Valid from 27 Jan 2021
THESE TERMS OF SERVICE (“AGREEMENT”) CONSTITUTE A BINDING AGREEMENT BETWEEN NURSEBUDDY, A FINNISH CORPORATION (FINNISH BUSINESS ID 2482476-8) AND THE CUSTOMER. THE AGREEMENT GOVERNS CUSTOMER’S USE OF NURSEBUDDY SERVICE AVAILABLE AT NURSEBUDDY SERVERS.
IF CUSTOMER REGISTERS FOR A FREE PLAN OF THE SERVICE CALLED LAUNCHPAD, THIS AGREEMENT WILL ALSO APPLY TO THAT FREE PLAN.
BY SIGNING UP OR OTHERWISE USING THE SERVICE, CUSTOMER ACCEPTS THE TERMS OF THIS AGREEMENT AND AGREE TO BE BOUND BY THE TERMS SET HEREIN.
IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THIS AGREEMENT, IN WHICH CASE THE DEFINITIONS “CUSTOMER OR THEIR” SHALL REFER TO SUCH ENTITY.
IF YOU DO NOT AGREE WITH THE TERMS SET OUT HEREIN, PLEASE DO NOT ACCEPT THE AGREEMENT AND DO NOT USE THE SERVICE.
“Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common Control with the subject entity.
“Control” means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Customer” or “Their” means you individually or the company or other legal entity for which you are accepting, and have the authority to accept, this Agreement.
“Customer Data” means all electronic data or information submitted by Customer or someone on Their behalf to the Service.
“Intellectual Property Rights” shall mean copyrights and related rights (including database and catalogue rights and photography rights), patents, utility models, design rights, trademarks, trade names, trade secrets, know-how and any other form of registered or unregistered intellectual property rights.
“Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
“Service” means the online, Web-based NurseBuddy home care software service provided by Us, excluding Third Party Applications.
“Third Party Applications” means software such as add-ons that are provided by third parties, and that the Customer or the care workers and nurses may use to interoperate with the Service.
“Users” means individuals who are authorized by the Customer to use the Service on Customer’s behalf in Their organisation and who have a personal identification and password to use the Service. Subject further to Section 5, Customer’s permitted Users consist of Their employees, and Their consultants, contractors and agents that Customer has engaged to assist in Their work (“Representatives”), and Their service user contacts with access to the Service.
“We”, “Us”, “Our” or “NurseBuddy” means NurseBuddy, a Finnish corporation (Business ID 2482476-8), the owner and operator of the Service.
2. CUSTOMER’S RIGHT TO USE THE SERVICE DURING THEIR SUBSCRIPTION TERM
We shall make the Service available to Customer pursuant to this Agreement during the term of the Subscription and, if applicable, the free trial period.
As We continuously strive to improve the Service, We reserve the right at any time to modify, block, discontinue, update, develop, improve and enhance the Service as well as this Agreement during the Subscription term at our discretion. We aim at informing Customer of possible Service breaks and changes materially affecting Their use of the Service via the Service or by using other channels available to Us.
3. OUR RESPONSIBILITIES
We shall use commercially reasonable efforts to provide the Customer with technical support in the use of the Service. Support requests may be sent by email to email@example.com and by phone as informed in the Service.
3.2 Protection of Customer Data.
Processing of personal data by NurseBuddy on behalf of the Customer shall be subject to a separate data processing agreement (“DPA”) and incorporated to this Agreement by reference. In the event of discrepancy between this Agreement and the DPA the DPA shall prevail.
3.3 Customer Data at the Termination or Expiry of this Agreement.
Please note that Customer is responsible for Customer Data and making of appropriate backup copies of Customer Data. Upon termination or expiration of Their use of the Service the Customer may request a copy of Customer Data stored in Our database within 30 days from the termination or expiry date. We may charge the Customer for providing such copy in a format selected by Us and in accordance with Our price list in force at that time. Should the Customer wish for us to continue to retain Customer Data on Their behalf also after the termination or expiry or this Agreement, should Customer contact us as early as possible to inquire about Our possible data retention services. Unless the Customer has purchased such data retention services from Us, We will destroy Customer Data without undue delay after the said 30-day period.
4. PERMITTED USERS.
If Customer registered to use the Service in Their individual capacity, Customer individually is the only permitted User of the Service and may not permit any other individual or entity to use the Service under Their registration.
If Customer registers to use the Service on behalf of Their company, Their permitted Users are restricted to those employees or Representatives with an email address in the same domain name as with Their company and as set forth in the email address They used to register for the Service. Customer will be responsible for Their employees’ and other representatives’ compliance with the terms of this Agreement.
Customer shall ensure that Users use the Service in compliance with the Terms of this Agreement. Misuse of the Service by Customer or any User may lead to termination of the Agreement or suspension or denial of access to the Service.
5. CUSTOMER’S RESPONSIBILITIES
5.1 Use of Service
Customer shall be responsible (i) for obtaining and paying for the Internet/data connection as well as systems, applications and devices required to use the Service, (ii) Their Users’ and Representatives’ compliance with this Agreement, (iii) be solely responsible for Their care and nursing services and other services; and the accuracy, quality, integrity and legality of Customer data and of the means by which Customer acquires Customer data, (iv) use commercially reasonable efforts to prevent unauthorized access to or use of the Service, and notify Us promptly of any such unauthorized access or use, and (v) use the Service only in accordance with the User Guide and instructions given in the Service, if applicable, and applicable laws and government regulations.
Customer shall not (a) make the Service available to anyone other than Their permitted Users and Representatives; (b) use, sell, rent, transfer, license or otherwise provide anybody with the Service; (c) use the Service to store or transmit Malicious Code; (d) interfere with other Customers’ use and enjoyment of the Service; (e) circumvent or try to circumvent any usage control or anti-copy functionalities of the Service; (f) reverse engineer or decompile the Service or access the source code thereof, except as permitted by law; or (g) integrate the Service (by building interfaces or otherwise) with any other system or software, or attempt to gain unauthorized access to the Service or their related servers, systems or networks without the prior written consent from Us.
5.2 Third Party Applications and Customer Data.
If Customer installs or enables Third Party Applications for use with the Service, Customer acknowledges that providers of those Third Party Applications may have access to Customer Data as required for the interoperation of such Third Party Applications with the Service. We shall not be responsible for any Third Party Applications or disclosure, modification or deletion of Customer Data resulting from any such access by Third Party Application providers.
6. FEES AND PAYMENT FOR PURCHASED SERVICE
Customer shall pay all fees for purchased Subscription as specified upon such purchase or registration. Current standard pricing can be checked on the pricing page.
Any exceptions to the standard pricing must be in writing.
If Customer has been accepted to our Launchpad service, they can use it with no charge until they reach the liCustomer shall pay all fees for purchased Subscription as specified upon such purchase or registration. Current standard pricing can be checked on the pricing page.
Any exceptions to the standard pricing must be in writing.
If Customer has been accepted to our Launchpad service, they can use it with no charge until they reach the limit specified. After reaching that limit once, the current standard pricing is applied.
Value added tax shall be added to the fees and be borne by Customer in accordance with applicable tax regulations.
Customer is invoiced according to their selected payment schedule. Subscription fee is charged upfront. Customer has the responsibility to select a volume plan that covers the monthly or annual volume they need, and update the volume plan when needed.
Monthly Subscription: By purchasing a Monthly Subscription, you agree to an initial and recurring Monthly Subscription fee at the then-current Monthly Subscription rate, and you accept responsibility for all recurring charges until you cancel your subscription. You may cancel your Monthly Subscription at any time, subject to the terms of our cancellation policy.
Annual Subscription: By purchasing an Annual Subscription, you agree to an initial pre-payment for one full year of service . After one year and annually thereafter, you will be billed a recurring Annual Subscription renewal fee at the then-current Annual Subscription rate. We will notify you before the renewal fee is billed.
For the sake of clarity, We may amend the applicable fees for the Subscription from time to time by giving Customer at least 30 days’ prior written notice in the Service or other applicable communication channels. If Customer does not accept such amended fees, Customer may terminate the Agreement to end in accordance with this Agreement or when the amended fees would take effect.
All payments made in accordance with this Agreement are non-refundable. For clarity, in the event of early termination during a subscription period, Customer shall not be entitled to a refund of any prepaid fees but will have continued access to the Service for the paid period.
6.1 Suspension of Service and Acceleration.
If any undisputed amount owing by Customer under this Agreement is seven (7) or more days past due, We may, without limiting Our other rights and remedies, suspend the Service to Customer, with a three (3) days’ prior notice, until such amounts are paid in full.
7. PROPRIETARY RIGHTS
7.1 Reservation of Rights; License.
We reserve all rights, title and interest in and to the Service and its Intellectual Property Rights, including all Intellectual Property Rights pertaining thereto. The Service is licensed, not sold, to Customer, and Company and its licensors retain ownership of all copies of the Service and the Content even after installation on Customer’s or Users’ computers, mobile device and/or other relevant devices.
We grant Customer a non-exclusive, non-transferable, non-sublicensable and limited right to access and use the Service during the validity of this Agreement. These rights are (a) non-perpetual and (b) conditional on Customer’s continued compliance with the terms of this Agreement, including payment for the Service. We reserve all rights not expressly granted to Customer in this Agreement, including any rights by implication or otherwise.
Customer shall not (i) create derivative works based on the Service, (ii) copy, frame or mirror any part or content of the Service, other than copying or framing on Their own intranets or otherwise for Their own internal business purposes, (iii) reverse engineer the Service, or (iv) access the Service in order to (a) build a competitive product or service, or (b) copy any features, functions or graphics of the Service.
7.3 Ownership of Customer Data.
Customer grants Us a non-exclusive, transferable, sub-licensable, royalty-free, perpetual, irrevocable, fully paid, worldwide licence to use, reproduce, translate, modify, create derivative works from any of Customer Data in connection with the Service, in order to provide the Service, through any medium, whether alone or in combination with other content or materials, in any manner and by any means, method or technology, whether now known or hereafter created.
Aside from the rights specifically granted herein, Customer retains ownership of all rights, including Intellectual Property Rights, in Customer Data.
We shall have a royalty-free, worldwide, transferable, sub licensable, irrevocable, perpetual license to use or incorporate into the Service any suggestions, enhancement requests, recommendations or other feedback provided by Customer relating to the operation of the Service.
8.1 Definition of Confidential Information.
As used herein, ”Confidential Information” means all confidential information disclosed by a party (” Disclosing Party“) to the other party (” Receiving Party“), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. 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, during the term of this Agreement and 5 years thereafter.
Customer’s Confidential Information shall include Customer Data; Our Confidential Information shall include the Service; and Confidential Information of each party shall include the business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information shall not include any information that (i) is or becomes generally known to the public, (ii) is received from a third party without breach of any confidentiality obligation, (iii) was in the Receiving Party’s possession without any confidentiality obligation and before its disclosure by the Disclosing Party, or (iv) was independently developed by the Receiving Party without recourse to the Confidential Information.
8.2 Protection of Confidential Information.
Except as otherwise permitted in writing by the Disclosing Party, (i) the Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) the Receiving Party shall limit access to Confidential Information of the Disclosing Party to those of its employees and Representatives who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.
8.3 Compelled Disclosure.
The secrecy obligations of the Receiving Party under this Agreement shall not apply to information which is disclosed by the Receiving Party pursuant to judicial order, a requirement of a governmental agency or by operation of law, provided that the Receiving Party gives the Disclosing Party a written notice of such requirement as soon as reasonably possible after learning of such requirement.
9. WARRANTIES AND DISCLAIMERS
EXCEPT AS EXPRESSLY PROVIDED HEREIN, WE MAKE NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND WE SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS.
The services provided by NurseBuddy, are provided to the Customer on an ”as is” basis and all compliance with applicable laws, acts, country standards, case law and all similar provisions in the client’s country or jurisdiction, are the sole responsibility of Customer. NurseBuddy is in no way or manner responsible to comply by the aforementioned provisions in the Customer’s country. The client agrees to release NurseBuddy from all aforementioned responsibilities, and or liabilities, arising from the requirement to comply by such provisions.
Customer shall defend Us against any claim, demand, suit or proceeding made or brought against Us by a third party alleging that Customer Data or Their use of the Service, breaches the privacy, employment or other laws of any jurisdiction or rights of a third party (a “Claim Against Us”), and shall indemnify Us for any damages, reasonable attorney fees and other costs or for any amounts paid by Us under a court-approved settlement of a Claim Against Us; provided that We (a) promptly give Customer a written notice of the Claim Against Us; (b) give Customer sole control of the defense and settlement of the Claim Against Us (provided that Customer may not settle any Claim Against Us unless the settlement unconditionally releases Us of all liability); and (c) provide to Customer all reasonable assistance, at Their expense.
11. LIMITATION OF LIABILITY
11.1 Limitation of Liability.
NURSEBUDDY’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) SHALL NOT EXCEED THE HIGHER OF 1000 EUROS OR EXCEED THE AGGREGATE 12 MONTHS’ SERVICE FEES PAID BY CUSTOMER IMMEDIATELY PRECEDING THE EVENT FOR WHICH DAMAGES ARE CLAIMED.
11.2 Exclusion of Consequential and Related Damages.
IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, OR LOSS, DESTRUCTION OR ALTERATION OF DATA AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
11.3 Liability not excluded.
THE LIMITATIONS OF LIABILITY DESCRIBED ABOVE SHALL NOT APPLY TO THE DAMAGES CAUSED BY GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT OR TO EXTENT PROHIBITED BY THE APPLICABLE LAW.
12. TERM AND TERMINATION
12.1 Term of Agreement.
If Customer elects to use the Service for the Trial and do not terminate the use of the Service before the end of that period, this Agreement will continue in force after the period until terminated pursuant to this Section.
After the Customer has subscribed to the Service and the Trial period has expired, the Agreement shall remain in force until further notice unless terminated by Customer upon one (1) month’s prior written notice. We may terminate the Agreement upon one (1) month’s prior written notice.
Monthly Subscription: After Termination Notice, the Agreement will remain in force for one full Subscription period.
Annual Subscription: To terminate the Agreement before the next 12 month Subscription period, Customer must send a notice one month before the new Subscription period starts.
All notifications of termination must be submitted through our Cancellation form available in the online Service.
12.2 Termination for Cause.
A party may terminate this Agreement for cause: (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy, insolvency, liquidation or any kind of arrangement which is likely to affect substantially the ability of the other party to carry out its obligations under this Agreement.
12.3 Payment upon Termination.
In no event shall any termination relieve Customer of the obligation to pay any fees payable to Us for the period prior to the effective date of termination. If We have terminated this Agreement for cause as set forth in Section 12.2, Customer also has the obligation to pay Us through the end of Their remaining term.
12.4 Amendments to the Agreement.
The Service is subject to continuous development and We reserve the right to update and make amendments to this Agreement at any time. If such amendment would have material impact on Customer, we shall provide Customer with at least 30 days’ prior written notice. Customer may terminate this Agreement in accordance with the terms set out herein or when the amendment would take effect.
12.5 Surviving Provisions.
Sections 7, 8 and other terms that by their nature survive the termination of this Agreement shall survive any termination or expiration of this Agreement.
13. GOVERNING LAW AND DISPUTES
13.1 Governing Law.
This Agreement shall be governed exclusively by, and construed exclusively in accordance with, the laws of Finland, without regard to the provisions of conflicts of law of any jurisdiction.
13.2 Dispute Resolution.
Both parties shall use their best efforts to settle by amicable negotiations any disputes which may occur between them arising out of or relating to this Agreement or the existence, validity, termination, interpretation of any term hereof or either party’s performance obligations hereunder. If the parties fail to reach an amicable settlement of their dispute within 30 days of its initiation, either party may refer such dispute to binding arbitration to the Finnish Chamber of Commerce in Helsinki, Finland in accordance with its rules. The arbitration shall be conducted in the English language by a single arbitrator who shall be a professional, legal or otherwise, but shall not be, or have previously been associated with any party to this Agreement. The arbitral award shall be final, binding and non-appealable. Notwithstanding the foregoing, in recognition of the irreparable harm that a violation by either party of its obligation of confidentiality owed to the other party or a breach by Customer of Our intellectual property rights would cause, the non-breaching Party may seek an injunction against such violation or breach in a court of competent jurisdiction. In any such arbitration or injunctive action, the loser shall pay the other party’s reasonable attorney fees.
14. GENERAL PROVISIONS
Notices to You shall be addressed to the email address You provided upon registration to the Service. Notices to Us shall be sent to firstname.lastname@example.org or the post address indicated on our website.
Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery or (ii) the third business day after mailing or after sending by email.
14.2 Relationship of the Parties.
The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties.
14.3 No Third Party Beneficiaries.
There are no third party beneficiaries to this Agreement.
14.4 Waiver and Cumulative Remedies.
No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety, without consent of the other party, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
14.7 Entire Agreement.
This Agreement, including all addenda (if any) thereto, constitute the entire agreement between the parties and supersede all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted.