Terms Of Service
APPLICABILITY AND PARTIES
DESCRIPTION OF THE SERVICE
This agreement concerns acquisition of user rights to Eduten Playground, a cloud service developed by Eduten Oy, a company existing under the laws of Finland, with its registered address at Vyyhtikuja 6, 20900 Turku, Finland (“Eduten”). Eduten owns the intellectual property rights relating to Eduten Playground, but is not a party to this Agreement. The main features on the Effective Date of this agreement include:
● A large number of gamified mathematics exercises in English
● A comprehensive learning analytics interface for the teacher
● Automatic misconception identification
● Usable with a compatible web browser with a computer or a tablet
● Requires a network connection
Eduten with GOI will perform a kickoff training for a customer’s teachers. The kickoff training is composed of 2 sessions on-line, or on the customer’s premises.
Any additional consultancy, training or other services relating to the use and implementation of the service in the customer’s organization require a separate consultancy agreement. GOI shall have no other obligations than those specifically defined in this section.
GOI’s responsibility to provide the service. GOI shall provide the customer with the service within the Territory for the purpose of the customer’s teachers and students use the system in classrooms and for homework. The software, services, technology as well as any related documentation, instructions will be provided to the customer, at GOI’s sole discretion, in such form, scope and quantity, as GOI would normally provide to another end-customer in similar situation for similar purposes. The services may be temporarily limited, interrupted or curtailed due to maintenance, repair, modifications, upgrades or relocation. GOI aims to notify the customer in a manner GOI normally notifies its resellers and end-customers of scheduled and unscheduled network outages that may cause more than minor effect to the use of the service.
Customer responsibilities. The customer shall (i) be responsible for its own users’ compliance with GOI and Eduten’s policies and procedures applicable to the services; (ii) be responsible for the accuracy, quality and legality of the data entered by the customer, its users into the service and of the means by which it was acquired. The customer shall not: (a) make the services available to anyone other than its users with whom an appropriate subscription contract has been concluded; (b) attempt to gain unauthorized access to the services or their related systems or networks.
Changes to the service. GOI shall be entitled to change the services at any time during the term of the Agreement (incl. change/add/remove features, launch new versions, impose use restrictions). It aims to do so in a manner that will not materially reduce the capabilities provided by the service. Significant changes may be notified in advance in a manner GOI normally notifies its resellers and end-customers (e.g. email, notification in the service, on website).
Restrictions. The customer shall not (and shall not authorize any third party to): (a) modify, translate, reverse engineer, decompile, disassemble, or create derivative works based on the service except to the extent that enforcement of the foregoing restriction is prohibited by applicable law; (b) circumvent any user limits or other timing, use or functionality restrictions built into the services; (c) remove any proprietary notices, labels, or marks from the service (except to the extent the customer is so permitted to for the purposes of re-branding the services); (d) frame or mirror any content forming part of the services; or (e) access the services in order to (i) build a competitive product or service, or (ii) copy any ideas, features, contents, exercises, functions or graphics of the services.
PROFESSIONAL SERVICES AND SUPPORT
Eduten and GOI provide user support as responses to customer’s support requests submitted via phone or email to the designated contact person. Support requests may be submitted via email at any time, and via telephone during customer service hours. Eduten and GOI will use commercially reasonable efforts to provide the responses without any specific target times.
GOI’s contact details for contacts, complaints, customer service and support:
GOInternational Finland Oy
Business ID: 2698108-9
Email: [email protected]
Tel: +358 50 3399776
Customer service hours: Monday to Friday, 10 AM to 4 PM EET/EEST (excluding public holidays)
PERSONAL DATA AND PRIVACY
GOI and Eduten as data controllers. GOI and Eduten may be considered as data controllers especially regarding the personal data relating to customer contacts, customer’s admin users and other such personal data, which either GOI or Eduten needs for offering the Eduten Playground software platform and sending customer and user notifications as well as marketing messages.
A customer as a data controller. The customer may be considered a data controller for instance relating to personal data it enters into or manages in the Eduten Playground.
GOI acting as the customer’s data processor. To the extent that the customer is considered a data controller and GOI its data processor (and Eduten GOI’s sub-processor, as the case may be) in the meaning as given in EU General Data Protection Regulation, the Data Processing Terms shall also be applied and are considered an integral part of this Agreement.
Compliance with privacy laws. In the role of a data controller, each party agrees to comply with EU regulations (including the EU General Data Protection Regulation) as well as any local national privacy laws applicable to its operation, especially with regards to personal data relating to end-customers and end-users. Specifically, each party agrees to ensure that (1) data subjects are informed about privacy practices with adequate and easily accessible privacy policies, (2) it always has a legal basis for processing personal data, (3) personal data is protected and stored with adequate measures, (4) adequate safeguards and contracts are concluded when using data processors or transferring data outside the EU, and (5) if required, consent is acquired from the data subjects prior to processing their personal data.
A customer (a) shall not disclose to anyone any confidential information received from or related to GOI or Eduten or its end-users and marked as confidential or which should be understood to be confidential, and (b) may not use such material or information for any other purpose than furthering the objectives set forth in the Agreement.
The confidentiality obligations shall, however, not be applied to the extent that the customer can prove that any of that material and information: (a) was in customer’s possession without an obligation of confidentiality prior to receipt from GOI or Eduten; (b) is at the time of disclosure, or subsequently becomes, generally available to the public through no breach of this Agreement by the customer or; (c) is lawfully obtained by the customer from a third party without an obligation of confidentiality, provided that third party is not, to the customer’s best knowledge, in breach of any obligation of confidentiality to GOI or Eduten relating to that information; (d) is developed by the customer independent of any confidential information; or (e) which the customer shall disclose pursuant to a law, decree, or other order issued by the authorities or judicial order.
The customer shall promptly cease using confidential material and information received from GOI or Eduten, when the customer no longer needs the material or information in question for the purpose stated in this Agreement. At the request of GOI or Eduten, the customer shall return or destroy all confidential information and materials in question.
Should the customer disclose any part of the confidential information or use it for any other purposes than stated in the Agreement and the provisions hereof, then the customer shall pay to GOI by way of liquidated damages and not as a penalty, an amount of EUR 100 000, which shall be considered a reasonable estimation of the damages incurred by GOI. The liquidated damages shall not constitute a maximum amount of damages recoverable by GOI, wherefore GOI shall be entitled to full compensation for all of its actual damages and losses as a result of such unauthorized use, including but not limited to any loss of sales.
The terms in this Section shall survive seven (7) years after the termination or expiration of this Agreement.
GOI provides the Eduten software, services and any associated documentation and other deliverables on an “AS IS” and “AS AVAILABLE” basis. While GOI aims to ensure the software and services conform to the specifications given by it, GOI makes no warranty that the Eduten software and services will meet the specific requirements of a customer, or that Eduten’s software, services and technology will be completely uninterrupted, accurate or error-free, nor does GOI make any warranty as to the results that may be obtained from the use of Eduten’s software, services and technology. GOI warrants that in the event that there are defects or errors in the operation of Eduten software or services, it will use reasonable effort to investigate the error or defect, report its findings to the customer, and, at its sole discretion, to possibly remedy the error or defect. To the extent that correcting the error or defect would require product development effort from Eduten, the parties will in good faith negotiate whether such development shall be performed and the terms of the development work, including each party’s responsibilities, estimated time of completion and cost of development to the customer. This is GOI’s sole obligation and the customer’s sole remedy in the event of any defect, interruption or error in Eduten’s software, services and associated materials and deliverables.
THERE ARE NO OTHER WARRANTIES THAN WHAT IS STATED IN THIS SECTION AND GOI SPECIFICALLY DISCLAIMS ALL WARRANTIES EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE EDUTEN SOFTWARE, SERVICES AND TECHNOLOGY OR DEFECTS IN THE MEDIA AND DOCUMENTATION, OPERATION OF THE EDUTEN SOFTWARE, SERVICES AND TECHNOLOGY, AND ANY PARTICULAR APPLICATION OR USE OF THE EDUTEN SOFTWARE, SERVICES AND TECHNOLOGY. TO THE EXTENT PERMITTED BY MANDATORY PROVISIONS OF APPLICABLE LAW, EDUTEN GRANTS NO OTHER WARRANTIES WHATSOEVER FOR ITS SOFTWARE, SERVICES AND TECHNOLOGY THAN THE WARRANTY SET OUT HEREIN, WHICH WARRANTY THUS SETS FORTH THE WARRANTY GIVEN BY EDUTEN IN ITS ENTIRETY.
INTERLLECTUAL PROPERTY RIGHT
Any and all rights, titles, and intellectual property rights in and to Eduten’s software, contents, services and related documentation, know-how and trade secrets (incl. customer-specific modifications, bug fixes, new releases and versions and/or modifications developed based on a customer’s feedback to the software or services), whether developed prior to or during the term of the Agreement, shall be solely and exclusively owned by Eduten, or its licensors, as the case may be.
The customer shall not remove or alter Eduten’s signs, trademarks, labels, tags, notices, names or any other identifying marks, symbols or legends attached to the software, services or documentation.
TERM AND TERMINATION
Term of End-User Subscriptions. A subscription is purchased for a subscription period that starts on the Effective Date / when the kickoff training has been completed. At the end of the subscription period, the subscription is automatically renewed for a period corresponding to the length of the original subscription period. GOI will invoice the subscription fee at the beginning of each subscription period. The per-unit pricing during any such renewal term shall be the same as that during the prior term unless GOI has given the customer written notice of a pricing increase at least 30 days before the end of such prior term, in which case the pricing increase shall be effective upon renewal and thereafter.
The subscription can be terminated by a written notification by a party to the other party, at least 30 days before the end of the subscription period. If the subscription is terminated, no service fees will be returned, and all accrued and unpaid service fees will be charged.
Earlier Termination. GOI is entitled to terminate the Agreement with immediate effect by giving written notice to the customer, if:
a) The customer becomes insolvent, goes bankrupt or a receiver or trustee is appointed for assets of the party or the party ceases or threatens to cease to carry on business; b) in the event of a change in the ownership or legal structure of the customer; c) in the event that the Customer breaches a term of the Agreement that is of particular importance; or d) as otherwise specifically provided in the Agreement.
Effects of Termination. Upon termination or expiration of the Agreement for any reason, the customer shall, among other things:
a) cease to make any use of the Eduten’s trademarks, trade names, logos, materials or
any other Eduten’s intellectual property rights or confidential information; b) stop further use of Eduten’s software and services;
How Termination Affects End-User Subscriptions. If this Agreement is not terminated for a breach by the customer and if each of the parties is amenable to such an arrangement, then for any end-users at the customer’s organization, GOI will continue to provide or have available the services for such end- customers for the remainder of their then-current subscription period (as of the effective date of termination of expiration of the Agreement) subject to payment of the applicable fees.
APPLICABLE LAW AND DISPUTE RESOLUTION
Governing law. The Agreement is governed by the substantive laws of Finland, without regard to its conflict of law rules.
Dispute resolution. Any litigation or dispute arising between the Parties under the Agreement, will be settled by amicable settlement. Failing amicable settlement within thirty (30) days of the dispute being referred to the settlement, the dispute will be finally settled by arbitration in accordance with the Arbitration Rules of the Finnish Central Chamber of Commerce by one (1) sole arbitrator appointed in accordance with those Rules. The arbitration shall be held in Helsinki, Finland and the arbitration proceedings shall be conducted in the English language. The Parties agree to keep confidential all information, documents and material relating to the arbitral proceedings as well as the arbitration award. GOI shall, however, have the right to bring up any claim, related to an Agreement and based on a due receivable from Paragon, in the district court where the customer is domiciled or in any other district court in the customer’s jurisdiction.
LIMITATION OF LIABILITY
The liability of GOI to the customer in respect of claims for loss, damage or expense of any nature (whether in contract, tort (including negligence), warranty or otherwise) shall in no circumstances exceed a total cumulative sum of EUR 20 000. Under no circumstances shall GOI be responsible to the customer for any indirect, consequential, special punitive or incidental loss or damage (including without limitation damage for third parties and loss of profit and loss of production, liquidated damages, loss of production) arising out of or in connection with the Agreement
Audit rights. GOI is entitled to audit itself or have an independent auditor to audit Distributor’s books and records for ensuring that the customer complies with the terms of this Agreement, especially relating to such information that GOI requires for invoicing correctly its fees from the customer (e.g. concluded number of users). The customer is obligated to co-operate with such an audit, so that GOI has access to all necessary information and records.
Force majeure. GOI shall not be deemed to be in breach of the Agreement, or otherwise be liable to the customer, for any failure to perform, or any delay in performance, caused by any supervening unforeseeable circumstances whatsoever beyond the control of GOI. This term and condition shall apply to delays caused by sub-contractors if caused by any circumstances referred to in this paragraph.
Notices. Any notice required to be given hereunder shall be in writing and deemed to have been sufficiently given, (i) when delivered in person; (ii) on the third (3) business day after mailing by registered or certified mail, postage prepaid; or (iii) on the next business day after emailing the notice to the addresses specified earlier. GOI or the customer may, by notice to the other, change the addresses and names given above.
Entire agreement; written modifications. The Agreement represents the entire agreement between the parties hereto relating to the subject matter hereof. All previous agreements and/or arrangements, if any, relating to the subject matter are superseded. No amendments, changes or revision of the Agreement, in whole or in part, shall have any force or effect unless set forth in writing and signed by authorized representatives of both parties.
Severability. In the event that any of these terms, conditions or provisions shall be determined invalid, unlawful or unenforceable to any extent such term, condition or provision shall be rewritten in a form that follows the intent of the original terms as closely as possible. If the parties cannot agree on the issue, the remaining terms, conditions and provisions shall remain valid and the Agreement shall be interpreted according to the intent of the original terms.
Survival of terms. The terms and conditions of the Agreement regarding warranties, indemnity, limitation of liability, rights to payment of outstanding debts, confidentiality, ownership of intellectual property rights, applicable law and dispute resolution as well as all other terms and conditions which by their nature and purpose are intended to survive termination, shall survive any termination or expiration of the Agreement.
No transfer or assignment. The parties do not have the right to transfer the Agreement or rights or obligations related to it, not entirely nor even partly, to a third party if not expressly agreed by the parties in writing. However, GOI has the right to transfer the Agreement as well as rights and obligations related to it in connection with a merger, acquisition or business sale.