Hamina Wireless Service General Terms and Conditions
These Hamina Wireless Terms of Service (“Terms”) govern and apply to the use of the Services provided by Hamina Wireless Oy and its affiliates (collectively “Hamina Wireless”) to its customers (including organizations and companies) and users (each a “Customer”) concerning such Customers’ access to and use of the www.hamina.com website and related websites (the “Websites”), Hamina Wireless’ software applications, mobile or other downloadable applications, including without limitation the Hamina Network Planner software-as-a-service (collectively “Applications”), hardware products, and any support services related to the foregoing (“Support Services”). Collectively Hamina Wireless’ Websites, Applications, hardware products, and Support Services are defined herein as the “Services”. Each Customer acknowledges that by accessing and/or using the Services, Customer is deemed to have read and understood these Terms and agrees to be bound by them. These Terms constitute a legally valid and binding agreement between Hamina Wireless and Customer.
Hamina Wireless may, at its sole discretion and at any time, amend these Terms by updating such Terms on the Websites or in the Applications. By continuing to use the Services, User shall be deemed to have read, understood and accepted the amendments to the Terms, and agrees to be bound by them. The amendments to the Terms shall become effective upon their publication.
U.S. ARBITRATION NOTICE: IF YOU ARE A CUSTOMER LOCATED IN THE UNITED STATES, YOU AGREE THAT DISPUTES BETWEEN YOU AND HAMINA WIRELESS ARISING OUT OF OR RELATED TO THESE TERMS WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU WAIVE YOUR RIGHTS TO A JURY TRIAL AND TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION, AS FURTHER SET FORTH HEREIN. THE DISPUTE RESOLUTION SECTION BELOW HAS MORE INFORMATION AND HOW YOU CAN OPT OUT OF ARBITRATION.
1.1 “Agreement” means the agreement between Hamina Wireless and Customer regarding the Services and consisting of the terms and conditions set out in these Terms, in Hamina Wireless’ Subscription Order, or in any related appendices with Customer.
1.2 “Customer Content” means any files, images, recordings, documents, text, data or the like that Customer creates, performs, publishes, displays, provides, transfers, submits, or uploads, directly or indirectly, to the Services.
1.3 ”Effective Date” means the date on which the Customer begins to use the Services or the first day of the term set forth in an applicable Subscription Order, whichever is earlier.
1.4 "Hamina Wireless” means Hamina Wireless Oy, a limited liability company incorporated and existing under the laws of Finland, with business identity code 3203847-6, whose registered office is at c/o Maria 01, Lapinlahdenkatu 16 00180 HELSINKI Uusimaa Finland and Hamina Wireless Oy’s registered U.S. subsidiary located at 1900 Reston Metro Plaza, Suite 600, Reston Virginia 20190
1.5 "Parties" means Hamina Wireless and Customer jointly.
1.6 "Party" means either Hamina Wireless or User individually.
1.7 “Third-Party Products” means any third-party products provided with or incorporated into the Services.
2. PROVISION OF THE SERVICE
2.1 GRANT OF RIGHTS
(a) Subject to payment of the service fees and compliance with these Terms and the Agreement, Hamina Wireless grants the Customer a limited, revocable, non- exclusive, non-transferable, and non-sublicensable right during the term of this Agreement to access and use the Services in accordance with this Agreement.
(a) Hamina Wireless shall provide the Services to Customer.
(b) In the event of an emergency, failure, suspected failure, security breach, legal or legislative change, or other liability, without limiting any other rights of Hamina Wireless hereunder, the Service may be temporarily or permanently interrupted, suspended, or discontinued.
(c) In all other cases, except for those not covered by Section 2.2(b) above, should Hamina Wireless elect to modify or suspend the Service due to a planned change, it will use commercially reasonable efforts to give Customer no less than five (5) business days written notice of any such modification or suspension.
(d) Customer shall use the Service in compliance with the Agreement and these Terms. Failure to pay, breach of these Terms or the Agreement, exposure to breach, infringement, or other security risks, or misuse of the Service by Customer may lead to suspension or denial of access to the Services, at Hamina Wireless’ sole discretion.
(e) Unless separately agreed between the Parties, Customer does not have the right to claim to receive Support Services, consultation services, integration or implementation services, software updates or upgrades, or other services that may relate to the Services. In case such services are included in Hamina Wireless’s service offering, Hamina Wireless shall have the right to charge the applicable fees relating to these services upon written notice to Customer.
2.3 FEES AND PAYMENT
(a) Customer will pay all fees when due according to these Terms and the Agreement.
(b) Except as otherwise agreed between the Parties, all fees are based on Services subscription terms and not on usage.
(i) Payment is due at the point of purchase or as otherwise specified in a Subscription Order.
(ii) Quantities, licenses, or subscription terms purchased cannot be decreased during the relevant subscription term.
(c) If a Subscription Order specifies that payment will be by a method other than a credit card, Hamina Wireless will invoice Customer in advance and otherwise in accordance with the relevant Subscription Order. Unless otherwise stated in the Subscription Order, invoice payments are due net thirty (30) days from the invoice date and payments must be made to Hamina Wireless via ACH bank transfer or wire transfer.
(d) All payments by Customers based in the European Union and U.K. shall be made in Euros (EUR). All payments by Customers based in any other geography, including in the United States, shall be made in U.S. Dollars (USD).
(e) In the event of late payment, Customer’s access to the Services shall be immediately suspended until full payment is received. Should Customer request a payment extension, Hamina Wireless may, in its sole discretion decline or lift a Services suspension and a late payment interest charge in the amount of ten percent (10%) to the current balance owed.
(f) Hamina Wireless is entitled to adjust its fees once every six (6) months by providing the Customer with prior notice of at least fourteen (14) business days before the Effective Date of such change. If the Customer does not accept the change in the fees, Customer shall be entitled to terminate this Agreement on the effective date of the fee change by notifying Hamina Wireless thereof in writing at least five (5) business days before the effective date of such change. The change shall not affect the charges for invoicing periods that have commenced before the effective date of the change.
(g) All fees due under this Agreement shall include public charges determined by the authorities and effective on the date of entry into force of this Agreement, except for value-added tax and other applicable taxes, which shall be added to the fees in accordance with then-current regulations. If the public charges determined by the authorities or their collection basis change due to changes in the regulations or taxation practice, the fees due shall be revised correspondingly by Hamina Wireless.
(h) All fees and payments made to Hamina Wireless under this Agreement are non-refundable. For clarity, in the event of termination of this Agreement, the Customer shall not be entitled to a refund of any fees.
3. CUSTOMER’S OBLIGATIONS
3.1 Customer shall be responsible for all of its activities, and all activities of its users, employees, contractors, agents and representatives, concerning the Service, including the acquisition and functionality of equipment, systems, software, and connections that it may use to integrate the Services to its systems, applications or equipment to access and use the Services.
3.2 Customer shall not, under any circumstances: (i) sublicense, lease, or redistribute access to the Service to a third party; (ii) circumvent or reverse engineer any features, functionalities, logic, source code, or usage restrictions and limits of the Service; (iii) probe, scan, or test the vulnerability of the Service; (iv) use the Service in a manner that accesses or uses any information beyond what Hamina Wireless allows under this Agreement or that breaks, or circumvents any of Hamina Wireless’s technical or administrative security measures; (v) use the Service to create a service substantially similar to the Service; (vi) perform any actions that could damage, disable, disrupt, overburden or impair the Service or its underlying services or systems; (vii) attempt to change, distort or modify the Service or its underlying systems; (viii) transmit any viruses or malware or other computer programming that may damage or detrimentally interfere with the Service or its underlying services or systems; (ix) remove, obscure, or alter any copyright, trademark, or other proprietary rights notices; or (x) use the Service in violation of applicable law, including the transmission, delivery, publication, or use of any Customer Content, software, equipment, or material that may infringe any third-party’s intellectual property, privacy, or publicity rights.
3.3 Furthermore, the Customer acknowledges that the right to use the Service is granted on an individual basis to each licensed user. The Customer shall ensure that dedicated user licenses are neither transferred to other users nor used by individuals other than those to whom they have been initially assigned. In the event that a licensed user leaves the Customer’s company or no longer requires access, the Customer may request Hamina Wireless to release an assigned license. Hamina Wireless reserves the right to release the license if there is a valid reason aligned with the terms and conditions, allowing it to be reassigned to another user by the Customer. The use of generic or group emails as the user name is prohibited.
4. CUSTOMER CONTENT
4.1 When using or accessing the Services, Customer may create, upload, transmit, use, and otherwise process Customer Content
4.2 Customer shall have sole responsibility for the legality, reliability, integrity, accuracy, and quality of the Customer Content and shall indemnify, defend, and hold Hamina Wireless harmless from all uses thereof in connection with the Services and/or consistent with Hamina Wireless’ rights under this Agreement.
4.3 Hamina Wireless shall have the right to generate aggregated, usage, statistic, performance, and other data from Customer Data and by measuring and analyzing the Customer’s Customer Content and use of the Services (collectively “Aggregate Data”). Hamina Wireless may use Aggregate Data for any commercial or public purpose, including without limitation for updates and development of the Service and other services of Hamina Wireless. The intellectual property rights and title, as applicable, to Aggregate Data shall belong to Hamina Wireless. Aggregated Data will not include any data or information that is used to identify, or can be reasonably used to identify, a Customer or any specific person or entity.
4.4 Customer shall ensure that Customer Content does not infringe any third-party intellectual property rights or violate any applicable laws or legislation. In case Hamina Wireless believes, in its reasonable opinion, that any Customer Content violates this Agreement, intellectual property rights, or any applicable law, Hamina Wireless shall have the right to delete such Customer Content without liability.
5. PERSONAL DATA
5.2 Where Hamina Wireless processes personal data originating from the European Economic Area (EEA), U.K. or Switzerland on behalf of the Customer as a data processor, further terms concerning the processing of personal data are provided in the data processing agreement (Appendix 1).
6.1 Neither Party shall disclose to third parties any material or information received from the other Party that is marked as confidential or which should be understood to be confidential and shall not use such material or information for any other purposes than as permitted in this Agreement.
6.2 The confidentiality obligation shall, however, not be applied to material and information which is generally available or otherwise public, or which a Party is obligated to disclose due to applicable mandatory laws, public authority regulations, or court orders.
7. INTELLECTUAL PROPERTY RIGHTS
7.1 All right, title, and any intellectual property rights to and relating to the Service, as well as any related documentation and any copies, modifications, translations, amendments, and derivatives thereof (”Hamina Wireless IPR”) belong to Hamina Wireless or its licensors.
7.2 Intellectual property rights shall be understood in the broadest sense, including but not 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 Hamina Wireless IPR.
7.3 Except as expressly stated herein, this Agreement does not grant the Customer any intellectual property rights in Hamina Wireless IPR, and all rights not expressly granted hereunder are reserved by Hamina Wireless.
7.4 If you submit feedback, suggestions, proposals, comments or other materials relating to the functioning or operation of the Services, including proposed improvements, modifications or changes thereto (collectively “Feedback”), you understand and agree that Hamina Wireless (i) has no obligation to keep your Submissions confidential; (ii) has no obligation to return your Submissions or respond in any way; and (iii) may use your Submissions for any purpose, including commercial purposes, in any way without notice or compensation to you. Customer hereby assigns to Hamina Wireless on Customer's behalf, and on behalf of its employees, contractors, representatives, and/or agents, all right, title, and interest in the Feedback.
8. TERM AND TERMINATION
8.1 The Agreement shall enter into force upon Customer’s acceptance of these Terms and any Agreement and will remain in force for consecutive terms as defined in the applicable Subscription Order (“Term”) and shall automatically renew unless terminated by either Party, at latest, two (2) months before the end of the then-current current Term.
8.2 Furthermore, either Party may terminate this Agreement with immediate effect in whole or in part upon written notice to the other Party in the event of any of the following:
(a) insolvency event of the other Party, which, for the purposes of this Agreement, means any corporate action, legal proceedings, or other procedure or step taken by any person in relation to the suspension of payments, a moratorium of any indebtedness, insolvency, bankruptcy, liquidation, winding-up or dissolution (whether voluntary or involuntary), administration, business restructuring (by way of voluntary arrangement, scheme of arrangement or otherwise), the appointment of a liquidator, receiver, administrator or another similar officer, or any analogous procedure or step; or
(b) material breach by a Party of its obligations which, the breaching Party fails to remedy within thirty (30) calendar days following the terminating Party’s written notice thereof.
8.3 Hamina Wireless shall be entitled to terminate the Agreement if the Customer has not paid the fees due immediately under this Agreement, without requesting and agreeing to a payment extension (to which a late payment interest charge may be applied in the amount of ten percent (10%) of the current balance owed).
8.4 Hamina Wireless may terminate the Agreement and any Subscription Order at any time, including for its convenience, upon written notice to Customer (including by email).
8.5 Upon termination of this Agreement, the Customer will promptly cease using, delete, and remove all instances of the Services. The termination of this Agreement does not entitle the Customer to any compensation or refunds of any fees or payments made to Hamina Wireless or due hereunder.
8.6 This Section 8.6 and Sections 1, 2.3, 3, 4.3, 4.4, 5, 6, 7, 8.5, and 9 through 14 survive any termination or expiration of this Agreement. No other provisions of this Agreement survive the expiration or earlier termination of this Agreement.
9.1 Hamina Wireless Indemnification. Hamina Wireless shall indemnify, defend, and hold harmless Customer from and against any and all losses, damages, liabilities, costs (including reasonable attorneys’ fees) (“Losses”) incurred by Customer resulting from any third-party claim, suit, action, or proceeding (“Third-Party Claim”) that the Services infringes or misappropriates such third party’s United States patents, copyrights, or trade secrets, provided that Customer promptly notifies Hamina Wireless in writing of the claim, cooperates with Hamina Wireless, and allows Hamina Wireless sole authority to control the defense and settlement of such claim. If such a claim set forth in Section 9.1 is made or appears possible, Customer agrees to permit Hamina Wireless, at Hamina Wireless’s sole discretion, to (A) modify or replace the Services, or component or part thereof, to make it non-infringing, or (B) obtain the right for Customer to continue use. If Hamina Wireless determines that neither alternative is reasonably available, Hamina Wireless may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Customer and Hamina Wireless shall refund any pro rata portion of fees paid by Customer for the terminated portion of the Term (as defined in the applicable Subscription Order). This Section 9.1 will not apply to the extent that the alleged infringement arises from: (A) use of the Services in combination with data, software, hardware, equipment, or technology not provided by Hamina Wireless or authorized by Hamina Wireless in writing; (B) modifications to the Services not made by Hamina Wireless; (C) Customer Content; or (D)Third-Party Products.
9.2 Customer Indemnification. Customer shall indemnify, hold harmless, and, at Hamina Wireless’s option, defend Hamina Wireless from and against any Losses resulting from any Third-Party Claim that the Customer Content, or any use of the Customer Content in accordance with this Agreement, infringes or misappropriates such third party’s intellectual property rights and any Third-Party Claims based on Customer’s or any of Customer’s users, employees, contractors, agents, or representatives (i) negligence or willful misconduct; (ii) use of the Services in a manner not authorized by this Agreement; (iii) use of the Services in combination with data, software, hardware, equipment, or technology not provided by Hamina Wireless or authorized by Hamina Wireless in writing; or (iv) modifications to the Services not made by Hamina Wireless.
9.3 The indemnity obligations under this Section 9 are contingent upon the applicable indemnified party: (i) providing prompt notice to the applicable indemnifying party of such claim; but the failure to so notify the indemnifying party will not relieve it of liability under this Section 9 except to the extent the indemnifying party is prejudiced by such failure, (ii) cooperating with the applicable indemnifying party (at the indemnifying party’s sole expense) in the defense of such claim, and (iii) giving the applicable indemnifying party the right to control the defense and settlement of any such claim, except that the indemnifying party shall not enter into any settlement that affects the indemnified party's rights or interest without such party's prior written approval.
9.4 Indemnity Cap. EXCEPT AS LIMITED BY APPLICABLE LAW, HAMINA WIRELESS’ TOTAL AND AGGREGATE INDEMNITY OBLIGATIONS UNDER THIS AGREEMENT SHALL NOT EXCEED THREE (3) TIMES THE TOTAL AMOUNTS PAID BY CUSTOMER TO HAMINA WIRELESS UNDER THIS AGREEMENT IN THE SIX (6) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE THIRD-PARTY CLAIM.
9.5 Sole Remedy. THIS SECTION 9 SETS FORTH CUSTOMER’S SOLE REMEDIES AND HAMINA WIRELESS’ SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
10. WARRANTIES, LIMITATION OF LIABILITY
10.1 HAMINA WIRELESS STRICTLY DISCLAIMS ALL WARRANTIES WITH RESPECT TO ANY THIRD-PARTY PRODUCTS OR SERVICES INCORPORATED WITH, ACCESSED BY, OR RELIED UPON BY THE SERVICES. THE SERVICES AND HAMINA WIRELESS IPR ARE PROVIDED “AS IS” AND HAMINA WIRELESS HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. HAMINA WIRELESS SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. HAMINA WIRELESS MAKES NO WARRANTY OF ANY KIND THAT THE HAMINA WIRELESS IPR, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.
10.2 Nothwithstanding the foregoing, each Party warrants that it is entitled to enter into this Agreement and grant the rights set forth under these Terms and the Agreement.
10.3 IN NO EVENT WILL HAMINA WIRELESS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY, OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER HAMINA WIRELESS WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE.
10.4 IN NO EVENT WILL HAMINA WIRELESS’ AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID BY CUSTOMER TO HAMINA WIRELESS UNDER THIS AGREEMENT IN THE SIX (6) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATIONS WILL NOT APPLY TO THE EXTENT APPLICABLE STATE LAW PROHIBITS THE EXCLUSION OR LIMITATION OF PUNITIVE, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES
11. SEVERANCE; NO WAIVER
11.1 If any provision of this Agreement is declared by any judicial or other competent authority to be void, illegal, or otherwise unenforceable, the remaining provisions of this Agreement shall remain in full force and effect.
11.2 No failure on Hamina Wireless’ part to exercise or to enforce any right given under the Terms, Agreement, or at law, or any of Hamina Wireless’ custom or practice at variance with the terms of the Terms or the Agreement will constitute a waiver of Hamina Wireless’ rights under the Terms or Agreement or operate so as to prevent the exercise or enforcement of any such right at any time. No right, power or remedy in the Terms or Agreement conferred upon or reserved for us is exclusive of any other right, power or remedy available to us.
12.1 Hamina Wireless shall be entitled to assign all or any of its rights or obligations hereunder in whole or part to an affiliate or successor or a purchaser or acquirer of its business assets without the Customer’s prior consent.
12.2 Customer shall not be entitled to assign any of its rights or obligations hereunder in whole or part without Hamina Wireless’s prior written consent. Any purported assignment in violation of this section shall be void and of no effect.
13. APPLICABLE LAW AND DISPUTE RESOLUTION
13.1 Outside the United States. For Customers located outside of the U.S.(including those located the European Economic Area (“EEA”), United Kingdom, or Switzerland) This Agreement shall be governed by and interpreted in accordance with the laws of Finland, excluding any provisions on choice of law. For Customers located outside of the U.S.(including those located the European Economic Area (“EEA”), United Kingdom, or Switzerland), Hamina Wireless and Customer agree to seek to attempt to resolve any possible disputes in amicable negotiations. If such negotiations do not lead to settlement within one (1) month of the date the dispute first arose, any dispute, controversy, or claim arising out of or in connection with this Agreement shall be finally settled by arbitration in accordance with the Arbitration Rules of the Finland Chamber of Commerce. The language of the arbitration shall be English. The seat of the arbitration shall be Helsinki, Finland. The number of arbitrators shall be one (1).
13.2. United States. IF CUSTOMER IS A U.S. RESIDENT, PLEASE READ THIS SECTION CAREFULLY BECAUSE IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT. THIS SECTION REQUIRES YOU TO AGREE TO RESOLVE ALL DISPUTES BETWEEN US THROUGH BINDING INDIVIDUAL ARBITRATION. If you believe you have a dispute or claim against us arising out of your use of the Services or under these Terms, you agree to first discuss the matter informally with us for at least 30 days. To do that, you must give us written notice, which will include your full name and contact information, the nature and basis giving rise to your dispute or claim and your proposed resolution, sent to 1900 Reston Metro Plaza, Suite 600, Reston Virginia 20190. If you are located in, are based in, have offices in, or do business in a United States jurisdiction in which this section is enforceable, you understand and agree that any dispute, claim, or controversy arising under or in connection with these Terms, including your use and access to the Services or any other content, including, but not limited to, claims as to whether any services rendered by Hamina Wireless or persons employed or engaged by Hamina Wireless were unnecessary or unauthorized or were improperly, negligently, or incompetently rendered, shall be finally and exclusively resolved by binding arbitration under the American Arbitration Association’s (“AAA”) Commercial Arbitration Rules and Mediation Procedures and Consumer-Related Disputes Supplementary Procedures, and not by a lawsuit or resort to court process. Each Party retains the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights. It is your responsibility to pay any AAA filing, administrative and arbitrator fees as set forth in the AAA Rules. The Parties further agree that the arbitrator, and not any federal, state or local court or agency, shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability or formation of this agreement to arbitrate. Any such controversy or claim shall be arbitrated on an individual basis, unless both Parties otherwise agree in writing. The arbitration shall be held in Fairfax County, Virginia, U.S.A. This arbitration provision is governed by the U.S. Federal Arbitration Act. You can opt out of this arbitration provision within 30 days of the date that you first agreed to these Terms. To opt out, you must send your name, residence address and email address used for your Hamina Wireless account, and a clear statement that you want to opt out of this arbitration provisions to 1900 Reston Metro Plaza, Suite 600, Reston Virginia 20190 U.S.A. Should you choose to withdraw from the arbitration provision, all other provisions of the Terms shall remain in full force and effect. If for any reason a claim proceeds in court rather than arbitration, each Party waives any right to a jury trial. You agree to the personal jurisdiction by and venue in the state courts of Fairfax County in the State of Virginia and waive any objection to such jurisdiction or venue.
13.3 CUSTOMER ACKNOWLEDGES AND AGREES THAT BOTH PARTIES TO THE TERMS WAIVE THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING.
14.1 All notices, requests, consents, claims, demands, waivers, and other communications hereunder must be in writing, including by email, and if to Hamina Wireless must be sent or copied to email@example.com in order to be effective. Except as otherwise provided in this Agreement, a notice is effective only: (i) upon receipt by the receiving Party; and (ii) if the Party giving the notice has complied with the requirements of this Section.
15. ELECTRONIC SIGNATURE
15.1 You acknowledge that by using the Service, you are indicating your intent to sign the relevant document or record acknowledging your consent to receive all Hamina Wireless communications through electronic communications (i.e., email), and that this consent shall constitute your signature. In addition, you are confirming that (1) your system meets the requirements set forth above, (2) you agree to receive disclosures, communications, and documents electronically, and (3) you are able to access and retain information presented at our website or via electronic communication. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.
APPENDIX 1 DATA PROCESSING AGREEMENT
This Data Processing Agreement (“DPA”) is a part of the agreement for the provision of the Service whose terms and conditions have been laid out in the Service General Terms and Conditions or such other agreement (“Agreement”) that may have been specifically concluded between Hamina Wireless Oy (“Hamina Wireless”) and the customer (“Customer”).
Hamina Wireless and Customer are each individually referred to as the Party and together as the Parties.
1.1 This DPA forms an integral part of the Agreement and shall apply to all processing of personal data under the Agreement. Where applicable and when this DPA does not explicitly state otherwise, the terms of the Agreement, such as governing law and dispute resolution, shall be applied to this DPA. If the Agreement or any other document regulating the relationship between Hamina Wireless and the Customer as set out in the Agreement contains provisions that conflict with this DPA, this DPA shall have precedence.
1.2 The Customer shall be considered the controller under the EU regulation 2016/679 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (“GDPR”) and Hamina Wireless processes, by providing the Service to the Customer, the personal data on behalf of Customer as a processor for the purposes of the Agreement during the term thereof. If and to the extent the Customer acts as a processor in relation to other controllers, Hamina Wireless shall act as a subprocessor under this DPA. As used herein, personal data means such personal data that Hamina Wireless processes on behalf of the Customer as the Customer’s processor or subprocessor.
1.3 The Customer is responsible for the lawful processing and collection of personal data in compliance with the GDPR and other laws, regulations, and directives pertaining to the processing or collection of personal data. Hamina Wireless will not monitor the Customer’s processing or collection of personal data in the Service. The Customer shall be responsible for having the required rights and necessary permissions from third parties to use and disclose personal data for the purposes set out in the Agreement. The Customer shall ensure that the Customer is entitled to transfer the relevant personal data to Hamina Wireless so that Hamina Wireless may lawfully process, use and transfer the personal data in accordance with the Agreement and this DPA.
1.4 The subject matter, categories, and types of data as well as other details of the processing are specified in Schedule 1 of this DPA (Description of the Processing Operations).
2. PROCESSING OF PERSONAL DATA
2.1 Hamina Wireless shall only process personal data in accordance with this DPA and documented instructions from Customer unless required to do otherwise under European Union or Member State law to which Hamina Wireless is subject. In such case, Hamina Wireless shall inform the Customer of that legal requirement before processing unless that law prohibits such information on important grounds of public interest.
2.2 Hamina Wireless may not use the Customer’s personal data for any other uses than for the provision of the Services and as otherwise instructed by the Customer. Hamina Wireless shall process information disclosed to it by the Customer in accordance with the Agreement and according to written instructions or guidelines given to it by the Customer. The Customer’s instructions must be commercially reasonable, compliant with applicable data protection legislation and regulations, and consistent with the Agreement. In case Hamina Wireless detects that any instruction given by the Customer is non-compliant with European Union or member state law to which Hamina Wireless is subject, Hamina Wireless shall not be obliged to comply with such instruction and shall inform the Customer of that legal requirement.
2.3 In case the Customer’s instructions require additional measures or work to be performed by Hamina Wireless, Hamina Wireless has the right to charge an hourly consulting fee from the Customer for complying with such Customer’s instructions in accordance with Hamina Wireless’s then-current fee for consulting services, subject to the Customer’s prior approval of such additional costs.
3. DATA SECURITY
3.1 Hamina Wireless ensures that it shall implement and maintain appropriate technical and organizational security measures to protect the personal data within its area of responsibility, in order to safeguard the personal data against unauthorized or unlawful processing or access and against accidental loss, destruction of personal data, taking into account the costs of implementation as well as the nature, scope, context and purposes of processing of personal data carried out by Hamina Wireless hereunder as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons. Such measures shall include, where appropriate and relevant for each processing action: (i) the pseudonymization and encryption of personal data; (ii) the ability to ensure the ongoing confidentiality, integrity, availability, and resilience of processing systems and Service; (iii) the ability to restore the availability and access to personal data in a timely manner in the event of a physical or technical incident; (iv) a process for regularly testing, assessing, and evaluating the effectiveness of technical and organizational measures for ensuring the security of the processing; (v) the ongoing confidentiality, integrity, availability, resilience, and restoration of all processing systems and services in which personal data is stored or processed; (vi) the pseudonymization and encryption of personal data and communications containing personal data when it is appropriate and necessary to maintain the integrity and confidentiality of the personal data.
3.2 Hamina Wireless also ensures that the persons processing personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
4. ASSISTANCE OBLIGATIONS
4.1 Taking into account the nature of the processing, Hamina Wireless shall assist the Customer with appropriate technical and organizational measures, insofar as this is possible, for the fulfillment of the Customer’s obligation to respond to requests for exercising the data subject’s rights under Chapter III of the GDPR.
4.2 Taking into account the nature of the processing and the information available to Hamina Wireless, Hamina Wireless shall further provide the Customer with assistance in ensuring compliance with the Customer’s obligations set out in Articles 32 to 36 of the GDPR (e.g. to perform security and data protection impact assessments, breach notifications and prior consultations of the competent supervisory authority).
4.3 In case such assistance requires measures from Hamina Wireless, Hamina Wireless has the right to charge an hourly consulting fee from the Customer for handling such assistance requests in accordance with Hamina Wireless’s then-current fee for consulting services, subject to the Customer’s prior approval of such additional costs.
5. INTERNATIONAL TRANSFERS
5.1 The Customer accepts that Hamina Wireless may transfer personal data to its subprocessors outside the European Economic Area (“EEA”) in the context of the provision of the Service. Before any personal data is transferred by Hamina Wireless from the EEA for processing in any country outside the EEA that is not recognized by the European Commission as providing an adequate level of protection for personal data, Hamina Wireless shall comply with Chapter V of the GDPR and use transfer tools which ensure appropriate safeguards for protection of the personal data, including (but not necessarily limited to) entering into the standard contractual clauses for processor-to-processor transfers adopted by the European Commission (by the implementing decision (EU) 2021/914 and as amended) and carrying out a transfer impact assessment.
6.1 The Customer or an auditor appointed by the Customer shall with the assistance of Hamina Wireless have the right to audit the processing activities of Hamina Wireless under this DPA to assess the compliance of Hamina Wireless with its contractual obligations under this DPA and applicable data protection legislation during ordinary business hours of Hamina Wireless and with 30 days prior written notice. If Hamina Wireless’s employees or other representatives participate in such audits at the request of the Customer, the Customer shall compensate Hamina Wireless for the expenses caused by such participation. Otherwise, each Party shall bear its own costs for any such audit. Where an audit may lead to the disclosure of business or trade secrets of Hamina Wireless or threaten intellectual property rights of Hamina Wireless, the Customer shall employ an independent expert to carry out the audit, and the expert shall agree to be bound by confidentiality to Hamina Wireless’s benefit.
6.2 Where an audit may, in Hamina Wireless’s sole opinion, lead to the disclosure of business or trade secrets of Hamina Wireless or threaten the intellectual property rights of Hamina Wireless, the Customer shall employ an independent auditor, that is not a competitor of Hamina Wireless, to carry out the audit, and the auditor shall agree to be bound to confidentiality to Hamina Wireless’s benefit.
6.3 Hamina Wireless makes available to the Customer, at the Customer’s request, information necessary to demonstrate compliance with the GDPR. In case the Customer’s request requires measures or work to be performed by Hamina Wireless, Hamina Wireless has the right to charge an hourly consulting fee in accordance with its then-current pricing for consulting services for handling such requests.
7.1 The Customer gives its general authorization to allow Hamina Wireless to engage subcontractors as subprocessors to process personal data in connection with the provision of the Service.
7.2 Hamina Wireless is free to choose and change its subprocessors. Upon request, Hamina Wireless shall inform the Customer of the subprocessors currently involved. In case there is a later change of a subprocessor (addition or replacement), Hamina Wireless shall notify the Customer of such change, thereby allowing the Customer the opportunity to object to such change. If Hamina Wireless is not willing to change the subprocessor the Customer has objected to, both Parties shall have the right to terminate the Agreement and this DPA.
7.3 Where Hamina Wireless engages a subprocessor for carrying out specific processing activities on behalf of the Customer, the same data protection obligations as set out in this DPA shall be included in the DPA between Hamina Wireless and that subprocessor. Where a subprocessor fails to fulfill its data protection obligations, Hamina Wireless shall remain liable to the Customer for the performance of the subprocessor’s obligations as further stipulated in the Agreement.
SCHEDULE 1 DESCRIPTION OF THE PROCESSING OPERATIONS
1. CATEGORIES AND TYPES OF PERSONAL DATA
1.1 In order to provide good quality service, Hamina Wireless will collect and process following user information: user name, user email address, country, phone number, company name, nature of use of the product (for example design of networks for own use, design of networks as a service).
2. DURATION OF THE PROCESSING
2.1 Personal data shall be processed as long as the Agreement with the Customer remains in force, unless instructed otherwise by the Customer in accordance with the DPA. Following expiration of the Agreement Hamina Wireless will delete the personal data within a reasonable time after the end of the customer relationship.
3.1 Microsoft Operations Ireland Limited
Hamina Wireless Oy
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