Linda AI – Terms of Service These Terms of Service (hereinafter the “Agreement”) govern the use of the AI Linda Software as a Service provided by Kaswu Oy for educational institutions and other organizations for the purposes of optimizing the learning processes of their students. You shall read this Agreement with due care. By accepting this Agreement e.g. as a part of the sign-up procedure to the Service, the organization on behalf of which you subscribe to the Service (hereinafter the “Customer”) will be bound by this Agreement with Kaswu Oy (Business ID: 2653754-3, address Välimerenkatu 4 C 45, 00220 Helsinki, Finland) (“Kaswu”). By accepting the Agreement, you hereby warrant to have the required authority to subscribe to the Service on behalf of the Customer and commit to the Service Fees on behalf of the Customer. This Agreement applies to any use of the Service. If you do not agree to the terms of this Agreement, do not use the Service. 1. Definitions As used in this Agreement, the following capitalized terms shall have the meaning set out below. “Coach” or “you” shall mean the authorized user of the Service accepting this Agreement and using the Service on behalf of the Customer. “Customer Data”shall mean all data submitted to the Service by Students or Coaches. For clarity, Customer Data shall not include Kaswu Data or Registration Data. “Intellectual Property Rights” shall mean copyrights and related rights (including database and catalogue rights and photography rights), patents, utility models, design rights, trademarks, tradenames, trade secrets, know-how and any other form of registered or unregistered intellectual property rights. “Kaswu Data” shall mean all anonymous data generated by the Service from the Customer Data or from other applicable data. “Registration Data” shall mean the personal data Kaswu collects in connection with the Customer’s subscription to the Service, such as contact details, payment information, and identification data of Coaches. “Service”shall mean the AI Linda Software as a Service provided to the Customer by Kaswu under this Agreement, including Kaswu Data. “Student” shall mean the student to whom the Coach has granted access to the Service as described below. “Party” shall mean the Customer or Kaswu (jointly the “Parties”). “Service Fee”shall mean the fee charged by Kaswu from time to time from the Customer during the term of this Agreement for the Service as separately agreed upon by the Parties. 2. Use of the Service 2.1. Right to use the service Subject to payment of the applicable Service Fee and compliance with the terms and conditions of this Agreement, Kaswu hereby grants to the Customer and the Customer hereby accepts a limited, non-exclusive, non-transferable, and non-sublicensable right to use the Service during the term of this Agreement for the purposes set out herein. In connection with the subscription to the Service, the Coach creates a user account with a username and a password. The Coach is entitled to invite request Students to submit Customer Data to the Service by sending an access link to their email addresses or mobile phone numbers. Only Coaches and Students are allowed to access and use the Service. The applicable Service Fee(s) relating to the Service are separately agreed on between the Parties. Payment of the Service Fee shall be invoiced by Kaswu from Customer with a 14-day term of payment or conducted with a valid credit card by submitting the relevant credit card information, as required in the Service, in connection with the subscription. Interest on overdue payments shall accrue according to the Finnish Interest Act. The Customer shall be responsible for the reasonable costs incurred by Kaswu when collecting overdue fees. 2.2. Usage restrictions The Customer may use the Service only and strictly in accordance with the terms of this Agreement. Unless otherwise permitted in this Agreement, the Customer may not:
a) circumvent or attempt to circumvent any usage control or anti-copy features of the Service;
b) probe, scan or test the vulnerability of the Service;
c) use the Service and the content available through the Service in any manner that could damage, disable, overburden or impair the Service;
d) use the Service for the purposes of developing a product, program or service that would compete with the Service;
e) use any data mining, robots, scraping, or similar data gathering or extraction methods;
f) use, sell, rent, transfer, license or otherwise provide anybody with the Service and/or the content available through the Service, except as provided herein;
g) interfere with Kaswu’s other customers’ use and enjoyment of the Service;
h) reverse engineer or decompile the Service or access the source code thereof, except as permitted by law;
i) use the Service for transmitting any unauthorized advertising, promotional materials, junk mail, spam, chain letters, contests, pyramid schemes, or any other form of solicitation or mass messaging;
j) use the Service in violation of applicable law;
k) use the Service in ways that violate intellectual property rights, business secrets or privacy of third parties; and/or
l) use the Service to transmit any material that contains adware, malware, spyware, software viruses, worms or any other computer code designed to interrupt, destroy, or limit the functionality of computer software or equipment.
2.3. General obligations of Customer The Customer is responsible for preparing the Customer’s hardware, connections, software and data systems to meet the operating environment of the Service and for ensuring that the Service fulfils the Customer's intended purpose of use.
The Customer shall use all reasonable endeavours to prevent unauthorised access to, or use of, the Service. The Customer shall ensure that Coaches and Students use the Service in compliance with this Agreement. Misuse of the Service by Coaches or Students may lead to termination of this Agreement or suspension or denial of access to the Service. The Customer is responsible for all data and content the Coaches and Students enter into the Service and the validity and accuracy thereof.
The Customer agrees that it shall indemnify and hold Kaswu harmless from and against any and all liabilities, losses, damages, costs, and expenses (including reasonable legal fees and expenses) associated with any claim or action brought against Kaswu that may arise from the Customer's use of the Service in breach of this Agreement, including claims that the Customer Data infringes the Intellectual Property Rights or privacy rights of third parties.
3. Customer data
The Intellectual Property Rights and the title to the Customer Data shall belong to the Customer and the Customer shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data. Kaswu and its subcontractors (subject to applicable data protection laws) may use, copy, store, and modify Customer Data during the term of this Agreement for the purposes of providing the Service to Customer as well as analyzing the use of the Service.
The Service shall not be used as a storage service. Customer shall be solely responsible for storing appropriate backup copies of the Customer Data. The Customer shall be responsible for its Customer Data and shall be liable for ensuring that Customer Data does not infringe any third party rights or violate applicable legislation, and that the Customer possesses such necessary licences and permissions from third parties as may be required in order to use the Customer Data as set out herein.
Kaswu shall have the right to generate Kaswu Data from the Customer Data. The Intellectual Property Rights and the title to Kaswu Data shall belong to Kaswu. For clarity, Kaswu Data shall not in any event be used by Kaswu or any third party in a manner that identifies the Students or any other natural person.
4. Processing of Personal Data
4.1. Roles of the Parties
To the extent the Customer Data contains personal data, Customer acts as data controller under applicable data protection laws and Kaswu processes such personal data on behalf of Customer as data processor. To the extent the Customer Data includes personal data, Customer acts as data controller of such data and Kaswu processes such personal data on behalf of Customer as processor for the purposes of this Agreement during the term thereof.
Customer and Kaswu agree to comply with their respective obligations under applicable data protection and privacy laws.
4.2. Personal Data in the Customer Data
To the extent Kaswu processes personal data on behalf of Customer:
i. Customer shall be considered the data 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 (“General Data Protection Regulation”) and any other applicable data protection laws and is 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, Customer shall inform the individuals concerned regarding the processing of their personal data by Kaswu and shall obtain their consent if necessary.
ii. Customer acknowledges that due to the nature of Service, Kaswu cannot control and has no obligation to verify personal data Customer transfers to Kaswu for processing on behalf of Customer when Customer uses the Service.
iii. Kaswu shall not use personal data for any purpose other than that of providing the Service. Kaswu shall process personal data in accordance with this Agreement and documented instructions from Customer. Customer’s instructions must be commercially reasonable, compliant with applicable data protection laws and consistent with this Agreement. In case Kaswu deems that the instructions of the Customer are not compliant with the General Data Protection Regulation or any other applicable data protection laws, Kaswu is not required to comply with such Customer’s instructions. The Customer shall primarily use the functionalities of the Services to provide Kaswu with any instructions set out in this Section. In case the instructions cannot be provided by using the functionalities of the Services, Kaswu has the right to charge an hourly fee in accordance with its price list in force from time to time for complying with the instructions of the Customer set out herein;
iv. Taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of Kaswu’s processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, Kaswu shall implement and maintain appropriate technical and organizational security measures in order to safeguard the personal data against unauthorised or unlawful processing and damage, and in particular against accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to personal data.
v. To respond to requests from individuals exercising their rights as foreseen in applicable data protection laws, such as the right of access and the right to rectification or erasure, the Customer shall primarily use the functionalities of the Service. In case the Customer requires additional assistance from Kaswu in order to respond to such requests, Kaswu shall provide Customer with commercially reasonable assistance, without undue delay, taking into account the nature of the processing. In case the data subjects’ rights cannot be exercised by using the functionalities of the Services, Kaswu has the right to charge an hourly fee in accordance with its price list in force from time to time for assisting the Customer as set out herein;
vi. Kaswu shall further provide Customer with commercially reasonable assistance in ensuring compliance with Customer’s obligations to perform security and data protection impact 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 ixnformation available to Kaswu. Kaswu shall have the right to charge an hourly fee in accordance with its price list in force from time to time for assisting the Customer as set out herein;
vii. In addition, Kaswu shall:· ensure that individuals processing personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality;· include in a contract with subprocessors who will process personal data on behalf of Customer, provisions which are materially equivalent to those in this Agreement.
viii. Customer accepts that Kaswu may have personal data processed and accessible by Kaswu or its subprocessors outside 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”) 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, Customer authorizes Kaswu to enter, on behalf of Customer, into the standard contractual clauses, adopted or approved by the European Commission and applicable to the processing outside the EEA, or Kaswu shall provide for other appropriate safeguards for the protection of the personal data transferred outside the EEA as set out in the General Data Protection Regulation.
ix. Customer or an auditor appointed by Customer shall with the assistance of Kaswu have the right to audit the processing activities of Kaswu under this Agreement to assess the compliance of Kaswu with the personal data processing terms of this Agreement and Kaswu shall provide to Customer information necessary to demonstrate compliance with the obligations laid down in this Section. Customer shall be responsible for the costs incurred by Customer in relation to the audit and Kaswu shall have the right to charge an hourly fee in accordance with its price list in force from time to time for the work required by Kaswu in relation to the audit and the provision of information to Customer as set out herein;
ix. Where an audit may in Kaswu’s opinion lead to the disclosure of business or trade secrets of Kaswu or threaten intellectual property rights of Kaswu, Customer shall employ an independent auditor, that is not a competitor of Kaswu, to carry out the audit, and the expert shall agree to be bound to confidentiality to Kaswu’s benefit.
x. Customer gives its general authorization to allow Kaswu to involve Kaswu’s affiliated companies and other subcontractors as subprocessors to process personal data in connection with the provision of Service.
xi. Kaswu is free to choose and change its subprocessors. Upon request, Kaswu shall inform Customer of subprocessors currently involved. In case there is a later change of subprocessor (addition or replacement), Kaswu shall notify Customer of such change. In case Customer objects such change of subprocessor on reasonable grounds, Customer has the right to request change of the subprocessor. If Kaswu is not willing to change the subprocessor Customer has objected, Customer shall have the right to terminate the part of the Services affected by the change of the subprocessor;
xii. Kaswu shall, without undue delay after having become aware of it, inform Customer in writing about any data breaches relating to personal data. Kaswu shall use reasonable endeavours to assist Customer in mitigating, where possible, the adverse effect of any personal data breach, taking into account the nature of Kaswu’s processing and the information available to Kaswu.
xiv. Within a reasonable time after the termination or expiry of this Agreement or after the Customer has permanently ceased to use the Service, Kaswu shall permanently delete personal data from its storage media, except to the extent that Kaswu is under a statutory obligation to continue storing such personal data.
5. Provision of the Service
The Customer understands that the Service may be inaccessible, unavailable or inoperable for any reason including maintenance. Kaswu shall at all times have the right to temporarily suspend the provision of the Service. The Customer acknowledges that interruptions to the availability of the Service may also occur, for example, in the event of data connection or network disruptions or in case of interruptions in third-party services. Kaswu shall in no event be liable for such interruptions.
Kaswu may under its sole discretion at any time modify and update the Service or a part thereof and may cease to provide the same
Either Party shall not disclose to third parties any material or information received from the other Party and marked as confidential or which should be understood to be confidential and shall not use such material or information for any other purposes than those stated in this Agreement. The confidentiality obligation shall, however, not be applied to material and information, (a) which is generally available or otherwise public; or (b) which the Party has received from a third party without any obligation of confidentiality as verified by the written records of such Party; or (c) which a Party has independently developed without using material or information received from the other Party as verified by the written records of such Party; (d) which a Party is obligated to disclose due to applicable mandatory laws, public authority regulations or court orders. In case of disclosure due to (d), the Party much promptly inform the other Party of such disclosure.
The rights and responsibilities under this Section 6shall survive the expiry or termination of this Agreement.
7. Intellectual Property Rights
All right, title and interest in and to all copyright, patent, trademark, design right, database protection right, and any other form of statutory protection of any kind (whether registered or unregistered) and applications for any of the foregoing respectively as well as any know-how, inventions, and trade secrets in or related to the Service and thereto related documentation and data (including modifications, if any) and all parts and copies thereof shall remain exclusively vested with and be the sole and exclusive property of Kaswu and/or its subcontractors or licensors.
Except as expressly stated herein, this Agreement does not grant the Customer any intellectual property rights in the Service and all rights not expressly granted hereunder are reserved by Kaswu and its subcontractors or licensors, as the case may be.
8. Limitation of Liability
Neither Party shall be liable for any indirect or consequential damages. Kaswu's total aggregate liability under or in connection with this Agreement shall be limited to the aggregate Service Fees paid by the Customer for the Service for the last 6 months preceding the occurrence for which damages are claimed.
Nothing contained herein shall be deemed to limit a Party’s liability towards the other Party in the event of and to the extent that the damages are caused by willful misconduct or gross negligence.
Kaswu has no other obligations or liabilities than those that have expressly been agreed upon in this Agreement.
Customer is aware that the Service, including Kaswu Data, might not be suitable and functional for Customer’s purposes. Kaswu makes no warranties or representations of any kind regarding the Service, including Kaswu Data, including its usability for a particular purpose, and disclaims all implied and express warranties and representations. Customer is at all times responsible for ensuring that the Service is compatible with its intended use.
10. Terms nad Termination
This Agreement shall enter into force immediately after the Customer has finalised the subscription to the Service and accepted this Agreement as part of the subscription procedure.
The Customer’s subscription to the Service shall stay in force for a fixed separately agreed subscription term at a time after which it will automatically renew for another equally long subscription period unless terminated by the Customer at any time prior to the commencement date of the following subscription period, whereupon this Agreement terminates at the end of the ongoing subscription period.
Kaswu may, by notifying the Customer in writing thereof, terminate this Agreement or a part thereof at any time to expire at the end of the ongoing subscription period.
After the termination of this Agreement, Coach shall lose access to his/her user account at the end of the subscription period during which the Agreement was terminated.
A Party may terminate this Agreement with immediate effect if the other Party substantially breaches the provisions of this Agreement.
Upon termination of this Agreement for any reason, Kaswu shall not be obliged to refund any payments effected in accordance with this Agreement.
All provisions of this Agreement that are intended to survive the termination or expiry of this Agreement shall do so.
11.1. Governing law
This Agreement shall be governed by and construed in accordance with the laws of Finland, notwithstanding its choice of law provisions.
11.2. Dispute Resolution
Any dispute arising from or relating to this Agreement shall be subject to amicable negotiations between the Customer and Kaswu.
If the matter cannot be resolved amicably within 60 days, the matter shall be finally settled by arbitration in accordance with the Arbitration Rules of the Finland Chamber of Commerce. The number of arbitrators shall be one. The seat of arbitration shall be Helsinki, Finland. The language of the arbitration shall be Finnish or English.
11.3. Force Majeure
Neither Party shall be liable for delay and damage caused by an impediment beyond the Party’s control and which the Party could not have reasonably taken into account at the time of conclusion of this Agreement and the consequences of which the Party could not reasonably have avoided or overcome. Such force majeure events shall include, if not proven otherwise, inter alia, war or insurrection, earthquake, flood or other similar natural catastrophe, interruptions in general traffic, data communication or supply of electricity, import or export embargo, strike, lockout, boycott or other similar industrial action. A strike, lockout, boycott and other similar industrial action shall also be considered, if not proven otherwise, a force majeure event when the Party concerned is the target or a party to such an action.
Each Party shall without delay inform the other Party in writing of a force majeure event and the ceasing of such event.
Kaswu shall be entitled to use subcontractors, including third party software suppliers, for the provision of the Service. Kaswu shall be liable for the subcontractors’ work and services in the same manner as for its own work and services.
11.5. Reference Use
Customer agrees that Kaswumay use the Customer’s name and logo to identify the Customer as a customer of Kaswuas part of a general list of Kaswu’s customers for use and reference in Kaswu’s promotional and marketing materials.
11.6. Severability 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.
Neither Party may assign this Agreement or any rights or obligations hereunder without the prior written consent of the other Party. Kaswu may, however, assign all or any of its rights or obligations hereunder in whole or part to an affiliate or successor or to a purchaser or acquirer of its business assets without Customer’s prior consent.
Kaswu is entitled to amend this Agreement by providing the Customer with least 30 days' prior notice. If the Customer does not accept the changes made by Kaswu to this Agreement, the Customer has the right to terminate the Agreement by notifying Kaswu therof in writing prior to the effect date of such change.