Updated 15/09/2020
These General Terms of Service ("Terms") will be applied to an agreement between Digital Factory Stream Ltd, a Finnish private limited company with Business ID 2314472-8 having its registered address at Töölönkatu 27 A 6, FI-00260 Helsinki, Finland ("Yemma"), and a customer ("Customer") to whom Yemma provides cloud-based storage and software services for the Customer's commercial purposes ("Service"). In these Terms, Yemma and Customer are referred to jointly as the “Parties” and individually as a “Party”. The Parties expressly acknowledge that the Service is neither intended nor fit for use by consumers.
An agreement is formed between the Parties when Yemma receives an appropriately filled-in registration or order form ("Order") which the Customer has submitted through a registration and/or purchasing procedure on Yemma's website. In connection with the registration procedure the Customer will create a service account. Any referral herein to “Agreement” includes the Order, service descriptions attached or referred to in the Order and these Terms. The AUP is available on Yemma’s website.
Yemma shall provide the Customer with the Service, which is specified in the Order. If the provided Service differs from the specifications, Yemma shall correct the Service promptly after a notification by the Customer.
Yemma will make reasonable efforts to keep the Service
operational. However, certain technical difficulties or
maintenance may, from time to time, result in temporary
interruptions. To the extent permissible under applicable law,
Yemma reserves the right, periodically and at any time, to modify
or discontinue, temporarily or permanently, functions and features
of the Service, with or without notice, all without liability to
Customer, except where prohibited by law, for any interruption,
modification, or discontinuation of the Service or any function or
feature thereof.
Customer shall understand, agree, and accept that Yemma has no
obligation to maintain, support, upgrade, or update the Service,
or to provide all or any specific content through the Service.
This section will be enforced to the extent permissible by
applicable law. Yemma may, from time to time, remove any such
Content without notice to the extent permitted by applicable law.
The Service is provided “as is” and “as available”
without express or implied warranty or condition of any kind.
Yemma shall provide the Customer's users with technical support with respect to the Service through the means described under the Support page on Yemma’s website. Contact details, service hours and support fees (where applicable) are provided on Yemma's website.
The Customer will be responsible for activities that occur under the Customer's service account, including actions taken by the Customer's employees and other representatives (“User”) as well as their compliance with Yemma’s user instructions. The Customer must promptly notify Yemma if the Customer suspects that an unauthorised third party is using, or may have access to, the Service or the Customer's service account.
The Customer must comply with third-party software license terms if the use of such software is offered by Yemma for the provision of the Service.
There are several subscription tiers available for the Customer
based on the amount of monthly data transmission covered by the
subscription fee. The subscription tiers are specified on Yemma’s
website.
If the monthly data transmission limit of the
subscription tier chosen by the Customer is exceeded, the
subscription tier is automatically changed to a higher
subscription tier and the remainder between the subscription fee
payable for such higher subscription tier and the subscription fee
already paid by the Customer for said month is charged from the
Customer in connection with the payment of the following month’s
subscription fee in accordance with Section “Prices and payment”.
The Customer is informed via email before the data transmission
limit is reached and Customer is entitled to terminate this
Agreement and the subscription to the Service at any time as
described below.
Yemma may from time to time offer
trials of the Service for a specified period without payment.
Yemma reserves the right, in its sole discretion, to determine
Customer’s eligibility for a free trial and, subject to applicable
laws, to withdraw or to modify an offer trial at any time without
prior notice and with no liability, to the greatest extent
permitted under the law. For a free trial of the Service, Yemma
may require Customer to provide payment details to start the
trial. At the end of such trial, Yemma may automatically start to
charge the applicable subscription fee for the Service immediately
after the end of the free trial in accordance with Section “Prices
and payment” and in accordance with the price list on Yemma’s
website. The automatically charged subscription fee is based on
the subscription tier chosen by the Customer in connection with
the Order. The applicable subscription to the Service must be
cancelled through Customer’s account’s subscription page, or the
Service must be terminated in its entirety, before the end of the
trial period in case Customer does not accept the applicable
prices available on Yemma's website.
Customer shall ensure that the authorised Users use the Service in
compliance with 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.
Subject to due subscription to the Service and compliance with the Agreement, Yemma grants to Customer a non-exclusive, non-transferable and limited right to enter and use the Service.
The Customer is responsible for making appropriate back-up copies of the Customer Data (as defined below) stored in the Service. Such back-up copies shall be stored outside the Service.
Yemma is entitled to develop its services and business offerings. In case of a change in the Service, Yemma will notify the Customer in advance. If Yemma considers that a change will have a material effect in the Service, Yemma will notify the Customer at least 30 days before the change will be effected.
The subscription fees of the different subscription tiers and the
prices of additional services are specified on Yemma’s website.
Unless otherwise agreed, Yemma charges the Customer monthly in
advance in accordance with Yemma's price list valid at the time.
The Customer shall pay the monthly subscription fee on a pre-paid
basis after the Customer has submitted the Order. The Customer
shall be charged a sum equaling to a single month’s subscription
fee in connection with the subscription to the Service whereupon
the subscription fee shall be charged every month in advance.
Any possible additional services ordered by the
Customer will be charged from the Customer in arrears together
with the monthly base subscription fee. Applicable value added tax
and other duties will be added to the prices unless the prices are
specified VAT inclusive.
The debited subscription fee
or the fees for any additional services are not refundable unless
otherwise decided by Yemma at its sole discretion.
Payment of the subscription fee shall be conducted with a valid
credit card by submitting the relevant credit card information, as
required in the Service, in connection with the Order. If a
payment cannot be charged successfully, due to e.g. expiration of
the registered credit card or insufficient funds and the Customer
does not provide Yemma with valid credit card information, Yemma
has the right to suspend the Customer’s access to the Service
until valid credit card information has been provided by the
Customer.
The applicable subscription fee for the Service will be charged
from the Customer’s credit card. The date of the charging shall be
defined on the basis of the date of the commencement of the
subscription to the Service (after the free trial-period, if
applicable). In some cases, the payment day may change, for
example if it has not been possible to charge the Customer’s
subscription fee due to insufficient funds.
After the conclusion of an invoicing agreement between Yemma and
the Customer, payment shall be made by the Customer against
invoices issued by Yemma. Yemma shall invoice the agreed base
subscription fee three months in advance together with possible
additional services already ordered. The payment term is 14 days
net from the date of invoice. Notices relating to invoices or
payments hereunder shall be given in writing within 7 days from
the date of receipt of the relevant invoice.
Interest on overdue payments shall accrue according to the Finnish
Interest Act. The Customer shall be responsible for the reasonable
costs incurred by Yemma when collecting overdue fees.
Without prejudice to its other rights, Yemma may temporarily
disable the Customer’s access to the Service in the event the
Customer has overdue payments in excess of 30 days.
When subscribing to the Service, Customer shall provide true, accurate and complete information as prompted by the Order and update such information when required. Please note that this Agreement only covers 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 or other agreement or license. Yemma does not assume any liability in regard to use of such third-party services and platforms, whether or not they are linked to the Service.
Customer is not permitted and not entitled to permit the Users or any other parties to do any of the following:
Yemma will defend Customer against any claim that the Service
infringes the intellectual property rights of a third party and
pay any damages finally settled or awarded in a trial to the third
party with respect to any such claim, provided that Yemma is
notified promptly in writing of the claim and given sole control
of the defense and all related settlement negotiations in relation
to the claim as well as reasonable assistance and necessary
authorisations from Customer to defend or settle the claims on
behalf of Customer.
At any time, if Yemma reasonably deems that any part of the
Service infringes the intellectual property rights of any third
party, Yemma has the right at its own expense to (i)
modify/replace the Service to eliminate the infringement in such a
manner that the modified Service complies with this Agreement, or
(ii) procure to Customer a right to use the Service. If none of
the aforementioned alternatives are reasonably possible, Yemma
shall have the right to terminate this Agreement and Yemma shall
refund to Customer the prices paid for the Service by Customer
less the price corresponding the time Customer has been able to
use the Service in accordance with this Agreement.
Yemma shall, however, not be liable for any infringement or claim
thereof in the event the claim (i) is made by any affiliates of
Customer; (ii) has resulted from Customer’s or Customer’s
supplier’s or User’s use or modification of or addition to the
Service; (iii) could have been avoided by using the latest version
of the Service provided by Yemma; or (iv) is not related to the
Service or any part of the Service for which Yemma is not
responsible for pursuant to this Agreement or statutory
requirements.
This section contains Yemma’s entire liability and Customer’s sole
and exclusive remedy in case of intellectual property rights
infringements.
Customer shall indemnify, defend, and hold Yemma harmless from and
against all liabilities, damages and costs (including settlement
costs and reasonable attorneys’ fees) arising out of any breaches
of this Agreement by Customer, Customer’s personnel and/or Users.
Customer data shall mean all Customer’s data that a User submits
to the Service (“Customer Data”) or the data Customer submits to a
third-party service or platform which might be accessed by the
Service, subject to and on the basis of the permissions or
consents Customer has granted.
Customer agrees that Yemma does not assume any liability or
responsibility in respect to any Customer Data, with the
exceptions relating to Personal Data as set forth in Section Data
Processing below. Customer shall at all times ensure that Customer
Data does not infringe any third party intellectual property
rights or violate any applicable laws or legislation. Customer
shall not upload any illegal, offensive, threatening, libellous,
defamatory, or otherwise inappropriate data to the Service. For
clarity, Yemma is not responsible and shall not be held liable for
any Customer Data, nor does it endorse any opinion contained in
any Customer Data.
Aside from the rights specifically granted herein, Customer
retains ownership of all rights, including intellectual property
rights, in the Customer Data.
In order to provide the Service, Yemma may process personal data
on behalf of the Customer as a data processor for the purposes of
providing the Service.
Yemma processes certain personal data also as a data controller.
Such personal data includes, inter alia, data of the Customer’s
contact persons, invoicing details and other personal data of
Customer’s contact persons which Yemma processes in order to
maintain the customer relationship. The requirements relating to
the personal data Yemma processes as data controller are set out
in our Privacy Policy available on Yemma’s website.
In this section, “Personal Data” refers to any information
relating to an identified or identifiable natural person the
Customer enters into the Service and Yemma processes on behalf of
the Customer in the course and within the scope of providing the
Services.
In connection with the use of the Service, the Customer may
transfer various data to Yemma for processing on behalf of the
Customer. Such data might include Personal Data. The Customer
shall be considered as the sole data controller and Yemma as the
sole data processor with respect to such data. The following terms
and conditions set forth in this section concern the data
processing activities of Yemma as a data processor with respect to
the Personal Data it processes on behalf of the Customer.
General requirements relating to processing of Personal Data The
Customer shall be responsible for the lawful collection,
processing and use, and for the accuracy of the Personal Data, as
well as for preserving the rights of the individuals concerned. If
and to the extent legally required, the Customer shall inform the
individuals concerned regarding the processing of their Personal
Data by Yemma and shall obtain their consent if necessary.
The Personal Data processed by Yemma on behalf of the Customer may
include e.g. Personal Data of the Customer’s employees and
end-customers of Customers or any other data subjects, such as
contact details and image and likeness of the afore mentioned data
subjects. The Customer acknowledges that due to the nature of the
Service, Yemma cannot control and has no obligation to verify
Personal Data the Customer transfers to Yemma for processing on
behalf of the Customer when the Customer uses the Service. The
Customer ensures that the Customer is entitled to transfer the
Personal Data to Yemma so that Yemma may lawfully process the
Personal Data on behalf of the Customer in accordance with this
Agreement.
Yemma shall not use Personal Data for any purpose other than that
of rendering and providing the Service and will not assert liens
or other rights over or sell or disclose the Personal Data to any
third parties, without the Customer’s prior written approval.
Yemma shall process Personal Data in accordance with this
Agreement and documented instructions from the Customer. The
Customer’s instructions must be commercially reasonable, compliant
with applicable data protection laws and consistent with this
Agreement. Yemma shall not be obliged to verify whether any
instructions given by the Customer are consistent with applicable
laws, as the Customer is responsible for such compliance
verification of its instructions. However, if Yemma detects that
any instruction given by the Customer is non-compliant with the
requirements of any data protection legislation applicable to
Yemma’s operations, Yemma shall inform the Customer in writing.
Yemma and the Customer shall comply with 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
(“Regulation”) and any applicable European or foreign data
protection laws as amended, as well as data protection
authorities’ orders and guidelines.
Yemma and the Customer shall implement and maintain appropriate
technical and organizational security measures to protect the
Personal Data within their area of responsibility, in order to
safeguard the Personal Data against unauthorised or unlawful
processing or access and against accidental loss, destruction or
damage. Such measures include where necessary and appropriate,
taking into account the state of the art, the costs of
implementation and the nature, scope, context and purposes of
processing as well as the risk of varying likelihood and severity
for the rights and freedoms of natural persons the following
measures:
To respond to requests from individuals exercising their rights as
foreseen in applicable data protection law, such as the right of
access and the right to rectification or erasure, the Customer
shall primarily use the corresponding functions of the Services,
such as the control panel of the Service. Yemma shall provide the
Customer with commercially reasonable assistance, without undue
delay, taking into account the nature of the processing. Yemma
shall further provide the Customer with commercially reasonable
assistance in ensuring compliance with the Customer’s obligations
to perform security and data protection assessments, breach
notifications and prior consultations of the competent supervisory
authority, as set out in the applicable data protection law,
taking into account the nature of the processing and the
information available to Yemma. In case such assistance requires
extensive measures from Yemma, the Customer shall pay additional
reasonable remuneration to Yemma for handling such assistance
requests.
In addition, Yemma shall, and shall procure that its personnel
(including its subcontractors’ personnel) shall:
The Customer accepts that Yemma may have Personal Data processed and accessible by its subprocessors outside the Customer’s country of domicile to provide the Service. In case the processing is subject to any EU data protection law and Personal Data is transferred from the European Economic Area (“EEA”) to a subprocessor 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, Yemma provides for appropriate safeguards by standard contractual clauses, adopted or approved by the European Commission and applicable to the processing by the non-EEA subprocessor or by any other appropriate safeguard as foreseen under Regulation.
The Customer shall have the right to audit the facilities and
processing activities of Yemma under this Agreement to examine the
level of protection and security provided for Personal Data
processed under this Agreement and to assess the compliance of
Yemma with the terms and conditions relating to Personal Data set
out herein. 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 Yemma or threaten intellectual property rights of
Yemma, the Customer shall employ an independent expert to carry
out the audit, and the expert shall agree to be bound to
confidentiality to Yemma’s benefit.
The Customer gives its general authorization to allow Yemma to involve Yemma’s affiliated companies and other subcontractors as subprocessors to process Personal Data in connection with the provision of the Service, to the extent such appointment does not lead to non-compliance with any applicable law or Yemma’s obligations under this Agreement. Yemma ensures that the involved subprocessors are properly qualified, will be under a data processing agreement with Yemma, and comply with data processing obligations similar to the ones which apply to Yemma under this Agreement. Yemma shall be liable towards the Customer for the processing of Personal Data carried out by Yemma’s subprocessors.
Yemma is free to choose and change its sub processors. Upon request, Yemma shall inform the Customer of subprocessors currently involved. In case there is a later change of subprocessor (addition or replacement), Yemma shall notify the Customer of such change. In case the Customer objects such change of subprocessor on reasonable grounds, the Customer has the right to request change of the subprocessor. If Yemma is not willing to change the subprocessor the Customer has objected, the Customer shall have the right to terminate the Service and this Agreement.
Yemma shall, without undue delay after having become aware of it, inform the Customer in writing about any data breaches relating to Personal Data and any other events where the security of Personal Data processed on behalf of the Customer has been compromised. Yemma’s notification about the breach to the Customer shall include at least the following:
Yemma shall not take any action to intentionally erase any
Personal Data processed on behalf of the Customer, without the
Customer’s explicit request.
Personal Data shall be processed under this Agreement until the
Customer has ceased to use the Service.
Within a reasonable time after the termination or expiry of this
Agreement, or after the Customer has permanently ceased to use the
Service, Yemma shall permanently delete Personal Data from its
storage media, except to the extent that Yemma is under a
statutory obligation to continue storing such Personal Data. On
the Customer’s request, Yemma shall confirm the deletion in
writing. The obligation to delete Personal Data shall not apply to
Personal Data contained in regular back-up copies of comprehensive
datasets from which the individual deletion of Personal Data would
not be possible without significant efforts or costs.
The Parties may exchange confidential information during the
performance of this Agreement. Confidential information shall mean
any information which is marked as confidential or which should be
understood as confidential, irrespective of its form of storage or
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 after the termination of this Agreement. For
the avoidance of doubt, any information of or relating to a Party
or that Party’s personnel, suppliers, contractors, customers or
end-users, which information is obtained or detected by the other
Party or processed or generated in the course of providing or
receiving the Service shall be deemed confidential information of
that Party.
Each Party shall promptly upon termination of the Service cease
using confidential material and information received from the
other Party and use reasonable means to destroy such material.
Each Party shall, however, be entitled to retain the copies
required by law or regulations.
All intellectual property rights to and in the Service as well as
intellectual property rights pertaining thereto are exclusive
property of Yemma or its licensors with all rights reserved. All
intellectual property rights to the content uploaded into the
Service by or on behalf of the Customer will remain the exclusive
property of the Customer or its licensors.
Customer agrees not to resell the Service or redistribute or
transfer the Service. All intellectual property rights relating to
the provision of the Services, including suggestions for
improvements made by the Customer will remain the exclusive
property of Yemma or its licensors.
Except as specifically provided under this Agreement, the Service is provided "as is" and with the functionalities available at each time without warranty of any kind, either express or implied, including but not limited to the warranties of merchantability and fitness for a particular purpose.
Yemma will not be liable for indirect damage or consequential damages caused to the Customer. Yemma’s total aggregate liability under or in connection with this Agreement shall be limited to the aggregate subscription fees paid by the Customer for the Service for the last six (6) months preceding the occurrence for which damages are claimed. These limitations will not apply to damage caused by willful misconduct or gross negligence. In order to be valid and enforceable, all claims for damages must be made within 30 days from the date the damage was or should reasonably have been noticed by the Customer.
Yemma may assign the Agreement in whole or in part to another group company or in connection with the trade sale or transfer which includes the provision of the Service. The Customer may assign the Agreement to a third party with Yemma's prior written consent which Yemma will not unreasonably withhold. The Agreement will not create any third-party beneficiary rights in any third party.
If the Customer has breached the provisions of the Agreement or Yemma has a justifiable reason to believe such a breach exists, Yemma may temporarily suspend the provision of the Service.
The Customer may terminate the Agreement for any reason at any time. The Service will be discontinued after the already charged subscription has ended. If the Customer has ordered any additional services or the subscription tier has been changed to a higher subscription tier during the ongoing subscription period, Yemma will charge the applicable fees and prices on the Customer’s credit card or by issuing an invoice after the Agreement has been terminated and the Service discontinued. Yemma may terminate the Agreement for any reason by issuing 30 days’ written notice to the Customer.
Either Party may terminate the Agreement with immediate effect if the other Party has materially breached the provisions of the Agreement.
Yemma will provide the Customer with transition services in order to enable the Customer to transfer the Customer Data to another service provider. The Customer must order the transition services before the termination of the Agreement. The description of the transition services and applicable prices are provided by Yemma's customer service upon request.
The Agreement constitutes the entire agreement and supersedes all previous commitments between the parties in respect of the provision of the Service. All amendments to the Agreement must be made in writing. Yemma may modify this Agreement by notifying the Customer in writing, such as by e-mail or by posting a revised document version on Yemma's website.
A failure by either Party to enforce any provision of the Agreement will not be deemed to constitute a present or future waiver of such provision. All waivers must be made in writing.
Force Majeure is an event that prevents, or makes unduly difficult, the performance of the Service or the fulfilment of the provisions of the Agreement, such as war, rebellion, natural catastrophe, general interruption in energy distribution or telecommunications, fire, strike, embargo, or another equally significant and unforeseen event independent of the parties. Each Party shall be entitled to suspend its duties without liability thereof in case of Force Majeure affecting the Party either directly or through its subcontractor.
Should any provision of the Agreement be declared unenforceable by a court of competent jurisdiction, the remaining provisions of the Agreement will remain in full force and effect to the fullest extent permitted by law. The Parties shall attempt through negotiation in good faith to replace the unenforceable provision with such provisions that correspond as closely as possible to the original intention of the Parties.
The Agreement will be governed by the substantive laws of Finland, with the exception of any conflict of law principles. Any and all disputes, which the Parties fail to settle amicably, arising out of or relating to the Agreement will be finally settled by arbitration in English language in accordance with the Rules of the Arbitration Institute of the Finland Chamber of Commerce. The number of arbitrators shall be one. The seat of arbitration shall be Helsinki, Finland.
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