Terms of Service

These Terms of Service (“Terms”) govern the subscription, access, and use of Theymes’ applications (“Service(s)”) provided by Theymes Oy (Business ID: 3369440-8) (“Theymes”). The latest version of these Terms is also available on Theymes’ website.

By executing the Service Agreement or a corresponding contractual document (hereinafter “Agreement”) that references these Terms or by clicking a box indicating acceptance, or by otherwise taking the Service into use, the customer organization will become contractually bound by these Terms. You hereby warrant to have the required authority to enter into a binding agreement by accepting these Terms on behalf of the Customer.

Each party (the Customer as indicated in Agreement and Theymes) is hereinafter individually referred to as the “Party” and together as the “Parties.”

Please note that Theymes may in certain cases also provide the Customer with custom services or functionalities, which may be ordered separately, or which may be indicated separately in the Agreement. These Terms are, however, only applicable to the access and use of Theymes’ SaaS-based Services as well as any services directly related thereof.

Agreement and Order of Precedence

These Terms, along with the Agreement and the other appendices contained therein form the full contractual framework between the Parties.

In case of a discrepancy between these Terms and the Agreement, the content of the main body of the Agreement shall have priority.

Right to use the Service

Subject to compliance with the terms of the Agreement, Theymes hereby grants to the Customer a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to use the Services specified in the Agreement in its internal operations during the subscription term (“Subscription Term”) set out in the Agreement.

Subject to compliance with the terms of the Agreement, Theymes hereby grants to the Customer a limited, non-exclusive, non-transferable, revocable license during the Subscription Term (i) to use the Services for the purpose of integrating it into the Customer’s own product offering, and (ii) to distribute the Services in object code format to its own customers (“End-Users”) as an integrated part of the customer’s own product offering.

The Customer understands and agrees that the Service is being provided to them under a limited license and is not being sold to the Customers and End-Users, and that the Customer and the End-Users do not gain any ownership interest of any kind in the Service under these Terms.

About the Service

The functionalities of the Service are further specified in the Agreement.

Unless separately set out in the Agreement, the Customer or End-Users are not entitled to receive, inter alia, customer support services, consultation services, data transfer, integration, or implementation services. In case such services are included in Theymes’s service offering, Theymes shall have the right to collect the applicable fees and charges relating to these services.

Restrictions of Use

The Customer shall only use the Services in strict accordance with the terms of this Agreement. The Customer shall not use, or permit the use of, the Services by more than the maximum number of users or applications, as applicable, specified in the applicable Purchase Order.

Unless otherwise permitted in these Terms, the Customer or the End-Users may not:

• probe, scan, or test the vulnerability of the Service;
• use the Service and the content available through the Service in any manner that could damage, disable, overburden, or impair the Service;
• use any data mining, robots, scraping, or similar data gathering or extraction methods;
• use, sell, rent, transfer, license, or otherwise provide anybody with the Service and/or the content available through the Service, except as provided herein;
• interfere with Theymes’s other customers’ use of the Service;
• reverse engineer or decompile the Service or access the source code thereof;
• use the Service for transmitting any unauthorized advertising, promotional materials, junk mail, spam, or any other form of solicitation or mass messaging;
• use the Service in violation of applicable law, including any applicable employment or privacy laws;
• modify, reproduce, adapt, translate, creative derivative works of or otherwise exploit any portion of the Service, or use the Service in ways that violate intellectual property rights, business secrets, or privacy of third parties;
• use the Service 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.

Customers Obligations

The Customer is responsible for acquiring and maintaining any and all network connections, hardware and software required for the use of the Services and is responsible for such connections, hardware and software, including their functioning, maintenance and security, as well as for ensuring that the Services fulfil the Customer's intended purpose of use.

The Customer is responsible for agreeing with any third parties on the use of application programming interfaces (APIs) or other functionalities and terms necessary for the use of the Services, and, if necessary, giving its consent to access and read the data of the Customer to the extent necessary for the provision of the Services.

The Customer’s use of the Services must comply with all applicable laws. The Customer is solely responsible for its own compliance with applicable laws, including the acquisition of any licenses or permits and the filing of any notices and reports to authorities required under applicable law, if any.

The Customer is responsible for all use of the Services by its End-Users and shall ensure that such use complies with these Terms. The Customer further acknowledges that the Services are provided exclusively as B2B services and the Customer shall remain solely responsible for any obligations or liabilities towards its End-Users in connection with the Services.

Customer shall use all reasonable endeavours to prevent unauthorised access to, or use of, the Services. All passwords and other identifiers relating to the Customer’s End-Users shall be kept confidential. In the event of or if Customer has reason to suspect any unauthorised access or use of the Service, or if any password has been revealed to a third party, the Customer shall promptly notify Theymes.

Upon the termination or expiration of the Agreement or these Terms, all rights and licenses granted hereunder shall immediately terminate. The Customer agrees to immediately (i) cease any and all use of the Services; and (ii) return to Theymes or destroy all copies of data and other material related to the Service in its possession.

Third-Party Services

Certain functionalities or elements of the Service may be provided by or integrated with services provided by third-party service providers or partners.

Theymes shall not be liable for the performance of the third-party services or for any direct or indirect claims or damages arising from the use of third-party services. In addition, Theymes shall not be liable for interruptions to the availability of the services provided by third parties.

These Terms exclusively cover the Service and the use thereof and any and all linked third-party services and platforms are provided by the relevant third parties and covered by their terms of service, privacy policies, or other terms or licenses. Theymes does not assume any liability in regard to the use of such third-party services and platforms, whether or not they are linked to the Service.

Intellectual Property Rights

The Services are provided to the Customer as SaaS services. The license to the Services is set out in the Section 2.

All title and any intellectual property rights to the Services and any related documentation belong exclusively to Theymes or its respective licensors.

Intellectual property rights shall be understood in the broadest sense, including but limited to any copyright, patent, trademark, design right, database protection right, and any other form of statutory protection of any kind (whether registered or unregistered) and applications for any of the foregoing respectively as well as any know-how, inventions, and trade secrets in or related to the Service and thereto related documentation (including modifications, if any) and all parts and copies thereof.

The Customer grants Theymes a limited, non-exclusive, non-transferable, non-sublicensable and worldwide right to use the content it may create, upload and otherwise process in the Service for the term of this Agreement and for the purpose of providing the Services under this Agreement.

Except as expressly stated herein, these Terms do not grant the Customer or the End-Users any intellectual property rights in the Service, and all rights not expressly granted hereunder are reserved by Theymes and its licensors, as the case may be.

IPR Indemnity

Theymes shall indemnify, defend, and hold harmless Customer, its officers, directors, employees, and agents (collectively, the “Indemnitees”) from any and all claims, demands, suits, actions, liabilities, damages, losses, costs, and expenses (including reasonable attorneys’ fees) arising out of or relating to infringement of third-party Intellectual Property Rights resulting from the use of the Services. Theymes’ obligations are conditioned upon Customer providing prompt written notice, giving Theymes sole control of defense and settlement negotiations, and cooperating with Theymes in the defense of such claims.

At any time, if Theymes reasonably deems that any part of the Services infringe the Intellectual Property Rights of a third party, or in the event of a third-party claim, Theymes may, at its sole expense, either (a) procure for the Customer the right to continue using the relevant Service or (b) replace or modify the Service to make it non-infringing or (c) if options (a) and (b) are not practicable for Theymes, Theymes shall have the right to terminate this Agreement with a written notice and by refunding to the Customer any service fees already paid.

Theymes has no obligation to indemnify Indemnitees to the extent the claim (a) is brought up by the Customer, its affiliates or End-Users; or the claim arises from (b) use or combination of a Service with products or services not provided by Theymes; (c) modifications to the Services not provided by Theymes; (d) compliance with instructions or specifications provided by Customer, or (e) use of the Service in a way not instructed by Theymes or in a breach of any relevant terms of use or these Terms.

Confidentiality

The Parties may exchange confidential information during the performance of this Agreement. All confidential information shall remain the property of the disclosing Party and the receiving Party shall keep confidential and refrain from using such confidential information otherwise than for the purposes of this Agreement.

The confidentiality obligations of the receiving Party under this Agreement shall not apply to information which:

• was in the receiving Party's possession before its disclosure by the disclosing Party as proven by the written records of receiving Party; or
• is independently developed by the receiving Party without recourse to the confidential information as proven by the written records of receiving Party; or
• is part of the public domain in other ways than by faults, acts of omissions of receiving Party, as proven by the written records of receiving Party.
• is part of the public domain in other ways than by faults, acts of omissions of receiving Party, as proven by the written records of receiving Party.

The receiving Party shall promptly upon the other Party’s request or termination of the Agreement cease using such material and information received from the disclosing Party and, unless the Parties separately agree on destruction of such material, return the material in question (including all copies thereof). The receiving Party shall, however, be entitled to retain the copies, if any, required by law.

This Section 9 shall survive the termination of the Agreement and these Terms and be in force for a period of five (5) years thereafter.

References

Upon the Customer’s consent, Theymes may use the Customer as a reference in its marketing, promotional, and business development activities, including but not limited to case studies, customer success stories, and testimonials, provided that such use does not disclose any confidential information without prior written consent.

For this purpose, the Customer grants Theymes a non-exclusive, worldwide, royalty-free license to use the Customer’s name, logo, trademarks, and other relevant intellectual property rights strictly as necessary for the permitted reference activities.

Analytics Data

Theymes shall have the right to collect aggregated and anonymized analytics data from the Customers and the End-Users’ use of the Service, provided that such data cannot be linked to any identifiable individual or the Customer entity. Such analytics data shall be proprietary to Theymes, and the Customer hereby assigns to Theymes all rights, titles, and interests, including intellectual property rights, they may have in such analytics data.

Theymes may use such analytics data to e.g. develop its own products and services, generate statistics and compilations, and use them for the service offerings as well as for its other commercial purposes.

Personal Data Processing

In respect of any personal data processed on behalf of the Customer within the Service, the Customer shall be the data controller and Theymes the data processor. In respect of such processing, the Parties have entered into a Data Processing Agreement (“DPA”), which is hereby incorporated by reference as an integral part of these Terms

Interfaces and integration tools

For the avoidance of doubt, all interfaces and integration tools relating to the Service are provided on an “as is” basis. Theymes may provide the Customer with such interfaces and integration tools as developed and implemented by Theymes 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. Theymes shall not, under any circumstances, be liable for the actions of such third parties or the parts of the interfaces or integration tools that are delivered, maintained, or owned by third parties.

Availability

Unless the Parties have separately agreed on specific service levels, Theymes will strive but cannot fully guarantee to have the Service available 24 hours a day, 7 days a week during the term of the subscription.

Notwithstanding the above-mentioned, Theymes shall have the right to temporarily suspend the provision of the Service in accordance with the following, without any obligation to compensate any damages or service level failures. In the event of an emergency, failure, security breach, network disruption or disruptions of third-party suppliers, without limiting any other rights of Theymes, the Services or parts thereof may be temporarily interrupted or suspended. Theymes 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 Theymes has become aware of such occurrence.

Theymes undertakes to take reasonable efforts to inform the Customer of any planned disruptions (such as installation work, changes, maintenance) to the Services or parts thereof in advance. Theymes shall have the right to deny access to the Service without any prior notice if Theymes suspects that the Customer or the End-Users burden or use the Service in a manner which may jeopardize the availability of the Service to other users. Theymes shall without undue delay inform the Customer of the reasons for such denial.

The Customer further acknowledges that interruptions to the availability of the Service may also occur due to no fault of Theymes, for example, in the event of data connection disruptions or interruptions to the availability of systems or components delivered by third parties.

Fees and payment

As a compensation for the use of the Services, the Customer shall pay Theymes the fees set forth in the Agreement.

Unless otherwise agreed in the Agreement, invoicing shall be performed in advance on a monthly basis.

The payment term shall be twenty-one (21) calendar days from the date of the invoice. Late payment interest shall accrue as set out in the Finnish Interest Act (633/1982, as amended).

All prices quoted are net amounts and exclusive of VAT or any other applicable sales tax, as the case may be, which will be added to the invoices where applicable.

Except as expressly set forth herein, all fees are non-refundable once paid and the Customer shall not be entitled to refund of any fees in the event of termination of these Terms or the Agreement.

Theymes shall have the right to adjust the fees and prices for the Services from time to time. Any change in the pricing for Services shall be notified by Theymes to the Customer in writing at least three (3) months prior to such change taking effect. In the case the Customer does not accept the price amendment, the Customer shall have the right to terminate the Agreement as of the effective date of the price amendment by a written notice to Theymes, which notice shall be issued at least thirty (30) days prior to the effective date of the price amendment. Any price list changes shall not apply to ongoing subscription terms that have already been paid for by the Customer, but they shall be applied to any renewals of such Service subscription terms. If the Customer does not issue a termination notice as set out above, the price amendment shall be deemed to be approved by Customer.

Theymes may make modifications or changes to the Services or these Terms at any time at its sole discretion and without notification, provided that such changes do not materially affect the Customer, End-Users or the usability of the Service.

If Theymes introduces changes to the Services or these Terms materially affecting the Service, Theymes will notify the Customer thereof at least thirty (30) days in advance in writing and the Customer is entitled to object to the revised Terms, in which case Theymes may elect to have the prior Terms control, to negotiate an alternate solution with Customer, or if neither of the foregoing is applicable then Customer may terminate the Agreement in case the Customer does not accept the changes.

Customer’s continued use of the Service following notice, and/or Customer’s failure to object in writing to a proposed change within the thirty (30) day period, constitutes Customer’s acceptance the revised Terms.

Warranty and limitation of liability

Theymes warrants that it shall perform its obligations under these Terms and the Agreement in a timely and professional manner and in compliance with all applicable laws and regulations and that the Services are free of any harmful or malicious code, viruses, malware or security threats.

Except as specifically provided under these Terms or the Agreement, the Service is provided “as is” and with the functionalities available at each time without warranty of any kind, either express or implied,

Severability

If any part of these Terms 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 these Terms. Instead, these Terms 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 unenforceability.

Force Majeure

Neither Party shall be liable to the other or be deemed to be in breach of these Terms by reason of any delay in performing, or any failure to perform, any of its obligations under these Terms, if the delay or failure was due to any cause beyond its reasonable control (“Force Majeure”). If such event of Force Majeure continues for a period of more than 30 days and the Parties have not been able to agree to alternative arrangements, the Party not affected by Force Majeure shall have the right to terminate the Agreement forthwith by a written notice to the other Party. In such case no compensation or indemnity is due.

Entire Agreement

These Terms, together with the Agreement, represent the entire agreement between the Parties with respect to the subject matter hereof and supersede all prior negotiations, understandings and agreements relating to the subject matter hereof. For clarity, these Terms, together with the Agreement and its appendices, shall replace in entirety all agreements, in whatever form, concluded between the Parties prior to the Agreement and relating to the subject matter hereof.

No Waiver

The failure by a Party to enforce any of the provisions of these Terms shall not constitute a waiver of the same or affect that Party's rights thereafter to enforce the same, except where such waiver is expressly provided for in writing.

No Agency

Nothing in these Terms is intended to or shall operate to create a partnership between the Parties, or authorize either Party to act as agent for the other, and neither Party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).

Amendments

These Terms may be amended only by an instrument in writing signed by both Parties, excluding Theymes’s right to amend these Terms unilaterally under Section 17.

Governing Law and Dispute Resolution

These Terms are executed in accordance with and shall be governed by the laws of Finland, excluding its choice of law provisions.

Any dispute, controversy or claim arising out of or relating to these Terms, or a breach, termination or validity thereof shall be settled primarily by amicable negotiations between the Parties.

Should negotiations not lead to a settlement between the Parties in sixty (60) days, any dispute, controversy or claim arising out of or relating to these Terms, 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 (1). The seat of arbitration shall be Helsinki, Finland, and the language of the arbitration shall be English. Evidence may be presented and witnesses heard in addition in Finnish language.