene shall have no liability for the accuracy or completeness of such information.
- This Agreement covers exclusively the Services and the use thereof and any and all third-party services and platforms (such as payment services) included or linked to the Services are provided by the relevant third-parties and covered by their terms of service or other agreement or licenses. Pointscene does not assume any liability in regard to the use of such third-party services and platforms.
- 11. GENERAL OBLIGATIONS OF CUSTOMER
- Customer shall ensure that the Users and Third-Party Users use the Services in compliance with this Agreement. Customer is responsible for conducting end-user license agreements with regard to Third-Party Users’ use of the Customer Application. Such end-user license agreements shall be in conjunction with this Agreement. Misuse of the Services by Users or any Third-Party Users may lead to termination of this Agreement or suspension or denial of access to and use of the Services.
- The Customer is responsible for acquiring and maintaining any and all network connections, additional hardware and software required for using the Services and is liable for maintaining any firewall and any data security and virus protection systems (including any costs thereof) and for ensuring that the Services fulfil Customer’s intended purpose of use. To the fullest extent permitted under applicable law, Pointscene disclaims any liability and responsibility for the back-up and/or retention of Customer Data uploaded to the Services.
- The Customer shall ensure that all information necessary for the provision of the Services, where applicable, are correct and undertakes to update such information as soon as possible in case such information has changed. Such information required for the provision of the Services shall be provided by Customer to Pointscene in a timely manner.
- The Customer shall be liable for its own compliance with applicable laws. The Customer is liable for filing the notices and reports to any authorities required under applicable law. Such responsibilities and liabilities are not transferred to Pointscene under this Agreement or under the services provided by Pointscene.
- 12. CUSTOMER APPLICATION AND POINTSCENE API
- Unless otherwise agreed, Customer shall be solely responsible for any costs or expenses relating to the integration of the Pointscene API.
- Customer or User may not use the Pointscene API to replicate or compete with the Services or Pointscene.
- 13. AUTHORISED USERS OF CUSTOMER
- Customer is entitled to invite Users exclusively from Customer’s own organisation and shall not provide access to the Services to any third parties.
- Customer is responsible for all use of the Services under Users’ user accounts. Customer shall use all reasonable endeavours to prevent unauthorised access to, or use of, the Services.
- Customer shall remove and manage the access rights to the Services when necessary, such as in case of termination of employment of Customer’s employees.
- 14. CUSTOMER DATA
- In connection with the use of the Services, the Customer and/or User may enter data or materials into the Services (Customer Data).
- Pointscene may store and use Customer Data during the term of this Agreement for the purposes of providing the Services and managing the customer relationship between Pointscene and Customer. Pointscene shall have the right create derivative data built on Customer Data for the purposes of providing the Services and to generate anonymous usage, statistic, and other data from and by analysing the Customer Data.
- The intellectual property rights and title to Customer Data and derivative data created by Pointscene out of Customer Data for the purposes of providing the Services shall belong to the Customer and the Customer shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data.
- The Customer shall ensure that Customer Data does not infringe any third-party Intellectual Property Rights or violate any applicable laws or legislation (including privacy laws). Users and Third-Party Users shall not upload any illegal, offensive, threatening, libellous, defamatory, or otherwise inappropriate data to the Services. In case Pointscene believes, in its reasonable opinion, that any Customer Data violates this Agreement, Intellectual Property Rights or any applicable law, Pointscene shall have the right to delete such Customer Data.
- 15. DATA PROTECTION
- To the extent Customer Data contains Personal Data, Pointscene processes such Personal Data as a Data Processor on behalf of the Customer for the purposes of this Agreement.
- The types of Personal Data processed by Pointscene hereunder as Data Processor may include for example facial images, license plate numbers, worksite markings and types of vehicles, machinery and vessels The data subjects concerned are employees, visitors, bystanders and bypassers.
- With respect to Personal Data Pointscene processes on behalf of Customer, the following terms shall apply:
- Pointscene shall process the Personal Data only in accordance with the terms of this Agreement and any lawful and documented instructions reasonably given by Customer from time to time. In case the aforementioned instructions require measures or work to be performed by Pointscene, Pointscene has the right to charge a reasonable fee for complying with such instructions.
- Customer’s instructions must be commercially reasonable, compliant with Data Protection Legislation and consistent with this Agreement. In case Pointscene detects that any instruction given by Customer is non-compliant with Data Protection Legislation to which Pointscene is subject, Pointscene shall not be obliged to comply with such instruction and shall inform Customer of that legal requirement.
- Pointscene shall ensure that Pointscene’s employees or other persons authorized to process the Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
- In order for Customer to be able to respond to requests from individuals exercising their rights as foreseen in applicable Data Protection Legislation, such as the right of access and the right to rectification or erasure, Pointscene shall provide Customer with commercially reasonable assistance and, without undue delay, take into account the nature of the processing. In case the aforementioned assistance obligations require measures or work to be performed by Pointscene, Pointscene has the right to charge a reasonable fee for handling such assistance requests.
- Taking into account the nature of processing and the information available to Pointscene, Pointscene reasonably assists Customer in ensuring compliance with the obligations set out in Articles 32 to 36 of the EU General Data Protection Regulation (2016/679) (Regulation), including Customer’s obligations to perform security and data protection impact assessments, breach notifications and prior consultations of the competent supervisory authority. In case the aforementioned assistance obligations require measures or work to be performed by Pointscene, Pointscene has the right to charge a reasonable fee for providing such assistance.
- Pointscene makes available to Customer, at Customer’s request, information necessary to demonstrate compliance with the Regulation. In case the aforementioned request by Customer requires measures or work to be performed by Pointscene, Pointscene has the right to charge a reasonable fee for handling such requests.
- Customer acknowledges that due to the nature of the Services, Pointscene cannot control the Personal Data Customer or User submit to Pointscene for processing on behalf of Customer when Customer or User use the Services. Customer acknowledges that it shall be responsible for having a legal ground to process the Personal Data submitted to Pointscene for processing on behalf of Customer. Further, Customer is responsible for the lawful collection, processing and use of the Personal Data submitted to Pointscene for processing on behalf of Customer, and for the accuracy thereof, as well as for preserving the rights of the individuals concerned. Customer shall ensure that the relevant data subjects have been informed of, and have given their consent to, the processing as required by applicable Data Protection Legislation.
- Customer gives a general authorization to Processor to use sub processors for the processing of the Personal Data for the provision and use of the Services.
- Pointscene shall carefully select its sub processors with the diligence of a professional service provider. Pointscene ensures that the involved subprocessors are properly qualified, are under a written data processing agreement with Pointscene and comply with data processing obligations substantially similar to the ones which apply to Pointscene under this Agreement.
- Pointscene may change its sub processors. In case Customer objects such change of sub processor on reasonable grounds, Customer has the right to request change of the sub processor. If Pointscene is not willing to change the sub processor Customer has objected to, Pointscene shall have the right to terminate this Agreement with immediate effect.
- Taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of Pointscene’s processing, Pointscene shall implement and maintain appropriate technical and organizational security measures in order to safeguard the Personal Data processed on behalf of Customer against unauthorized or unlawful processing and damage, and in particular against accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to the Personal Data.
- Pointscene processes Personal Data mainly within the European Economic Area (EEA), but Customer accepts that Pointscene may have Personal Data processed and accessible by Pointscene or its subprocessors outside Customer’s country of domicile or the EEA to provide the Services. In case the processing is subject to any EU Data Protection Legislation and Personal Data is transferred from the EEA for processing in any country outside the EEA that is not recognized by the European Commission as providing an adequate level of protection for personal data, Customer authorizes Pointscene to enter, on behalf of Customer, into the standard contractual clauses adopted or approved by the European Commission applicable to processing outside the EEA, or Pointscene shall provide for other appropriate safeguard for the protection of the Personal Data transferred outside the EEA as set out in the Regulation.
- Customer or an auditor appointed by Customer shall have the right to audit and inspect Pointscene’s activities relating to processing of Personal Data on behalf of Customer under this Agreement to examine the compliance of Pointscene with the Data Protection Legislation. Customer shall bear all costs for any such audit. Where an audit may lead to the disclosure of business or trade secrets of Pointscene or threaten Intellectual Property Rights of Pointscene, Customer shall employ an independent auditor, which is not a competitor of the Pointscene, to carry out the audit, and the auditor shall agree to be bound to confidentiality to Pointscene’s benefit.
- Pointscene shall, without undue delay after having become aware of it, inform Customer in writing about any data breaches relating to Personal Data processed on behalf of Customer hereunder (Breach). Pointscene’s notification about the Breach to Customer shall include at least the following: i) description of the nature of the Breach; ii) name and contact details of Pointscene’s contact point where more information can be obtained; iii) description of the likely consequences of the Breach iv) description of the measures taken by Pointscene to address the Breach, including, where appropriate, measures to mitigate its possible adverse effects.
- Pointscene may process Personal Data on behalf of Customer for the duration of this Agreement. All Personal Data processed by Pointscene on behalf of Customer under this Agreement shall be anonymized without undue delay after the termination of this Agreement, unless otherwise required by applicable law.
- 16. INTELLECTUAL PROPERTY RIGHTS
- All right, title and interest in and to all Intellectual Property Rights in or related to the Services, any usage data generated by the Services and thereto related documentation and analytics (including modifications to any of the foregoing, if any) and all parts and copies thereof shall remain exclusively vested with and be the sole and exclusive property of Pointscene and/or its subcontractors or licensors, as the case may be.
- Except as expressly stated herein, this Agreement does not grant the Customer, User or Third-Party User any Intellectual Property Rights in the Services and all rights not expressly granted hereunder are reserved by Pointscene and its subcontractors or licensors, as the case may be.
- 17. INDEMNIFICATION
- The Customer will indemnify, defend, and hold harmless Pointscene from and against all liabilities, damages, and costs (including settlement costs and reasonable attorneys’ fees) arising out of a third-party claim: (i) regarding Customer Data; or (ii) regarding Customer’s use of the Services in violation of this Agreement.
- Pointscene will defend Customer against any claim that the Services infringe the Intellectual Property Rights of a third-party and pay any damages finally settled or awarded in a trial to the third-party with respect to any such claim, provided that Pointscene is notified promptly in writing of the claim and given sole control of the defence and all related settlement negotiations in relation to the claim as well reasonable assistance and necessary authorisations from Customer to defend or settle the claims on behalf of Customer.
- At any time, if Pointscene reasonably deems that any part of the Services infringes the Intellectual Property Rights of any third-party, Pointscene has the right at its own expense to (i) modify/replace the Services to eliminate the infringement in such a manner that the modified Services comply with this Agreement, or (ii) procure to Customer and User a right to use the Services. If none of the aforementioned alternatives are reasonably possible, Pointscene shall have the right to terminate the Agreement.
- Notwithstanding the foregoing, Pointscene shall not be liable for any infringement or claim thereof in the event the claim (i) is made by any affiliates of Customer; (ii) has resulted from Customer’s, Customer’s supplier’s, Users’ or Third-Party Users use or modification of or addition to the Services; or (iii) could have been avoided by using the latest versions of the Services provided by Pointscene.
- This Section contains Pointscene’s entire liability and Customer’s sole and exclusive remedy in case of Intellectual Property Rights infringements.
- 18. CONFIDENTIALITY
- Neither Party shall disclose to third-parties any material or information received from the other Party marked as confidential or which should be understood to be confidential and shall not use such material or information for any other purposes than those stated in this Agreement.
- The Party shall return all records or copies of confidential information of the other Party at the request of the other Party and at the latest upon the expiry or termination of the Agreement. This shall not apply to confidential information or copies thereof, which must be stored by the receiving Party in accordance with applicable law.
- The obligation of confidentiality is applied during the term of this Agreement and for five (5) years after the termination of this Agreement unless applicable laws require a longer obligation of confidentiality.
- The confidentiality obligation shall, however, not be applied to material and information, (a) which is generally available or otherwise public; or (b) which the Party has lawfully received from a third-party without any obligation of confidentiality; or (c) which was lawfully in the possession of the receiving Party prior to receipt of the same from the other Party without any obligation of confidentiality related thereto; or (d) which a Party has independently developed without using material or information received from the other Party as verified by the written records of the receiving Party; or (e) which a Party is obligated to disclose due to applicable mandatory laws, public authority regulations or court orders. In case of disclosure due to (e), the Party must promptly inform the other Party of such disclosure.
- 19. INTERFACES AND INTEGRATION TOOLS
For the avoidance of doubt, Pointscene User Interface and any other interfaces and integration tools relating to the Services are provided on an “as is” basis. Pointscene may provide the Customer with such other interfaces and integration tools as developed and implemented by Pointscene from time to time. The Customer acknowledges that some interfaces or integration tools may be provided by third parties and/or may have connections or links to third-party service providers’ software or systems. Pointscene shall not, under any circumstances, be liable for the actions of such third-parties or the parts of the interfaces or integration tools which are delivered, maintained, or owned by third parties.
- 20. LIMITATION OF LIABILITY
- The Parties shall not be liable for any indirect or consequential damages caused to the other Party. The foregoing shall not apply to damages resulting from the breach of Sections 16 (Intellectual Property Rights), 17 (Indemnification) or 18 (Confidentiality).
- Pointscene’s total aggregate and total liability under or in connection with this Agreement shall be limited to a) the aggregate Service Fees paid by the Customer for the Services during a period of three (3) months preceding the occurrence for which damages are claimed or b) the yearly fee payable by Customer to Pointscene for the use of and access to Pointscene SaaS and Pointscene API, as set forth in the Purchase Order, whichever is the lesser.
- Nothing contained herein shall be deemed to limit each Party’s liability towards the other Party in the event of and to the extent that the damages are caused by wilful misconduct or gross negligence of the breaching Party.
- Pointscene has no other obligations or liabilities than those that have expressly been agreed upon in this Agreement.
- Pointscene shall not be responsible for any reason whatsoever for the destruction, disappearance of or for changes to the Customer Data, such as the costs incurred by recreation of the files. The Customer shall be responsible for making backup copies with respect to the Customer Data.
- The Services or their contents (including materials or information included in or generated by the Services) do not constitute a legal opinion or advice of any kind. The Customer is responsible for the use and utilisation of the Services and contents of the Services and for the assessment of the impact of the Services and the content of the Services on the Customer’s operations.
- 21. TERM AND TERMINATION
- Unless otherwise agreed in the Purchase Order, this Agreement shall stay in force for an initial fixed term of 12 (twelve) months, whereupon the Agreement shall automatically renew for successive equally long fixed terms until terminated by either Party by providing the other Party with notice at least thirty (30) days prior to the expiry of the ongoing fixed term.
- Pointscene may terminate this Agreement with immediate effect by written notice, if (i) the Customer is dissolved or liquidated, is declared bankrupt or otherwise becomes the subject to other insolvency proceedings; or (ii) Pointscene ceases its business operations or the provision of the Services.
- Both Parties may terminate this Agreement with immediate effect by giving a written notice thereof to the other Party, if the other Party materially breaches its obligations under this Agreement and does not remedy the failure within thirty (30) days of a written notice by the other Party.
- The Customer and Users shall continue to have access to the Services and Pointscene is entitled to charge the Service Fees and other applicable fees until the end of the notice period. Upon expiry or termination of the Agreement, the Customer shall cease to use the Services and return to Pointscene any possible copies of materials provided by Pointscene to Customer hereunder. The Customer shall be responsible for informing the Users and Third-Party Users of the termination of this Agreement and the consequences thereof.
- All provisions of this Agreement that are intended to survive the termination or expiry of this Agreement shall do so, including without limitation Sections 16 (Intellectual Property Rights), 18 (Confidentiality), 20 (Limitation of Liability) and 22.1 (Governing Law and Dispute Resolution).
- 22. MISCELLANEOUS
- Governing Law and Dispute Resolution
- This Agreement shall be exclusively governed by and construed in accordance with the laws of Finland without regard to its choice of law provisions.
- Any dispute, controversy or claim arising out of or relating to this Agreement or a breach, termination or validity thereof shall be settled primarily by amicable negotiations between the Parties. Should the negotiations not lead to a settlement between the Parties within sixty (60) days, any dispute, controversy or claim arising out of or relating to this Agreement, or the breach, termination or validity thereof, shall be finally settled by arbitration in accordance with the Arbitration Rules of the Finland Chamber of Commerce. The number of arbitrators shall be one. The seat of arbitration shall be Helsinki, Finland. The language of the arbitration shall be English. The arbitral proceedings and award shall be confidential.
- Nothing in this Agreement shall be deemed to limit Pointscene’s rights to seek interim injunctive relief or to enforce an arbitration award in any court of law. With respect to any violation by the Customer of any Intellectual Property Rights and/or confidential information of Pointscene and/or payment obligations under this Agreement, Pointscene shall have the right, at its sole discretion, to seek remedies in public courts within any applicable territory.
- Force Majeure
- Neither Party shall be liable for delay and damage caused by an impediment beyond the Party’s control and which the Party could not have reasonably taken into account at the time of conclusion of this Agreement and the consequences of which the Party could not reasonably have avoided or overcome. Such force majeure events shall include, if not proven otherwise, inter alia, epidemic, pandemic, war or insurrection, earthquake, flood or other similar natural catastrophe, interruptions in general traffic, data communication or supply of electricity, import or export embargo, strike, lockout, boycott or other similar industrial action.
- Each Party shall without delay inform the other Party in writing of a force majeure event and the ceasing of such event.
- Where a Party’s performance is prevented for a period in excess of three (3) months due to an event as stated above, either Party shall be entitled to terminate the Agreement.
- Pointscene shall be entitled to use subcontractors for the provision of the Services. Pointscene shall be liable for the subcontractors’ work and services in the same manner as for its own work and services.
- Any notice or other written communication to be given by the Parties under this Agreement shall be in English or Finnish and, with regard to notices to Pointscene, sent by email to the email address email@example.com.
- Entire Agreement
- This Agreement supersedes all prior agreements, arrangements, and understandings between the Parties relating to the subject matter hereof and constitutes the entire agreement between the Parties relating to the subject matter hereof.
- Headings used in this Agreement are for convenience only and do not alter the meaning or interpretation of any provision herein, unless otherwise stated.
- Reference Use
- Customer agrees that Pointscene may use the Customer’s name and logo to identify the Customer as a customer of Pointscene as part of a general list of Pointscene’s customers for use and reference in Pointscene’s promotional and marketing materials.
- If any part of this Agreement is held to be invalid or unenforceable by any court, tribunal or other authority having jurisdiction, this shall not affect the validity or enforceability of the rest of this Agreement. Instead, this Agreement shall be construed and interpreted so that its effect shall remain as close as legally possible to the effect it would have had without such invalidity or enforceability.
- Neither Party may assign this Agreement or any rights or obligations hereunder without the prior consent of the other Party. Pointscene may, however, assign all or any of its rights or obligations hereunder in whole or part to an affiliate or successor or to a purchaser or acquirer of its business assets without the Customer’s prior consent. This Agreement shall be binding upon, and inure to the benefit of, the successors, representatives and permitted assigns of the Parties hereto.
- In addition, Pointscene shall be entitled to transfer its receivables hereunder to a third party.
- Governing Law and Dispute Resolution