VAADIN COMMERCIAL TERMS AND CONDITIONS
Updated 28 May 2021; version 2
- Scope of Application
These Vaadin Commercial Terms and Conditions (“Commercial Terms”) are applied to the provision of commercial products and services by Vaadin to its Customers, including subscription fee-based products and services as well as consulting services provided against payment. Software available for download in the vaadin.com service is subject to separate license terms and conditions.
“Agreement” means any agreement that refers to these Commercial Terms and incorporates these Commercial Terms.
“Effective Date” means the date when all parties of the Agreement have signed the Agreement by physical signature or electronic signature or when Vaadin has accepted the Customer’s order for products or Services, either on Vaadin’s online store or otherwise.
“Vaadin” shall mean the Vaadin company who has executed the Agreement. If the Customer’s domicile is in the United States, such Vaadin company shall be Vaadin, Inc., located at 226 Airport Parkway, Ste. 428, San Jose, CA, 95110, United States. If the Customer’s domicile is outside the United States, such Vaadin company shall be Vaadin Ltd (Finnish Business ID 1613563-9), located at Ruukinkatu 2–4, FI-20540 Turku, Finland.
“Customer” shall mean the customer who has executed the Agreement.
“Service” or “Services” shall mean any information, products or services that are supplied by Vaadin to the Customer and that are defined in the Agreement, or in case of Consulting in a statement of work (“SOW”) entered into under the Agreement. The Services may be provided as part of a Subscription or as separately invoiced Consulting.
“Subscription” shall mean a subscription in which one or more of the Services are subscribed to by the Customer. The Subscription may also include licenses to Vaadin Commercial Materials.
“Consulting” shall mean Services, by which Customer purchases Vaadin’s professional expertise, either outside a Subscription or as part of Services provided under a Subscription.
“Intellectual Property Rights” shall mean all copyrights (including the right to modify and assign such copyright), patents, utility models, designs, trademarks, logos, domain names, inventions, improvements, trade secrets, know-how and all other intellectual property rights (including any applications or rights to the foregoing).
“Materials” shall mean all works of authorship, programs, software, code, source code, system design, processes, tools, reports, manuals, supporting materials, drawings, diagrams, flowcharts, business templates, documents, materials, technology, trademarks, trade secrets, websites, modifications, updates, enhancements, innovations (whether or not patented) and concepts.
“Vaadin Non-Commercial Materials” shall mean all Materials that are owned by Vaadin Ltd (Finnish Business ID 1613563-9) and that are made available for free in the vaadin.com online service, Github and/or other services, typically under an open source or other non-commercial license.
“Vaadin Commercial Materials” shall mean all Materials that are owned by Vaadin Ltd (Finnish Business ID 1613563-9) and that are made available against a payment in the vaadin.com online service, Github and/or other services, typically under a commercial license in connection with a Subscription or Consulting.
“Pre-Existing Materials” shall mean all Materials, which existed prior to the Effective Date of an Agreement on Consulting or which are thereafter created independently of such Agreement, other than Vaadin Non-Commercial Materials and Vaadin Commercial Materials.
“Customer Work Products” shall mean all Materials created by Vaadin for Customer through performance of the Consulting, other than Vaadin Non-Commercial Materials, Vaadin Commercial Materials and Pre-Existing Materials.
“Service Hours” are between 7am and 8pm GMT from Monday to Friday, except for the 1st of Jan, 6th of Jan, Good Friday, Easter Monday, 1st of May, Ascension day, Midsummer eve, 6th of Dec and 24–26 of Dec. GMT+1 Summer Time is used between the last Sunday of March and the last Sunday of October.
- Subscriptions AND INCLUDED PRODUCTS AND SERVICES
- General Provisions
Vaadin offers non-free Subscriptions that to varying degrees give access to Services and Vaadin Commercial Materials. The detailed content of each Subscription is set out in a subscription description form (“SubscriptionDescription Form”) delivered to the Customer when a new Subscription is created or an existing Subscription renewed. The terms and conditions related to Services and Vaadin Commercial Materials (that are included in the Subscription if so indicated on the Subscription Description Form) are detailed in the following Sections 3.2–3.10.
All Subscriptions may only be used by such users that have been named by the Customer and that have been connected to a Subscription (“Customer User” or “Customer Users”). The number of Customer Users included in a Subscription depends on the number of named users purchased by the Customer. The list of Customer Users can be changed at any time by the subscription administrator.
The Customer is responsible for ensuring that its Customer Users maintain the usernames, passwords and other identifiers necessary for the use of the service diligently and that they do not disclose them to third parties. The Customer must promptly notify Vaadin about any unauthorized use of such identifiers. The Customer shall ensure that its Customer Users comply with the Agreement and be responsible for its Customer Users’ use of the Service.
Both Vaadin Pro and Vaadin Prime Subscriptions come with a 30-day money-back guarantee. If the Customer for any reason wishes to cancel the Subscription within 30 days from the beginning of the first subscription term, the Customer can contact Vaadin for a refund of the subscription fees.
- Training Courses (if included in the Subscription)
The Customer is offered access to Vaadin’s recorded and/or live, instructor led online training courses during the term of the Subscription.
Customer Users can enroll to live training courses subject to availability of seats. Once Vaadin has processed the Customer User’s enrollment, Vaadin will send him/her a confirmation email.
Vaadin exclusively owns and retains all title, Intellectual Property Rights, and any other rights in and to Vaadin Materials used in connection with training courses. The Customer agrees not to copy or distribute Vaadin’s copyrighted material without Vaadin’s prior written consent and not to use recording equipment in Vaadin’s classes without Vaadin’s prior written consent.
- Vaadin Commercial Tools (if included in the Subscription)
The Customer is given access to existing and upcoming versions of Vaadin’s commercial components and tools as listed from time to time on the vaadin.com website. Vaadin grants the Customer a license to use the commercial Vaadin add-on tools and components for the duration of the Subscription in accordance with the applicable license terms set for each add-on tool and component.
The license to use the above-mentioned add-ons expires without a separate notice when the Subscription is terminated or expires, and the Customer may not continue to use the add-ons for development. The Customer may still distribute and deploy the components with software using the components.
- Expert Chat (if included in the Subscription)
The Customer is offered access to a chat service, where Vaadin’s expert team helps the Customer by answering technical questions. This Service allows the Customer to get advice regarding any issues related to Supported Software (defined under Section 3.5 below) through a chat service during the Service Hours. There is no limit on how much the Customer can use this Service. Only advice is provided as part of this Service. For example, implementation of software, UX design, hands-on sessions through screen sharing or corresponding, or training services are not provided as part of this Service.
- Expert on Demand (if included in the Subscription)
The Customer is provided with an on-demand software development and advisory Service, where Vaadin’s expert team helps the Customer with Vaadin’s applications. This Service is provided as ticket-based Consulting in accordance with this Section 3.5 and Section 4.1 below.
This Service may include a number of hours that are added into the time balance in the beginning of the subscription term or on a monthly basis or that are purchased separately. The Customer may submit service requests to the Service. The time used for resolving the service requests is deducted from the Customer’s time balance. The Subscription has a credit limit that allows resolution of service requests in case the time balance is zero or negative, up to the credit limit. The negative time balance will be invoiced monthly. At the end of the subscription term, depending on the Customer’s Subscription, the time balance may be rolled forward to the next subscription term automatically or the positive balance may be lost. When the Subscription is terminated, the remaining time balance is lost.
During the Service Hours, resolving the support request will be started as defined in the Subscription Description Form. If Vaadin exceeds the promised response time for this Service, the Customer will be compensated with one (1) free service hour that is added to the time balance.
If the estimated work effort for resolving a service request totals to more than four (4) hours, a confirmation is requested from the Customer before starting the work. If the estimated work effort is inadequate for completing the work, Vaadin is not obligated to continue working and will stop working on the service request when the estimated number of hours is reached, if the Customer does not authorize the continuation of the service request at their expense.
This Service covers, from the release of Vaadin platform version 10, all long-term support (“LTS”) versions for a period of five (5) years. Additionally, previous major versions of Vaadin platform are covered until one (1) month after the release of the next major version. All supported Vaadin products and technologies are released as Vaadin platform versions from the version 10, and individual product versions released between Vaadin platform major versions are not covered by this Service. For Vaadin products and technologies released before Vaadin platform version 10, this Service covers the two latest major versions of Vaadin Framework, Vaadin components, Vaadin Tools, Vaadin Pro Add-ons and stable status add-ons released by Vaadin for a period of five (5) years. Additionally, this Service covers critical security issues related to any major versions of the above-mentioned products that have been released within the last five (5) years. This Service does not cover pre-release versions, such as beta, alpha or release candidate, or component factory components. Vaadin products and technologies covered by this Service are referred to collectively as “Supported Software”.
- Warranty (if included in the Subscription)
This Service allows the Customer to request bugs in Supported Software to be fixed. There can be only one open warranty request at a time per Subscription. Vaadin reserves the right to choose, at its sole discretion, which warranty requests will be fixed.
The resolution of a Warranty request will be started within two (2) business days after receiving the request. If Vaadin exceeds the above defined promised response time for this Service, the Customer will be compensated with one (1) free service hour that is added to the Customer’s time balance.
- Talent Acquisition Assistance (if included in the Subscription)
This Service gives the Customer access to Vaadin’s talent acquisition assistance service. Vaadin will post the Customer’s job advertisement on the vaadin.com website and communicate it towards the Vaadin community regularly to aid the Customer attracting Vaadin developers seeking employment. Vaadin has the right to review and reject the job advertisements prior publishing. Customer job advertisements will be open 30 days unless otherwise agreed with the Customer.
- Vaadin mentor (if included in the Subscription)
This Service is provided as Consulting in accordance with Section 4.1 below.
- Indemnification (if included in the Subscription)
Vaadin shall indemnify, defend and hold harmless the Customer from and against any and all third-party claims and/or liabilities, including attorneys’ fees and costs, arising directly out of the use of Vaadin products by the Customer in compliance with the Agreement. The aforesaid claims include claims of misappropriation, infringement, and invalid licensing of copyrighted work. If any action or proceeding is brought against the Customer by reason of any of the foregoing matters, Vaadin shall upon written notice in English defend the same at Vaadin’s expense and the Customer shall cooperate with Vaadin in such defense. If in the reasonable opinion of Vaadin a Vaadin product infringes third-party Intellectual Property Rights or if such infringement has been confirmed in a trial, Vaadin shall and may at its own expense and discretion either (a) obtain the right to continue use of the Vaadin product for the Customer; (b) replace the Vaadin product with a product or service that complies with the Agreement and corresponds to the Vaadin product; or (c) modify the Vaadin product in order to eliminate the infringement in such a manner that the modified Vaadin product with the Agreement. If none of the above-mentioned alternatives is available to Vaadin on reasonable terms, the Customer shall, at the request of the supplier, stop using the Vaadin product and return it, and Vaadin shall refund the price paid by the Customer for the deliverable less the proportion of the price corresponding to the actual time of use. Vaadin shall not, however, be liable if the claim (a) is due to willful misconduct or gross negligence by the Customer, (b) is asserted by a group company of the Customer, (c) results from alteration of the Vaadin product by the Customer or from compliance with the Customer’s written instructions; (d) results from use of the Vaadin product in combination with any product or service not supplied by Vaadin; or (e) could have been avoided by the use of a released product or service that complies with the Agreement and corresponds with the deliverables and which product or service is offered for use to the Customer by Vaadin without separate charge. The aforesaid indemnity obligation of Vaadin shall, however, always be limited to an amount equal to three times the yearly Subscription fee, and Vaadin’s liability for indemnified claims shall be limited to this Section 3.9.
- Extended Maintenance for Vaadin (if included in the Subscription)
The extended maintenance for Vaadin Service extends the duration of the expert on demand Service (Section 3.5) and the warranty Service (Section 3.6) with respect to Supported Software by ten (10) additional years.
Any and all changes to the Supported Software as a result of the extended maintenance for Vaadin Service will be published under a commercial license and made available exclusively to Customers that have subscribed to the extended maintenance for Vaadin Service. The applicable commercial license, which governs the use of proprietary versions dated before the end of the Subscription term, remain valid also after the termination of the Subscription for the additional ten (10) year period.
The scope of the extended maintenance for Vaadin Service is described in more detail in the Subscription Description Form.
- General Provisions
- Delivery of Professional Services
The parties may agree upon the delivery of Consulting in an Agreement and/or a SOW. Unless otherwise agreed by the parties, Consulting is delivered by Vaadin to the Customer on a time-and-material basis. The standard working methods and practices of Vaadin shall be followed.
Vaadin warrants that the Consulting will be performed in the agreed manner, with due care and with the professional skills required for the task. This warranty shall be valid for thirty (30) days from performance of Consulting. If during such time period, the Customer reasonably determines that the Consulting has not been performed in accordance with the aforesaid, the Customer shall promptly notify Vaadin. If Vaadin determines that the Consulting was defective, then Vaadin will take prompt remedial action to re-perform any Consulting that fails to meet the limited warranty at its own cost and expense or refund to the Customer the fees paid for the non-conforming Consulting. THE FOREGOING STATES THE CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND VAADIN’S ENTIRE LIABILITY FOR ANY BREACH OF THE FOREGOING WARRANTY REGARDING CONSULTING.
If either party finds that a delay will occur or is likely, the party shall without delay inform the other party in writing of the delay and of the effects of the delay on the delivery time schedule.
Unless otherwise agreed, any indicated delivery times of Vaadin are approximate. Vaadin’s sole responsibility for delays is to use reasonable commercial efforts to meet the specified time of delivery.
If a not-to-exceed hourly limit is specified in the Agreement, Vaadin is not obligated to continue working and will stop working on the Consulting when such limit is reached, if the Customer does not authorize the continuation of the Consulting at their expense.
- Qualification and Replacement of Personnel
The Customer shall have a right to review and approve the qualifications of any Vaadin personnel assigned to perform the Consulting described in a SOW, and the Customer may require Vaadin to remove and/or replace any of such personnel at any point of time. If the Customer has selected named personnel to perform the Consulting, such personnel shall be named in a SOW.
- Sponsored Development
The parties may agree upon the delivery of Sponsored Development in an Agreement and/or a SOW. This Service is provided as Consulting in accordance with this Section 4. Intellectual Property Rights to Sponsored Development results are regulated by Section 8.3 below.
- Change Control
All changes to any SOW incorporated into the Agreement, including changes to the specifications and contents of the delivery and the possible effects of the changes to the time schedule, as well as any changes to the price and other terms and conditions of the SOW and of the Agreement shall be agreed in writing in order to be valid.
- Delivery of Professional Services
- Modifying the SUBSCRIPTION OR Service
Vaadin may change its Subscriptions and/or Services by adding, modifying or removing any features or functionalities. Vaadin may also stop providing parts of, or the whole of, the Subscription or a Service. Vaadin may also create new operating guidelines or limitations to the Subscription or a Service. Vaadin will notify the Customer of significant changes in advance. If the change significantly diminishes or impairs the Subscription or Service, the Customer may terminate the Subscription or Service and any pre-paid fees will be refunded in proportion to non-rendered Services or for the remaining subscription term. Vaadin, however, endeavors not to apply such changes that significantly diminishes or impairs the Service for the Customer during the ongoing subscription term or the ongoing term of the SOW.
- GENERAL RESPONSIBILITIES OF CUSTOMER
The Customer pays the applicable subscription and service fees in a timely manner. The Customer provides Vaadin free of charge with all permissions, instructions, information, documentation, access rights, resources and assistance that are reasonably necessary for Vaadin to deliver the Services. The Customer will adhere to the agreed processes and ways of working (e.g. online tools and communication systems) as applicable. The Customer maintains for its part and at its own cost the data communication connections, equipment, ICT environment and software necessary for the use of the Service, as reasonably informed by Vaadin from time to time.
The Customer is responsible for the correctness, completeness, suitability and non-infringement of any material and information provided and instructions issued to Vaadin as well as for the compliance thereof with the laws, regulations and orders of the authorities. The Customer shall ensure that the information and material and agreed use of the Services or included software do not violate any export control restrictions or international trade sanctions. The Customer shall ensure that Services and included software are used in accordance with applicable law and under relevant consents.
- Fees, INVOICING and Payment Terms
The applicable subscription fee is detailed in the online order or the Agreement.
The agreed subscription fee shall apply for the agreed subscription term. Vaadin shall be entitled to adjust the subscription fee at any time. The adjusted new subscription fee shall apply with respect to the Customer from the beginning of the next subscription term, provided that the Subscription is renewed and provided that Vaadin has given written notice of the adjusted prices to the Customer no less than thirty (30) days prior to the beginning of the new subscription term.
All cost and effort estimates given by Vaadin to the Customer are indicative by nature and do not affect the calculation of the fees. If not otherwise specified in the Agreement, the Services are provided on time-and-material basis. The fee is determined by multiplying the hourly rates set forth in the Agreement by the hours that Vaadin has worked on the Services.
The applicable prices and hourly rates are detailed in the Agreement and/or its appendices. If a price for a product or service has not been agreed, the price in the Seller’s price list effective on the date of order shall apply.
Vaadin shall be entitled to adjust its prices with thirty (30) days’ notice to the Customer.
Vaadin shall, if pre-approved by the Customer, be entitled to charge for customary and reasonable travel and accommodation costs as well as other travel costs relating to the Services. Traveling time shall be charged as 50% of the agreed hourly rates.
Vaadin shall, if requested by the Customer, be entitled to charge a 50% surplus for working days exceeding 8 hours per day for each hour exceeding the 8-hour limit. If no hourly rate is agreed in the Agreement, Vaadin’s current price list will be used.
- Invoicing and Payment Terms
Vaadin invoices Subscriptions in advance upon order or 30 days before renewal. Time-and-material based Services are invoiced for monthly in arrears.
Value added tax and sales tax are added to the fees in accordance with the then current regulations.
Payment terms are thirty (30) days net of the date of an invoice. Vaadin reserves the right to charge interest on any unpaid balances, at the rate of two percent (2%) per month.
- INTELLECTUAL PROPERTY RIGHTS AND USE RIGHTS
- Vaadin Materials
Vaadin exclusively owns and retains all title, Intellectual Property Rights, and any other rights in and to Vaadin Materials, including Vaadin Non-Commercial Materials, Vaadin Commercial Materials, Vaadin’s Pre-Existing Materials and Component Factory Results.
The Customer’s right to use Vaadin Non-Commercial Materials and/or Vaadin Commercial Materials is subject to the Customer separately obtaining a license to such Vaadin Non-Commercial Materials and/or Vaadin Commercial Materials and the Customer complying with separate license terms and conditions, as indicated by Vaadin. The Customer may use Vaadin’s Materials only for the purpose set out in the Agreement and the applicable license terms and conditions.
Unless otherwise agreed between the parties with respect to Vaadin’s Pre-Existing Materials, Vaadin grants to the Customer a perpetual, worldwide, non-exclusive, royalty-free, irrevocable, transferable license to use, make, reproduce, prepare derivative works of, publicly display and perform, transmit, sell, offer to sell, and distribute Vaadin’s Pre-Existing Materials or any derivative works of Vaadin’s Pre-Existing Materials that are used in the creation of Customer Work Products and are an inseparable part of the Customer Work Products. This license is limited to Vaadin’s Pre-Existing Materials only, as described above, and does not grant any rights to any Vaadin Non-Commercial Materials or Vaadin Commercial Materials.
- Customer Materials
The Customer exclusively owns and retains all title, Intellectual Property Rights, and any other rights in and to the Customer’s Pre-Existing Materials. Vaadin has the right to use the Customer’s Pre-Existing Materials only for the purposes of the Agreement.
The Customer exclusively owns and retains all rights to Customer Work Products. Vaadin has the right to use the Customer Work Products only for the purposes of the Agreement. For the avoidance of doubt, Customer Work Products never include Vaadin Non-Commercial Materials or Vaadin Commercial Materials.
- Sponsored Development Results
Vaadin exclusively owns and retains all title, Intellectual Property Rights and any other rights in and to any results from Sponsored Development (“Sponsored Development Results”). Vaadin grants to Customer a perpetual, worldwide, non-exclusive, royalty-free, irrevocable, transferable license to use, make, reproduce, prepare derivative works of, publicly display and perform, transmit, sell, offer to sell, and distribute Sponsored Development Results or any derivative works of Sponsored Development Results.
- Contributions to Vaadin Materials
The Customer irrevocably and perpetually assigns to Vaadin all of the Customer’s right, title and interest in and to any contribution related to Vaadin Non-Commercial Materials, Vaadin Commercial Materials, Vaadin’s Pre-Existing Rights or Component Factory Results, including without limitation software artefacts, modifications, bug fixes, bug reports, performance reports, documentation changes and other enhancements created during the performance of the Agreement, including without limitation all proprietary rights and Intellectual Property Rights recognized anywhere in the world, now or in the future, associated with the Customer’s contribution related to said Vaadin Materials. The Customer represents and warrants that it has the legal right to grant these rights to Vaadin.
The parties may on a case to case basis and in advance agree separately on more significant Customer contributions to Vaadin Materials.
- Content in Expert on Demand and Expert Chat
As regards content submitted to the expert on demand or expert chat Services, the Customer grants Vaadin a worldwide, fully paid up limited license to use and utilize such content for the purposes of improving and operating Vaadin’s Services. This license continues even if the Subscription ends and the Customer stops using Vaadin’s Services. The Customer represents and warrants that it has the legal right to grant these rights to Vaadin.
Vaadin grants the Customer a worldwide, royalty-free, irrevocable, non-exclusive license to duplicate, modify, distribute, sell, re-license and reuse the answers and advice to the requests that the Customer has sent to the expert on demand or expert chat Services. This license does not give the Customer any rights to any Intellectual Property Rights that are not created as part of the service request resolution process, including without limitation Vaadin Non-Commercial Materials, Vaadin Commercial Materials, Vaadin’s Pre-Existing Materials, or other software, products or documentation.
- Third-Party Components
All Intellectual Property Rights to third-party components are owned by third parties and exclusively governed by the terms issued by the respective third-party vendors. To the extent the use of third-party components has not been agreed upon in the Agreement, Vaadin will ask for the Customer’s written permission for using any third-party components in connection with providing the Services. The Customer agrees to procure all such licenses for third-party components necessary for the provision of the Services.
- Vaadin Trademarks
“Vaadin”, “}>”, “Fight for Simplicity” and “Thinking of U and I” are registered trademarks of Vaadin Ltd and may not be used without permission from Vaadin.
- Suspected Violations of Intellectual Property Rights
The Customer is encouraged to notify Vaadin if it suspects that somebody is violating Vaadin’s Intellectual Property Rights, by email to email@example.com or by filling Vaadin’s online contact form.
- Vaadin Materials
- Customer Data
The Customer acknowledges that it is solely responsible for protecting and preserving any and all information and data present on its computer systems or which may be otherwise affected by the performance of the Services. Vaadin shall not be responsible for the loss of or damage to any such information, including where such loss or damage results from failure of the Customer to properly back-up its data prior to the performance of the Services. The Customer shall be responsible for taking back-up copies of its data and data files and for verifying the functionality of such back-up copies.
- PROCESSING OF PERSONAL DATA
If Vaadin processes personal data on behalf of the Customer, the parties shall enter into a separate data processing agreement.
Both Vaadin and the Customer agree that the Agreement and all information and Materials related to the Agreement constitutes “Confidential Information”. Confidential Information further includes information either marked as confidential or information reasonably known or understood by the receiving party as being treated by the disclosing party as confidential. Confidential Information shall not include information: (i) that is now or becomes generally available to the public through no fault or breach of the receiving party; (ii) that the receiving party can document was already known to it prior to disclosure by the disclosing party; (iii) that is independently developed by the receiving party without the use of any of the other party’s Confidential Information; and (iv) that the receiving party rightfully obtains from a third party who has the right to transfer or disclose it.
Each party agrees to keep the other party’s Confidential Information confidential, not to use such information except as authorized by the disclosing party, and to accord to such information the same safeguards and protections which it accords to its own confidential business or technical information. If the receiving party is subpoenaed or ordered by any court or governmental agency to disclose the other party's Confidential Information, it will provide prompt written notice to the other party so as to allow such party to seek a protective order or confidential treatment for such information.
Both parties may disclose Confidential Information to their personnel that have a need to know such Confidential Information for performing the duties required by the Agreement with the provision that such personnel is bound by confidentiality obligations herein.
- Use of Name
Vaadin may use the Customer’s name and logo in its marketing collateral, websites, and promotional materials to identify the Customer as a customer of Vaadin.
Vaadin may subcontract the delivery of its Services wholly or partially, however, such subcontractors must agree to be bound by the confidentiality provisions of the Agreement. Vaadin may use resources from any parent, affiliated or related companies to perform its Services.
Vaadin is responsible for all Vaadin personnel and for the payment of their compensation, including, if applicable, withholding of income taxes and the payment and withholding of social security and other payroll taxes, unemployment insurance, workers’ compensation insurance payments and disability benefits.
During the Term of the Agreement and for a period of one (1) year after termination of the Agreement, both parties hereby agree that they shall not, directly or indirectly, solicit, discuss employment or consultancy with, or hire any employee or consultant of the other party, including all affiliates, related and group companies and subcontractors. If either party breaches this Section, the breaching party shall, on demand, pay to the other party 200 000 euros according to the payment terms set forth in this Agreement. This amount represents an agreement between the parties approximating the significant damage likely to result from breach of this Section, and is not to be interpreted as a penalty or punishment therefor.
Customer acknowledges and agrees that Vaadin may, without limitation, provide Services for or grant licenses to other persons, firms, corporations, or other entities, including entities that compete with the Customer, on any terms Vaadin deems appropriate.
- Term and Termination
A Subscription is purchased for a subscription term chosen at the time of purchase. At the end of the subscription term, the Subscription is automatically renewed for the period length corresponding to the length of the original subscription term. The Customer will be charged with the same payment method as with the most recent Subscription. The Customer can terminate any Subscription within the vaadin.com service or by contacting the Customer’s contact person at Vaadin at any time.
An Agreement on Consulting shall commence as of the Effective Date and remain in effect until further notice or for any fixed term agreed by the parties (“Term”). During the Term of the Agreement, each SOW shall remain in effect until the Services have been delivered to the Customer or as otherwise agreed by the Parties in each SOW. The termination of a SOW shall not cause the termination of any other SOW or of the Agreement.
Either party may terminate the Agreement or any SOW for any reason or no reason by giving 30 days’ written notice to the other party.
- General Provisions
Vaadin may stop providing its Service or terminate the Agreement and/or all SOWs immediately upon written notice of termination to the Customer if the Customer breaches any obligation under the Agreement or ceases doing business in the ordinary course. Vaadin may also stop providing Services to the Customer if Vaadin is investigating suspected misuse.
If the Customer terminates the Agreement, no pre-paid subscription or service fees will be returned. If Vaadin terminates the Agreement prematurely, excluding termination due to Customer’s breach of any obligations under the Agreement, pre-paid Service fees will be refunded in proportion to non-rendered Services. All accrued Service fees shall be invoiced and paid upon termination of the Agreement within 45 days.
Sections “Intellectual Property Rights and Use Rights”, “Confidentiality”, “Use of Name”, “Non-Solicitation”, “Warranty Disclaimer and Limitation of Liability” and “Governing Law and Venue” of the Agreement will survive the completion, expiration, termination or cancellation of the Agreement. In addition, rights and obligations which by their nature should survive or which the Agreement expressly states will survive will remain in full force and effect following termination or expiration of the Agreement. The parties will cooperate with each other during and following termination or expiration of the Agreement to safeguard subject safety and continuity of treatment, and to comply with all applicable laws, rules, and regulations.
- Warranty Disclaimer and Limitation of Liability
EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE OR ANY WARRANTY THAT ANY SERVICE OR DELIVERABLE WILL MEET ALL NEEDS AND EXPECTATIONS OR BE ERROR-FREE.
NEITHER PARTY TO THE AGREEMENT SHALL BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO BUSINESS INTERRUPTION, LOSS OF DATA, LOSS OF PROFITS, LOSS OF REVENUES, LOSS OF BUSINESS OPPORTUNITIES AND LOSS OF GOODWILL, OR DAMAGES CAUSED TO THIRD PARTIES OR BY THE PURCHASE OF REPLACEMENT PRODUCTS OR SERVICES, EVEN IF THEY HAVE BEEN ADVISED OF OR SHOULD HAVE FORESEEN SUCH DAMAGES. TO THE FULLEST EXTENT PERMITTED BY LAW, THE TOTAL AGGREGATE LIABILITY OF A PARTY TOWARDS THE OTHER PARTY IN RELATION TO THE AGREEMENT AND/OR A SOW IS LIMITED TO A MAXIMUM OF 50 % OF THE PRICE PAYABLE FOR THE AGREED SERVICES OR DELIVERABLES DIRECTLY RELATED TO THE CAUSE OF ACTION ASSERTED UNDER THE RELEVANT AGREEMENT OR SOW. IN CASE OF CONTINUOUS SERVICES, THE AFOREMENTIONED 50 % LIMIT IS CALCULATED FROM THE MONTHLY SERVICE PRICE UNDER THE RELEVANT AGREEMENT OR SOW MULTIPLIED BY TWELVE (12). THIS LIMITATION OF LIABILITY SHALL APPLY REGARDLESS OF THE CAUSE OF ACTION OR LEGAL THEORY PLED OR ASSERTED, INCLUDING NEGLIGENCE, BREACH OF CONTRACT AND WARRANTY.
- Statute of Limitation
The parties agree that any action in relation to an alleged breach of the Agreement shall be commenced within one year of the date of the breach, without regard to the date the breach is discovered. Any action not brought within that one-year time period shall be barred, without regard to any other limitations period set forth by law or statute.
If at any time a Customer User would like to discuss with Vaadin how the Subscriptions or Vaadin’s services can be improved or if he/she has a complaintIf at any time a Customer User would like to discuss with Vaadin how the Subscriptions or Vaadin’s services can be improved or if he/she has a complaint about them, he/she is invited to contact the Vaadin contact person identified in the Agreement. Vaadin will investigate any complaints promptly and do what it can to resolve the difficulties.
- Governing Law and JURISDICTION
- For customers domiciled in the United States
If the Customer’s domicile is in the United States, the Agreement shall be governed by and construed in accordance with the substantive laws of the State of California. The Agreement shall be construed and enforced without regard to the United Nations Convention on the International Sale of Goods (CISG). Any dispute or controversy or claim arising out of or relating to this Agreement, or the breach, termination or validity thereof, shall be resolved by final and binding arbitration in accordance with the International Chamber of Commerce Rules of Arbitration, by one (1) arbitrator appointed according to the aforementioned rules. The arbitration shall be conducted in the English language in San Francisco, California, United States.
- For customers domiciled outside the United States
If the Customer’s domicile is outside the United States, the Agreement shall be governed by and construed in accordance with the substantive laws of Finland, excluding its choice of law provisions and the United Nations Convention on Contracts for the International Sale of Goods (CISG). Any dispute, controversy or claim arising out of or relating to the Agreement, or the breach, termination or validity thereof, shall be finally settled by arbitration in accordance with the Arbitration Rules of the Finland Chamber of Commerce. The number of arbitrators shall be one. The seat of arbitration shall be Turku, Finland. The language of the arbitration shall be English.
- For customers domiciled in the United States
- Waiver of Jury Trial
UNLESS OTHERWISE EXPRESSLY STATED IN THE AGREEMENT OR ANY SOW INCORPORATED HEREIN, THE PARTIES WAIVE ANY RIGHT TO A JURY TRIAL IN ANY PROCEEDING ARISING OUT OF OR RELATED TO THE AGREEMENT OR THE SERVICES OR DELIVERABLES PROVIDED HEREUNDER.
- Entire Agreement
The Agreement, including within limitation the main agreement referring to it, any applicable SOW(s), these Commercial Terms and any other appendices, comprise the entire agreement between the Customer and Vaadin and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter of the Agreement.
- 24.2 Order of Precedence
In case of discrepancies between the documents constituting part of the Agreement, the following order of precedence shall apply:
- An Agreement document signed by both parties
- The applicable license terms set for a Vaadin software product
- A SOW document signed by both parties
- These Commercial Terms
- The Subscription Description Form
- Other appendices of the Agreement or a SOW (the appendices are applied as mutually supplementary)
Notices and communications shall be in writing and deemed served when received by hand delivery, certified mail (return receipt requested), by recognized overnight courier or by e-mail that is replied to by a contact person of the other party.
The official text of these Commercial Terms or any notices given or accounts or statements required hereby shall be in English.
If any provision of the Agreement shall be held invalid, illegal or unenforceable, the remaining provisions shall not be affected or impaired.
- No Waiver
The failure of a party to exercise any right or privilege arising out of the Agreement shall not preclude it from requiring that the other party fully perform its obligations and shall not preclude it from exercising such a right or privilege at any time.
The Agreement shall not be assigned or transferred by either party without the prior written consent of the other party, except in connection with a merger, consolidation, or similar transaction. Vaadin may assign its rights to amounts payable to it under the Agreement.
- Force Majeure
Except for the obligation to pay sums due hereunder, neither party shall be responsible for defaults, delays or failures in performance of the Agreement (including, without limitation, war or insurrection, earthquake, flood or other similar natural catastrophe, pandemics, interruptions in general traffic, data communication or supply of electricity, technical malfunctions, denial-of-service attacks, computer errors, corruption or loss of information, import or export embargo, strike, lockout, boycott or other similar industrial action) resulting from acts, events, circumstances or causes beyond its control, including also a force majeure encountered by a subcontractor of a party.
- Changes to these Commercial Terms
Vaadin may change these Commercial Terms at any time, upon 30 days prior written notice. The changed Commercial Terms shall apply to any new Agreements entered into after the effective date of the change. As regards Subscriptions, the changed Commercial Terms shall apply from the beginning of a renewed subscription term, provided that Vaadin has notified the Customer of the changed Commercial Terms no less than 30 days prior to the renewal of the Subscription. If the Customer does not agree to the amendment, it may terminate the affected Agreement by providing written notice to Vaadin prior to the effective date of the change (unless Vaadin decides to cancel the respective amendment before such effective date, in which case no termination right exists). Otherwise, the Agreement may be modified only by an express written agreement executed by authorized representatives of each party.
- Entire Agreement