General Terms and Conditions for HMD Enable Pro
HMD Global Oy, Bertel Jungin aukio 9, 02600 Espoo, Finland including its subsidiaries, suppliers, authorized resellers and successors (collectively “Service Provider”) provides HMD Enable Pro services (“Services”) based on the following General Terms and Conditions (”Terms”) to Customer as identified in the relevant Order Form (“Customer”).
When placing an Order Form (“Order”), the Customer must always state their VAT number, if applicable, and/or company registration number and details. Order Form (“Agreement”) becomes valid after Service Provider accepts the Order Form, which Customer has submitted to Service Provider. The orders issued to Service Provider are only accepted if confirmed by Service Provider in writing. Upon Service Provider’s acceptance of the Order Form, the Customer shall be enabled to use the Services as specified in the Order Form.
Unless otherwise agreed, any changes to this Agreement shall be communicated by Service Provider to Customer in advance in writing (by email) (“Changes”). Changes will be effective upon thirty (30) days’ written notice. In case Changes are not accepted, Customer is entitled to terminate the respective Order Form by providing fourteen (14) days’ written notice to Service Provider.
Any subsequent orders are subject to these Terms. These Terms apply exclusively and no general terms of business/procurement of the Customer shall apply to the Services. Any agreements containing individual terms deviating from these Terms are not acceptable without Service Provider’s prior written consent. In case of any conflict between these Terms or the Order Form, the following order of precedence shall apply for clarification of the conflicting terms:
Order Form as accepted by Service Provider
General Terms and Conditions for HMD Enable Pro
2 Services provided by Service Provider
Service Provider is providing these Services to enterprise customers only. Service Provider reserves the right to adjust the scope of these Services at any time by giving prior written notice and to add functionality or, in rare cases, reduce or terminate functionalities. Service Provider may, at its discretion use subcontactors for providing the Services.
Upon acceptance of the Offer Form, the Customer shall be enabled to use the Service provided by Service Provider as specified in the Order Form, which include the use of the device management console made available via the internet for the monitoring, configuring and the administration of mobile devices (“Management Console”). The use of the Management Console shall be limited to a number of Licenses specified in the Offer Form.The Service may also include training and support services. The Services may also include mobile applications compatible with the Service.
The Customer agrees that this Agreement and any order of a Service is not contingent on the delivery of any future functionality or features, or dependent on any oral or written public representations made by Service Provider regarding future functionality or features and Service Provider is not responsible for the failure of any future functionality or features that it provides or does not provide at its discretion.
3 Term and Termination
The term of the agreement is specified in the Order Form. If the Agreement is concluded for an indefinite period of time, it will remain valid until either party terminates the Agreement with two (2) months’ written notice to the other party.
Notwithstanding the foregoing, if the Agreement is concluded for a fixed period (6 months or 12 months), and paid in advance, the Agreement shall automatically renew for a subsequent period of the same length as the initial term, unless either party gives the other party a written notice of termination at least two (2) months prior to the expiry of the then-current term.
The parties are entitled to terminate the Agreement with immediate effect upon notice in writing to the other party, if the other party commits material breach of the Agreement and fails to remedy such breach within thirty (30) days of receipt of a written notice giving full particulars of such material breach requesting that it be remedied. Termination notices shall be given in writing, i.e. by letter, or email as defined in Agreement. Services are provided until the last day of a contractual term and the Customer is obliged to pay all fees charges incurred until that time.
The provisions of the Terms that are intended to survive termination of the Services or this Agreement shall remain valid after termination.
4 Customer Obligations
4.1 General. Customer will adhere to these Terms and any and all applicable laws when using such Services. By registering for or using the Service, the Customer unconditionally accepts these Terms. If the Customer does not agree to be bound by these Terms, it may not use the Service. Customer shall cooperate with Service Provider in providing the Services and shall provide all necessary information, including but not limited to name, address, email address (and is responsible for keeping such information up to date) to Service Provider. Email is considered to have arrived to Customer after Service Provider has sent the email to the email address Service Provider has on file.
Customer may not transfer, lend, lease or otherwise transfer the subscription to others except as expressly set forth herein or agreed in writing between the parties. Customer is responsible for the unauthorized use of the username and passwords in accordance with the rules and restrictions set forth by Service Provider or any applicable laws. Any abuse or breach of the rules and restrictions set forth by Service Provider or any applicable laws is the Customer’s responsibility and Customer will indemnify and hold harmless Service Provider from and against any and all third party claims that arise out of such abuse or breach defined above.
4.2 The Customer will retain all right, title and interest in and to any of its data, code or other materials that interact with, is uploaded to, or is managed by the Services (“Customer Data”). The Customer is solely responsible for any Customer Data uploaded to the Service.
Without prejudice to its other rights under this Agreement, Service Provider is entitled to suspend wholly or partly the use of its Services (in the following 'Suspension') in the following cases:
The Customer defaults or is late on any payments.
Service Provider obtains information that the Services are used in violation of any applicable law.
If the Customer fails to provide Service Provider with a valid business address and email address and any other essential information reasonably requested by Service Provider in accordance with the Agreement.
If the Customer, despite a written notice provided in accordance with this Agreement, continues to breach the terms and conditions of this Agreement.
In case of Suspension, the Customer is responsible for any charges that accrue through the date that Service Provider fully processes the Suspension. To the extent permitted by applicable law, Customer shall reimburse Service Provider for any reasonable costs incurred, including attorneys' fees, to collect fees owed by Customer to Service Provider. If the Customer has failed to pay any fees due, Service Provider may require that the Customer pays a deposit and/or a fee to restore the Service(s).
6 Prices and Invoicing
Any fees charged by Service Provider will be announced separately in connection with the relevant Service and agreed in the Order Form. The fees charged by Service Provider may include taxes (such as value added tax, goods and services tax, or sales tax), if applicable and in effect at the moment of the transaction under the relevant tax laws. Customer will pay Service Provider for the fees that are reflected in connection with the relevant Service. The parties will agree in the Agreement whether Services are paid in advance or after the Service has been provided. All the fees charged by Service Provider are non-refundable.
Service Provider will send invoices to the Customer by email in PDF format, for which Customer shall entertain a valid reader license and be liable for all bills sent to their current email address on file.
Payment occurs when received in Service Provider’s bank account. The late payment interest is the higher of (i) eleven (11) percent per annum (subject to restrictions set by applicable mandatory law) or (ii) the highest rate defined in the applicable law.
7 Specific Terms related to the use of the Management Console
The starting date and term of the Services are defined in the Order Form.
Subject to the Customer being in compliance with the Terms, HMD Global Oy grants to the Customer a personal, limited, revocable, non-exclusive, worldwide, non-transferable and non-assignable right to use the Service as provided by HMD Global Oy. The customer receives the right to use the Service on the number of devices that the subscription under this Agreement is purchased for.
Customer shall not itself or permit others to copy, reproduce, modify, reverse engineer, disassemble, decompile or otherwise attempt to derive the source code of the Services, unless it is expressly permitted by law, or expressly permitted by HMD Global Oy.
8 Intellectual Property
The Service, any content and software are protected under international copyright laws. HMD Global Oy claims copyrights in its Service, content, and software to the maximum extent of the law. Subject to the Terms, HMD Global Oy retains all right, title and interest in the Service, its content, the software and in all other HMD Global Oy products, software and other properties provided to Customer or used by Customer through the Service. All corporate names, service marks, logos, trade names, trademarks, websites and domain names of HMD Global Oy, including but not limited to “Nokia” (collectively “Marks”) are and shall remain the exclusive property of HMD Global Oy or its licensors and nothing in these Terms shall grant the Customer any license to use any Marks without HMD Global Oy’s prior written permission.
9 Data protection
9.1 The Customer agrees that the provisions of (i) Directive 2002/58/EC on Privacy and Electronic Communications; (ii) Regulation (EU) 2016/679 (the “GDPR”) on the protection of natural persons with regard to the processing of personal data; and (iii) all local laws or regulations implementing or supplementing the EU legislation mentioned in (i)-(ii) above and any subsequent amendments thereof (“Data Protection Laws”) and relevant international, regional and national data protection and privacy legislation shall apply to the transfer and processing of personal data hereunder and agrees to comply with such legislation.
9.2 The section 9 of these Terms shall apply in cases where Service Provider is processing personal data on behalf of the Customer. For the purposes of these Terms the following definitions shall have the following meanings: “Customer Personal Data” shall mean the Personal Data (i) supplied to Service Provider by or on behalf of the Customer and/or (ii) obtained by or created by Service Provider on behalf of the Customer in the course of delivery of the Services, and which in each case is processed by Service Provider in connection with Services; “Controller”, “Data Subject”, “Processing”, “Processor”, “Personal Data” and “Personal Data Breach” shall have the same meaning as defined in the GDPR.
9.3 Service Provider (and its subcontractors) may be required to access, receive, store or otherwise process Customer Personal Data in order to provide the Services under these Terms for the duration of the Agreement.
9.4 The following shall apply to (i) the appointment of Service Provider as the Processor by the Customer and to (ii) the appointment of sub-processors by Service Provider:
(a) Where the Services comprise Processing of Customer Personal Data by Service Provider, Service Provider shall be the Processor and the Customer shall be the Controller with respect to such Customer Personal Data. Each Party shall comply with the applicable Data Protection Laws with regard to such Processing in connection with the Services;
(b) If a party considers that the relationship between them no longer corresponds to the intention of the parties stated in Clause 11.4(a) above then it shall notify the same to the other party. The parties shall negotiate in good faith to amend the Agreement to give it the meaning reflecting such changed circumstances; and
(c) Notwithstanding any other provision of these Terms, Service Provider shall be entitled to engage sub-processor in relation to any part of Services requiring the Processing of Customer Personal Data. Service Provider shall (i) impose the same data protection obligations as set out in these Terms on such sub-processor; and (ii) remain fully liable to the Customer for the performance of the sub-processor's obligations.
9.5 Service Provider’s obligations:
(a) Service Provider shall (i) process Customer Personal Data in compliance with the GDPR and good data processing practices, (ii) follow the instructions by the Customer regarding the Processing of Personal Data, unless prescribed otherwise by the provision of the Data Protection Law to which the Service Provider is subject to, and (iii) not process Customer Personal Data for any other purposes than the sole purpose of providing the Services to the Customer under these Terms unless otherwise required by applicable law or regulation.
(b) Service Provider shall ensure that any persons authorised by it to process the Customer Personal Data are subject to confidentiality obligations.
(c) HMD Gloval shall adopt, maintain and enforce appropriate security policies as well as data protection and safeguarding arrangements for the lawful protection of Personal Data, communications and systems (including appropriate technical and organisational measures as required in Article 32 of the GDPR).
(d) Service Provider shall notify the Customer immediately after becoming aware of any Personal Data Breach as well as provide the required information to the Customer.
(e) Taking into account the nature of the Processing, Service Provider will assist the Customer by appropriate technical and organisational measures with responding to the Data Subjects' requests under the GDPR.
(f) Taking into account the nature of the Processing and the information available to Service Provider, Service Provider shall assist the Customer with regard to its obligations under the following Articles of the GDPR: (i) Article 32 (Security of processing); (ii) Articles 33 and 34 (Notification and communication of a personal data breach); (iii) Article 35 (Data protection impact assessment); and (iv) Article 36 (Prior consultation with the supervisory authority).
(g) Upon termination of Services that required the Processing of Customer Personal Data (in whole or in part) Service Provider shall, as requested by the Customer, return or destroy such Customer Personal Data which is in the possession of or under the control of Service Provider, unless the Data Protection Laws require Service Provider to store such Customer Personal Data.
(h) Service Provider shall, and at the request of the Customer, provide the Customer with all information necessary to demonstrate its compliance with its obligations under this Clause 9.5 and shall allow and contribute to audits and inspections conducted by or on behalf of the Customer.
(i) Where required to do so by the GDPR, Service Provider shall maintain written records of its Processing of Customer Personal Data and make them available to a supervisory authority on a request.
9.6 Service Provider is entitled to charge the Customer for costs and expenses that were incurred as a result of complying with the above clause 9.5 (e), (f) and (h).
9.7 The Customer’s obligations:
(a) the Customer is responsible to fulfil all obligations that apply to it as the Controller under applicable Data Protection Laws, including but not limited to identifying and establishing its independent legal basis for Processing of Personal Data, and fulfilling transparency requirements regarding the Processing.
(b) the Customer shall ensure that: (i) the supply to Service Provider of Customer Personal Data by or on behalf of the Customer for the purposes of Processing undertaken in compliance with these Terms by Service Provider and its sub-processors shall comply with the Data Protection Laws; and (ii) the instructions given by the Customer to Service Provider for Processing Customer Personal Data shall comply with the Data Protection Laws.
(c) The Customer is responsible for filing any necessary registrations in relevant countries, where applicable, in accordance with applicable data protection and privacy laws.
9.8 In the event that the exchange and Processing of the Customer Personal Data requires further written specification of the rights and obligations of the Parties, the Parties shall enter into separate Data Processing Agreement.
9.9 Service Provider may process Personal Data for the advertising, marketing and research purposes but only when the individuals have given their explicit consent in this respect.
Customer will, at its cost and expense, defend and indemnify Service Provider and its affiliates from and against all third party claims and all liabilities, assessments, losses, costs or damages resulting from or arising out of (i) Customer’s breach of the Agreement, (ii) Customer’s infringement or violation of any intellectual property rights, other rights or privacy of a third party, or (iii) misuse of the Service by a third party where the misuse was made possible by the Customer’s failure to take reasonable measures to protect its username and password against misuse; or (iv) Customer’s use of the Services and Management Console.
11 Limitation of Liability
THE SERVICE IS PROVIDED ON “AS IS” AND “AS AVAILABLE” BASIS. SERVICE PROVIDER DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED, ERROR OR VIRUS-FREE OR MEET YOUR REQUIREMENTS. NO WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, IS MADE IN RELATION TO THE AVAILABILITY, ACCURACY, RELIABILITY, INFORMATION OR CONTENT OF THE SERVICE. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT BECAUSE SOME OF THE SERVICES MAY BE PROVIDED OVER MOBILE AND INTERNET NETWORKS OUTSIDE OF SERVICE PROVIDER’S CONTROL, THEY ARE SUBJECT TO OUTAGES, DISRUPTIONS, AND INTERCEPTION, AND THAT SERVICE PROVIDER HAS NO LIABILITY FOR ANY SUCH OUTAGES, DISRUPTIONS OR INTERCEPTIONS. YOU EXPRESSLY AGREE AND ACKNOWLEDGE THAT THE USE OF THE SERVICE IS AT YOUR SOLE RISK AND THAT YOU MAY BE EXPOSED TO CONTENT FROM VARIOUS SOURCES WHICH SERVICE PROVIDER IS NOT RESPONSIBLE FOR. IN ADDITION, UNDER NO CIRCUMSTANCES WILL SERVICE PROVIDER BE LIABLE FOR DAMAGES ARISING OUT OF OR RELATED IN ANY WAY TO YOUR INABILITY TO ACCESS, OR YOUR DIFFICULTY IN ACCESSING, THE SERVICES TO THE MAXIMUM EXTENT PERMITTED BY LAW.
EXCEPT WHERE PROHIBITED BY LAW, SERVICE PROVIDER WILL NOT BE LIABLE FOR DAMAGES THAT EXCEED THE AMOUNT OF SERVICE PROVIDER’S CHARGES TO YOU FOR YOUR ACTUAL USE OF THE SERVICES DURING THE PRIOR ONE MONTH PERIOD. TO THE MAXIMUM EXTENT PERMITTED BY LAW, EXCEPT FOR LIABILITY FOR DEATH OR PERSONAL INJURY CAUSED BY ITS GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT, IN NO CASE WILL SERVICE PROVIDER BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES RESULTING FROM YOUR USE OF OR INABILITY TO USE THE SERVICE.
12 Governing Law and Dispute Settlement
Unless otherwise agreed in writing between the parties, this Agreement shall be governed by the laws of Finland. The application of uniform sales law, in particular the application of the Convention of the United Nations on Contracts for the International Sale of Goods (CISG) is expressly excluded. Any dispute, controversy or claim arising out of or relating to this Agreement, or the breach, termination or validity thereof shall be finally settled by arbitration in accordance with the Arbitration Rules of the Finnish Central Chamber of Commerce in Helsinki, Finland, in English. The award shall be final and binding on the parties. Any dispute, controversy or claim arising out of or relating to this Agreement and the final award shall be deemed confidential information under this Agreement. Nothing in this Agreement shall limit the parties' rights to seek interim injunctive relief or to enforce an arbitration award in any court of law.
13 Other Provisions
13.1 Force Majeure: Service Provider is not liable to Customer for any delay, failure to perform, loss or damage due to causes beyond Service Provider’s reasonable control, including but not limited to acts of God, fire, strikes, explosions, power failure, earthquake, flood, water, labor disputes, war, national emergency, terrorism, acts or omissions of carriers or suppliers, systems failure, cyberattacks and acts of regulatory or governmental agencies.
13.2 Assignment: Service Provider may assign its rights and obligations under these Terms to its corporate parent, any of its subsidiaries, or to any company under common control with Service Provider. Additionally, Service Provider may assign its rights and obligations under these Terms to a third party in connection with a merger, acquisition, sale of assets, by operation of law or otherwise
13.3 Severability: These Terms shall not exclude nor limit any mandatory rights of the Customer that cannot by law be waived. If a provision of these Terms is found to be invalid, the remaining provisions will not be affected and the invalid provision will be replaced with a valid provision that comes closest to the result and purpose of the Terms. In the event one or more provisions of these Terms are not relevant to Customer’s use of the Service, it shall not impact the validity or enforceability of any other provision of the Terms or the Terms as a whole.
13.4 Feedback: By submitting any ideas, feedback and/or proposals ("Feedback") to Service Provider through the Service or other means, Customer acknowledges and agrees that: (1) Service Provider may have similar development ideas to the Feedback; (2) Feedback does not contain confidential or proprietary information of Customer or any third party; (3) Service Provider is not under any obligation of confidentiality with respect to the Feedback; (4) Service Provider may freely use, distribute, exploit and further develop and modify Feedback for any purpose; and (5) Customer is not entitled to any compensation of any kind from Service Provider.
13.5 Confidentiality: The parties undertake to treat the contents of the agreements existing between the parties, as well as all confidential information related to this, as confidential. Both parties may make use of confidential information only for purposes of this agreement. Neither party may publish any confidential information without the prior consent of the other party, or pass it on to third parties. Information is considered confidential, if the party that has produced the information has marked it confidential or if the confidentiality of certain information derives from the circumstances. In case of doubt, all information is confidential. Information that was already known to the parties at the time of the receipt of the information, or made known by a third party without the obligation to keep confidential, or which were already publicly known at the time of the transfer or later without breach of this confidentiality agreement became known are not considered confidentia. The foregoing confidentiality obligations apply to the termination of this contract, and for a period of three (3) years after its termination.
13.6 Claims by Customer: Customer shall notify Service Provider of any possible claim it may have against Service Provider based on this Agreement within a reasonable time, however no later than in three (3) months after Customer became aware of an event that may give reason for such claim.
13.7 Prohibited Use: Customer may not use or attempt to use the Service in connection with any use which is prohibited by any applicable export control and economic sanction regulations, including those of the US, UK, and EU. Customer shall immediately notify Service Provider in writing upon becoming aware of or suspecting such activity in the course of the services offered by Customer. In the event that Service Provider reasonably believes that this clause may have been breached, Customer will cooperate fully with any investigation to resolve the concern and/or Service Provider reserves the right to suspend its Services during the investigation at its reasonable discretion without any penalty or liability to Customer.
Version 1.1, 17 February 2021