Vaadin Terms of Professional Services
Updated October 16, 2019, version 17
If at any time you would like to discuss with us how the Services can be improved or if you have a complaint about them, you are invited to contact your Vaadin contact person identified in the Agreement. If your problem is not resolved, you should not hesitate to contact directly our CEO Joonas Lehtinen, email@example.com or +1-408-886-0554. We will investigate any complaints promptly and do what we can do to resolve the difficulties.
Scope of Application
These terms and conditions shall be applied to the sale, licensing and other assignment of rights of use of information technology products and the supply of information technology services, which the Customer desires to obtain from Vaadin.
The following definitions apply to these terms and conditions:
"Agreement" shall mean any agreement referring to these terms.
"Effective Date" shall mean the date when all parties of the Agreement have signed the Agreement.
"Vaadin" shall mean the Vaadin company who has executed the Agreement.
"Customer" shall mean the customer who has executed the Agreement.
"Service" or "Services" shall mean any services defined in the Agreement or SOW referring to these terms, supplied by Vaadin to Customer.
"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 Product Materials" shall mean all Materials related to products owned by Vaadin including without limitation Vaadin Platform, Vaadin Framework, Vaadin Components, Vaadin Plug-in for Eclipse, Vaadin Multiplatform runtime, Vaadin Designer, Vaadin TestBench, Vaadin Charts, Vaadin Spreadsheet and the Book of Vaadin.
"Pre-Existing Materials" shall mean all Materials, which existed prior to the Effective Date of the Agreement, other than Vaadin Product Materials.
"Customer Work Products" shall mean all Materials created by Vaadin for Customer through performance of the Services, other than Vaadin Product Materials and Pre-Existing Materials.
Content in the Service
Customer exclusively owns and retains all rights to Customer Work Products.
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 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 Customer Work Products. This license is limited to the Vaadin’s Pre-Existing Materials only, as described above, and does not grant any rights to any Vaadin’s Product Materials.
Vaadin exclusively owns and retains all title, intellectual property, and any other rights in and to Vaadin’s Pre-Existing Materials (other than as provided in the foregoing non-exclusive license grant) and Vaadin’s Product Materials. Customer exclusively owns and retains all title, intellectual property, and any other rights in and to Customer's Pre-Existing Materials.
Customer hereby irrevocably assigns to Vaadin all of Customer's right, title and interest in and to any contribution related to Vaadin Product Materials including without limitation modifications, bug fixes, bug reports, performance reports, documentation changes and other enhancements created during the performance of the Agreement including without limitation all copyrights, copyright applications, copyright registrations, trademarks (whether or not registered), trademark applications, inventions (whether or not patented), patent applications, and patents, if any, and all other intellectual property and proprietary rights recognized anywhere in the world, now or in the future, associated with the Customer's contribution related to Vaadin Product Materials.
Vaadin will always ask for Customer's written permission for using any third party components in connection with using Vaadin Product Materials to provide the Services, which may bind the Customer to any license terms associated with such third party components and not mentioned in this Agreement. Customer agrees to procure all such licenses for third party components necessary for provision of Services.
Both Vaadin and Customer agrees 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 this Agreement with the provision that such personnel is bound by confidentiality obligations herein.
Term and Termination
The Agreement shall commence as of the Effective Date and remain in effect until further notice ("Term"). During the Term of this 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 a one (1) month written notice to the other Party. Vaadin may terminate the Agreement and all SOWs immediately upon written notice of termination to Customer if the Customer breaches any obligation under this Agreement or ceases doing business in the ordinary course.
If Customer terminates the Agreement, no pre-paid service fees will be returned. If Vaadin terminates the Agreement, excluding termination due to Customer's breach of any obligations under this 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.
Each Party shall appoint a Project Manager for each SOW. The Project Manager shall follow and supervise the implementation of the Agreement and to inform its own organization and the other Party of matters related to the implementation of the Agreement.
Qualification and Replacement of Personnel
Customer shall have a right to review and approve the qualifications of any Vaadin personnel assigned to perform the Services 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 Services, such personnel shall be named in a SOW.
All changes to any SOW incorporated into this 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 this Agreement shall be agreed in writing in order to be valid.
Fees and Payment Terms
Invoicing of the Services is done monthly. 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.
Value added tax and sales tax shall be added to the fees in accordance with the then current regulations.
If not otherwise specified in the Agreement or applicable SOW, the Services are provided on time-and-material basis. The fee is determined by multiplying the hourly rates set forth in the applicable SOW or Agreement by the hours that Vaadin has worked on the Services. If a not-to-exceed limit is specified in the applicable SOW or Agreement, Vaadin is not obligated to continue working and will stop working on the Services when such limit is reached, if the Customer does not authorize the continuation of the Services at their expense. All cost and effort estimates are indicative by nature and do not affect the calculation of the fees.
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.
Prices agreed in any SOW will be fixed during the execution of the SOW. Vaadin shall be entitled to adjust the prices set forth in the SOW incorporated into this Agreement with sixty (60) days notice to Customer.
Acceptance of the Service
Customer shall without undue delay give its acceptance or observations to Vaadin’s written notice or report regarding the progress of the Service and to the results of the Service. If the Customer does not make a written remark within thirty (30) days from receipt of the notice or final report, the work included in the notice or report shall be deemed as accepted.
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.
Vaadin may subcontract the Services upon notice to Customer provided, however, such subcontractor 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 the Services.
Use of Name
Vaadin may use Customer's name and logo in its marketing collateral, websites, and promotional materials to identify Customer as a customer of Vaadin.
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 sub-contractors. 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 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 Customer to properly back-up its data prior to the performance of the Services. 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.
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.
NEITHER PARTY TO THIS AGREEMENT SHALL BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF DATA, BUSINESS INTERRUPTION, OR LOSS OF PROFITS, ARISING OUT OF THE USE OF OR THE INABILITY TO USE THE LICENSED MATERIALS, EVEN IF THEY HAVE BEEN ADVISED OF OR SHOULD HAVE FORESEEN SUCH DAMAGES.
Waiver of Jury Trial
UNLESS OTHERWISE EXPRESSLY STATED IN THIS 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.
Statute of Limitation
The parties agree that any action in relation to an alleged breach of this 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.
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 a contact person of the other Party.
Severability and Modification
If any provision of the Agreement shall be held invalid, illegal or unenforceable, the remaining provisions shall not be affected or impaired. The Agreement may be modified only by an express written agreement executed by authorized representatives of each Party.
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.
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, technical malfunctions, telecommunication or Internet outages or problems, computer errors, or corruption or loss of information) resulting from acts, events, circumstances or causes beyond its control, including also a force majeure encountered by a subcontractor of a Party.
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.
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 Customer, on any terms Vaadin deems appropriate.
Sections "Grant of License and Intellectual Property Ownership", "Confidentiality", "Use of Name" and "Non-Solicitation" of this Agreement will survive the completion, expiration, termination or cancellation of this Agreement.
Rights and obligations which by their nature should survive or which this Agreement expressly states will survive will remain in full force and effect following termination or expiration of this Agreement. The parties will cooperate with each other during and following termination or expiration of this Agreement to safeguard subject safety and continuity of treatment, and to comply with all applicable laws, rules, and regulations.
Governing Law and Venue
When other than Services are delivered as part of the Agreement, the following applies and overrides Governing Law and Venue provisions of the Agreement:
- all matters arising out of or in connection with CVAL License Agreement shall be interpreted, construed and governed exclusively in accordance with the laws stated in the Governing Law section of CVAL License Agreement without reference to its choice of law rules;
- all matters arising out of or in connection with Terms of Online Service shall be interpreted, construed and governed exclusively in accordance with the laws of Finland without reference to its choice of law rules;
- all matters arising out of or in connection with Vaadin Terms and Conditions for Training Courses shall be interpreted, construed and governed exclusively in accordance with the laws of Finland without reference to its choice of law rules.
All claims arising out of or related to the Agreement or the Services will be exclusively litigated in the federal or district courts in the state and/or country of the governing law.
This Agreement, together with the main agreement referring to it and any applicable SOW(s) incorporated herein, comprises the entire agreement between Customer and Vaadin and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the Parties regarding the subject matter contained herein.