Service Agreement and Terms of Service
1. General Information
2. Definitions
3. GameLayer’s Services
4. Managed Services
5. Payment of Service Fee
6. Rights to Data and the GameLayer Platform
7. Data Protection and Hosting
8. Legality
9. Confidentiality
10. Liability – Limitation of Liability
11. Transfer of Rights
12. Entry into Force, Term and Termination
13. Choice of Law – Jurisdiction – Severability
1. General Information
1.1. This Service Agreement sets out the general Terms of Service that apply to the Customer’s use of the GameLayer Platform (as defined herein below). Access to the Platform will be granted by username and password initiated by GameLayer via the integrated Auth0 (www.auth0.com) authentication and authorisation platform. The username is specific to GameLayer and a generic Auth0 username will not grant access.
1.2. These Terms of Service shall apply if no other similar provisions have been agreed upon between the Parties.
1.3. By implementing, using, or otherwise making use of the Platform, the Customer agrees to be bound by the Service Agreement and its Annexes, including these Terms of Service. If the Customer does not accept this, the Customer is prohibited from accessing, implementing, using, or otherwise making use of the Platform.
1.4. All Service Fees are based on integration of the Platform to the Customer’s own service offering, unless otherwise agreed. An introduction to the Platform will be provided by GameLayer (in a manner determined by GameLayer from time-to-time) and support, as further specified herein, will be included within the Service Fee.
2. Definitions
2.1. Unless otherwise specified in the Service Agreement, the following words or phrases shall, when capitalized in the Service Agreement or these Terms of Service, have the following meanings:
a) “Account” means the named account that the User(s) has access to access the GameLayer Platform.
b) “Customer” or “Licensee” means the Party identified as such in the Service Agreement.
c) “Data” means any content added to the Platform or created by the Customer through using the Platform.
d) “Downtime” means interruptions in the Service provided by GameLayer in accordance with the Uptime commitments.
e) “Effective Date” means the date when both Parties have signed the Service Agreement.
f) “Force Majeure” means events outside of GameLayer’s reasonable control and which prevent or have a substantial negative effect on GameLayer’s ability to perform its obligations under the Service Agreement, and shall include, but not be limited to war, civil war, revolutions, public unrest, riots, labour conflicts, strikes, government intervention, power failure, internet failure, utility failure, flooding, fire, earthquakes, severe weather, pandemics.
g) “GameLayer” or “Licensor” means GameLayer Oy, a private limited company incorporated in Finland, with the registered company number 2503589-1.
h) “License” means a non-exclusive, non-transferable, limited, and revocable right to access and use the Platform under the Terms of Service further set forth herein or as otherwise agreed to between the Parties.
i) “License Agreement” means a contract entered between GameLayer and the Customer regarding the Customer’s use of the Platform, payment of Service Fees, and the Terms of Service therefor.
j) “Service Fee” means the payment by the Customer to GameLayer in return for access to the Platform and any associated License required to integrate the GameLayer Platform in own service(s).
k) “End-User” means an individual end-user who participates in a digital experience created by the Customer and enabled by the Platform.
l) “Managed services” means non-license -based services delivered by GameLayer such as designing a gamification concept, implementing a gamification concept, managing the in-market content of a gamification concept, etc.
m) “Party” or “Parties” means either, or both, of GameLayer and the Customer.
n) “Platform” means the software platform developed and provided by GameLayer pursuant to a Service Agreement.
o) “SaaS” means “software-as-a-service”, a non-downloadable, remote connection accessible software application.
p) “Service Level” shall have the meaning defined in the Service Level Agreement, Annex A to the Service Agreement.
q) “Support” means remote troubleshooting and basic usability assistance as described in the Service Level Agreement.
r) “Term” means a period specified in the Service Agreement during which a License to the Platform is granted.
s) “Terms of Service” mean this GameLayer Service Agreement and Terms of Service.
t) “Territory” means a geographical area, an industry, and / or a particular group of potential customers or recipients, as specified in the Service Agreement.
u) “Update” means any amendment, addition, or removal of specific functionalities, content and / or features to the Platform.
v) “Uptime” means Platform accessibility (subject to normal remote access from the Customer to the internet) without substantial errors or malfunction.
w) “User” means an individual employee or agent of the Customer who is granted access to the Platform through a unique username and password.
x) “Registration” means unique registrations made to the digital experience by end-users.
3. GameLayer’s Services
3.1. Under this Service Agreement, the Customer may access GameLayer for the purpose of implementing and integrating gamification experiences enabled by the GameLayer platform.
3.2. GameLayer’s services are offered on a SaaS model, i.e., the Customer always has access to the software. The Platform is continuously developed and updated to improve its performance. GameLayer makes no representations or warranties about specific functions, functionalities, features, or other qualities of the Platform.
3.3. Hosting, upgrading and maintenance of the Platform shall be provided by GameLayer and is included within the Service Fee.
3.4. GameLayer provides operational support, via email, between 8:00 – 18:00 (CET) during weekdays. All support inquiries shall be sent to support@gamelayer.co. Support outside of these operating hours will be agreed upon on a Customer -specific basis.
4. Managed Services
4.1. Managed services at the Customer’s request will be invoiced separately. Except for the pre-defined products listed below, the invoicing amount will be according to time spent at a rate of 150 EUR / hour excluding applicable VAT unless otherwise agreed. The Customer will receive an estimation of the time frame and cost before the service is performed.
4.2. Set-Up Project: GameLayer will, jointly with the Customer, support with the concept design and technical implementation of a gamification experience to suit the intended business objectives of the Customer with such an initiative. GameLayer will not be accountable for the success of such experience(s), however, will work with the Customer to share best practices when implementing gamification along with its domain specific knowledge in the industry.
4.3. Service Management Package: GameLayer will support the Customer in the day-to-day management of the gamification experience, where regular content updates are required through the GameLayer Platform. Nevertheless, the Customer will always be responsible for approving content to be published through the Platform unless otherwise specifically agreed.
4.4. It is the responsibility of the Customer to make best use of the managed services purchased during the license period and any unused packages will not be transferred to other services or repaid to the Customer retrospectively unless otherwise agreed.
5. Payment of Service Fee
5.1. The Service Fee is agreement-specific and is regulated in the above Agreement specification.
5.2. The Service Fee must be paid on time, as agreed between the Parties. Unless otherwise stated in the above, there is a 14-day net payment period for invoices from GameLayer.
5.3. GameLayer will issue invoices for the Service Fee monthly in advance, typically on the 1st day of the month based, where applicable, on Platform data from the previous month’s usage, unless otherwise agreed. Such data will be made available to the Customer at the time of invoicing. Payment shall be due as set forth in clause 5.2.
5.4. In case of late payment, interest will be calculated from the invoice date in accordance with the Finnish Interest Act.
6. Rights to Data and the GameLayer Platform
6.1. GameLayer hereby grants to the Customer a limited, non-transferable, non-exclusive right to use the Platform for the purpose of accessing and using the Platform and its functionality as specified in the Service Agreement during the Term for the purposes described in the Service Agreement.
6.2. Any Data regarding the Customer’s Users, Customer’s End-Users and the content used in connection with the Customer’s services always belong to the Customer, and GameLayer shall only use such Data solely for the provision of performing or enabling services on the Platform.
6.3. GameLayer has the right to use non-personal Data on an aggregated and entirely anonymous level, solely for GameLayer’s platform improvement and statistical purposes. Data used for statistical purposes or platform improvement will not contain personal Data. GameLayer shall undertake reasonable efforts to comply with all laws as applicable to Personal Data as defined and described under the EU General Data Protection Regulation (“GDPR”).
6.4. GameLayer is the sole owner of all copyrights and all other intellectual property rights related to the Platform.
6.5. The Customer may not damage, delete, or modify any files or codes within, or that give access to use of, the Platform. The Customer is also not permitted to change or remove any statement and / or comments on copyright, trademark or other rights existing within the Platform.
7. Data Protection and Hosting
7.1. The Parties are individually responsible for complying with their respective obligations regarding any processing of personal Data by GameLayer on behalf of the Customer in connection with the use of the Platform. GameLayer acts as a data processor only on instructions from the Customer who is responsible for the Data.
7.2. As data processor, GameLayer takes the necessary technical and organizational security precautions to prevent information being accidentally or illegally destroyed, lost, or impaired, and to prevent it from becoming known to unauthorized persons, being misused, or otherwise processed in violation of the GDPR. GameLayer shall comply with any Data Processing Agreement made between the Parties. At the Customer’s request, GameLayer shall reasonably provide sufficient information to ensure that the technical and organizational security measures have been taken.
7.3. The Platform is hosted through Microsoft Azure Cloud Services in North Europe, or at another similar hosting facility chosen by GameLayer from time-to-time in its discretion within EU / EEA.
7.4. GameLayer shall make reasonable efforts to provide an uptime during the Term of 99%, exclusive of scheduled Downtime for the implementation of Updates and/or maintenance. GameLayer will typically provide 14 days’ notice to the Customer of planned Downtime. GameLayer shall not be obliged to provide any kind of compensation to the Customer for Downtime, regardless of the reason therefore.
7.5. Data protection terms and conditions may be set forth in a Data Processing Agreement between GameLayer and the Customer should this be required for the Customer to collect Data as part of a digital experience.
8. Legality
8.1. The Customer warrants and shall ensure that the Customer’s use of the Platform in all respects is lawful in every jurisdiction within the Territory. In particular, the Customer must ensure that the necessary consent for processing personal data is obtained and that all relevant rules regarding the processing of personal Data, on marketing, on consumer protection, on spam and on use, etc. is complied with.
9. Confidentiality
9.1. GameLayer treats all Data confidentially.
9.2. The Parties shall keep confidential all information (written or oral) concerning the business and affairs of the other party and any specifications, drawings, customer information, personal data, content, diagrams, patterns or other materials that it shall have obtained or received or created as a result of the discussions leading up to, during, or on entering into or the performance of the Service Agreement, shall only use such information in the performance of the Service Agreement and shall not without the other Party’s written consent disclose such information in whole or in part to any other person with the exception of those staff, subcontractors and agents involved in the implementation of the Service Agreement and who have a need to know the same and shall ensure that all such persons comply with the obligations in this Clause 9.2.
9.3. The Parties’ obligations in Clause 9.2 shall not apply to information that is already in the public domain other than as a result of a breach of Clause 9.2.
9.4. The Customer accepts that GameLayer may use examples from in-market experiences, including the Customer’s name and logo for marketing purposes. All such use shall be made in good faith and to a fair extent. Consent to use such examples can be withdrawn at any time with written notice to support@gamelayer.co with withdrawal to be effective no later than 5 workdays upon such notice being given.
10. Liability – Limitation of Liability
10.1. GAMELAYER AND ITS SHAREHOLDERS, AFFILIATES, SUBSIDIARIES, DISTRIBUTORS AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES AND PERSONNEL SHALL NOT BE LIABLE TO THE CUSTOMER OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THIS SERVICE AGREEMENT UNDER ANY LEGAL THEORY, INCLUDING BUT NOT LIMITED TO, LOST PROFITS, AND / OR BUSINESS INTERRUPTION, INFRINGEMENT, OR THE COST OF SUBSTITUTE SOFTWARE, EVEN IF GAMELAYER HAS BEEN ADVISED OF, KNOWS OF, OR SHOULD HAVE KNOWN, OF THE POSSIBILITY OF SUCH DAMAGES.
10.2. GameLayer’s total liability toward the Customer under this License Agreement irrespective of the basis therefor is limited to the total Service Fees that the Customer has paid for the service during the preceding 3 (three) months prior to the claim. In determining the limitation of GameLayer’s total liability pursuant to this clause 10.2, there shall be deducted any amount and / or the value of any compensation that GameLayer has previously paid and / or granted to the Customer to cover or serve as a discount for the Customer’s loss, for which GameLayer is responsible.
10.3. GameLayer is not responsible for the Platform’s applicability in relation to the specific use that the Customer wishes or may have anticipated, including for integration or interaction between the Platform and the Customer’s other hardware and software, unless specifically pre-approved in writing by GameLayer.
10.4. User-logins are personal and shall not be shared. The Customer’s Users are responsible for the security of their individual User-credentials. If the Customer notices any misuse, GameLayer must be informed immediately in writing. The Customer shall ensure that all Users comply with the Service Agreement and these Terms of Service and other terms and conditions applicable to the use of the Platform agreed-to between the Customer and GameLayer. The Customer shall be liable for any breach or violation hereof by a User.
10.5. If GameLayer implements or edits a digital experience for the Customer, it is the responsibility of the Customer to review and approve the content to ensure that the user experience is as intended.
10.6. GameLayer is not responsible, and shall have no liability, for any events attributable to Force Majeure or similar conditions, such as interruption of power supply, breakdowns in publicly available networks, flooding, and similar conditions, which prevent or restrict the delivery of the GameLayer platform. If the occurrence of a Force Majeure event prevents GameLayer from performing its obligations for more than thirty (30) consecutive days, the Customer may elect to terminate this Service Agreement upon written notice, with no further obligation or liability. In the event of said termination, GameLayer shall refund to Customer any pre-paid Service Fees for the remainder of the Term, if applicable.
10.7. To the extent allowed under the applicable law, GameLayer shall have no product liability toward the Customer.
10.8. If an End-User’s access to or activity within an experience enabled by GameLayer is found to be detriment to that which the Customer planned, the Customer may request for said End-User’s account to be deleted from the production database. Such work will be at the expense of the Customer who may request a quote prior to the performance of the task. This task is performed exclusively at the Customer’s request.
10.9. Except as otherwise stated in this clause 10, the limitations in this clause 10 shall not apply if the loss can be shown to be attributable to gross negligence or intentional acts or omissions.
11. Transfer of Rights
11.1. The Customer may not sell, assign, distribute, license, rent out, lease, lend, mortgage, pawn or otherwise transfer, assign, or convey its rights and / or obligations under the Service Agreement or hereunder obtain marketing permissions on behalf of third parties to the Platform or the License for third parties without prior written permission from GameLayer.
11.2. GameLayer is entitled at any time without the Customer’s consent to transfer its rights and obligations under this Service Agreement as part of a sale of the business operated by GameLayer.
12. Entry into Force, Term and Termination
12.1 This Service Agreement shall enter into force on the Effective Date and shall remain in force until it is terminated pursuant to this clause 12.
12.2 This Service Agreement can be terminated by either Party with effect from the end of the Term by giving written notice to the other Party no later than 1 month prior to the end of the Term.
12.3 This Service Agreement will automatically renew for additional 1-year successive terms, which shall then each become the Term, unless terminated by either of the Parties no later than 1 month prior to the end of a Term.
12.4 In the event of a material breach, the non-breaching Party may terminate the Service Agreement with the defaulting Party if the material breach has not been rectified by the defaulting Party within 14 business days upon receiving written notice thereof, specifying the alleged breach. Material breach shall include, but shall not be limited to, delay in payment of Service Fees, unauthorized use of the Platform.
12.5 In the event of termination of this Service Agreement, regardless of the reason therefor, the Customer shall discontinue all use of the Platform, other than as specifically authorized in the Service Agreement or otherwise by GameLayer. Upon termination, except as otherwise described in the Service Agreement, GameLayer is not required to pay or repay any portion of the Service Fees or other payment to the Customer. In the event of termination as a result of material breach by GameLayer, GameLayer’s liability toward the Customer is limited as set forth in clause 10 herein above.
12.6 At the expiration or termination of the Service Agreement, the Customer’s License and access to the Platform shall immediately be terminated, and the Customer’s account on the Platform will be deleted no earlier than 12 months after the expiration or termination. GameLayer undertakes to notify the Customer of the expected time of such deletion no less than 14 calendar days in advance thereof. The account can be deleted prior to the 12 months after the expiration or termination of this Service Agreement by contacting support through the chat support or at support@gamelayer.co.
12.7 Deletion of personal data will be dealt with separately in the Data Protection Agreement between the Parties or as otherwise agreed in writing between the Parties should a Data Protection Agreement not be in place.
13. Choice of Law – Jurisdiction – Severability
13.1. This License Agreement shall be governed by the laws of Finland.
13.2. Any dispute between the Parties arising out of or in connection with this Service Agreement, including all Annexes thereto, shall be subject to the exclusive jurisdiction of the courts of Finland, with the District Court of Helsinki as the court of first instance.
13.3. Severability: If any term or clause of the Service Agreement or its Annexes including these Terms of Service is declared void or unenforceable in a particular situation, by a court of proper authority, this declaration shall not affect the validity or enforceability of the remaining terms and provisions thereof or the validity or enforceability of the void or unenforceable term or clause in any other situation.
