A) Fredman Perfect Kitchen Oy
Business Identification 2882371-1
in Vänrikinkuja 3, 02600 Espoo, Finland (“Supplier”)
B) Customer defined as follows:
An entity named and identified as informed by its authorized representative during the online ordering process or
II Customer’s authorization
By clicking the “I accept” button displayed as part of the online ordering process, you as the authorized representative of the named and identified Customer agree to the following terms and conditions governing the Customer’s use of Supplier’s Chefstein Online Service (“Service”).
You are entering into this agreement on behalf of a company or other legal entity named and identified as informed by you during the ordering process and thus you must represent and warrant that you have the authority to bind such entity to these terms and conditions, and the term “Customer” refers to such entity informed by you. If you do not have such authority, you are not representing a company or other legal entity, or if you do not agree with these terms and conditions, you must not click the “I accept” button. Consequently, you and the entity informed by you as Customer shall not use the Service.
These Terms of Service (“Terms of Service”) for Service, together with the subscription made by you as a result of the ordering process constitute a legal agreement between Customer and Supplier, with respect to Service (hereinafter referred to as “Agreement”).
Customer and Supplier are hereinafter individually referred to as “Party” and jointly as ”Parties”.
III Scope and Purpose
3.1 The Service is a service package with Chefstein® trademark owned, managed, maintained and updated by Supplier consisting of a browser-based Software-as- a-Service style online service for professional kitchens added with possible mobile and other applications and services as defined and agreed by and between the Supplier and the Customer as a result of the online ordering process.
3.2 Customer’s use of the Service is governed by the Agreement and the Data Processing Addendum (DPA) attachment which forms an integral part of the Agreement
In case of any discrepancies between the Agreement and the Data Processing Addendum, the order of precedence shall be as follows:
1) Data Processing Addendum
2) Terms of Service
3.3 The Agreement and the Data Processing Addendum constitute a binding agreement between the Customer and Supplier and define Customer’s and Supplier’s rights and responsibilities with respect to the Service.
3.4 The main features of the Service are described in general at Supplier’s website in connection with the ordering process. The Customer acknowledges and agrees that the descriptions of features of the Service may change, and Supplier may or may not develop and change the Service upon its sole discretion.
3.5 The Customer’s measurement data as well as other data such as user data of the Service, possible Mobile App and the Online Service (hereinafter referred to as “Customer Data”) may be collected processed, saved and stored by the Supplier and the service providers of the Supplier. The Customer hereby gives its perpetual and irrevocable consent as well as a global, perpetual, irrevocable, fully-paid up and royalty free license to Supplier to collect, analyze, process utilize, and otherwise use, exploit and transfer the Customer Data in order to maintain the Service, to improve the features, functionality, and quality of the Service and other applications, products, or services and to develop new products and functions by itself or under co-operation with third parties provided that the privacy regulations agreed in Data Processing Addendum are not violated.
3.6 The Service may contain information, data, text, photographs, videos, audio clips, written posts and comments, et cetera, generated, provided, or otherwise made accessible on or through the Service either by the Customer or users of the Service as well as by third
parties in certain cases (collectively, “Content”).
3.7 The Service and its ordering process may include links to third party sites (i.e. other sites than the Service) and services on the Internet that enable the Customer to interact with sites or services that are owned and controlled by third parties and that are not part of the Service (such as transfer of Customer’s payments for the Services). The Customer must review and agree to the terms and conditions of these sites and services before using these sites or services. The Customer accepts and acknowledges that Supplier has no control over the third party sites or services and assumes no responsibility for the services provided or material created or published on these third party sites or services. A link to a third party site does not imply that Supplier endorses the site or the products or services referenced in the site.
3.8 The Supplier reserves the right to provide the Service as it sees fit and use subcontractors and other third parties to produce, manage or supply it. The Supplier is not responsible for the suitability of the Service for the Customer’s need or purpose and does not guarantee uninterrupted functioning of the Service.
3.9 The Customer uses the Service at its own risk, and the Supplier is not responsible for any indirect or consequential damage caused by the use or non-use of the Service or by the inability to use the Service. The Customer itself is responsible for all materials transferred to the Service, for all entries, settings, and changes thereto, and for their consequences. The Customer is responsible to take backup copies and archive the data, materials, documents, reports and other Content transferred from or to the Services. The Supplier takes no responsibility and assumes no liability for any data, materials, documents, reports and other Content transferred from or to the Services. The devices related to the Service and owned by the Customer are at the Customer’s responsibility and liability. The Supplier can never be held responsible for any modifications to Customer-owned equipment by the Customer or third party nor for any harm or damage to the equipment by the Customer or third party, nor for any problems caused to the Service by them.
3.10 Access rights to the Service in relation to the availability via Customer’s internet operator, network and possible Mobile Application and their use and functionality are subject to third party service and related terms and conditions (such as the service provided and the terms and conditions set out by Apple or by Google or by Customer’s mobile, internet or other operator or co-operating party). Consequently, Supplier does not have and assumes no responsibility or liability in relation the internet operators, Mobile Application or the use or the availability of the Service by Customer in connection with the internet, related operators and other third parties as well as Mobile Application or its use.
IV Ordering Process and Payments for Service via Online Subscription
4.1 By accepting this Agreement as a part of the online subscription process, the Customer creates an account by the Supplier and subscribes a restricted access application (in technical terms, to a share of the underlying software instance) for a group of users authorized by the Customer (“Account”). Customer’s and user’s access to the Service is restricted to a certain period of time which is agreed during the online ordering process (“Subscription Period”).
4.2 Content, applications, add-on services, features, power-ups or other services offered by Supplier’s external development partners and other third parties (“Third-Party Content”) may be included and/or integrated into the Service. The use of Third-Party Content maybe subject to third-party terms and conditions and, if so agreed between the Parties, a separate fee.
4.3 Customer’s use of Service is subject to use and other fees defined in the price list presented on the Supplier’s website (“Price List”). In general, the Supplier is always entitled to make changes to the Price List and the Customer will be informed of changes in the Price List in advance in writing. In online based subscription such information shall be made by email at least thirty (30) days prior to the end of the ongoing Subscription Period (as defined in part of the ordering process) and the changes will then take effect from the beginning of the Subscription Period following the Subscription Period during which the Price List changes were introduced. If the Customer does not accept the change, the Customer shall have a right to terminate this Agreement by informing the Supplier of its termination by using the termination channel https://online.fredmangroup.com/ before the time of the pricing change is becoming to be effective. The Customer agrees to provide Supplier with correct and accurate billing information and always keep such information up-to-date.
4.4 When the subscription of the Service is made via online ordering process, the service fees for the entire Subscription Period shall be charged by Supplier in advance by Customer’s credit card. The payment and related transaction are made via third party entity named Stripe. Before making the payment, the Customer shall duly review and accept the terms and conditions of Stripe available at the web pages of Stripe or during the ordering procedure. The Customer shall acknowledge and be aware of that the Supplier assumes no responsibility or liability for the payments and transactions made via Stripe or otherwise. The Customer must pay attention and be aware of that all fees paid for the Service are non-refundable.
4.5 The subscription may contain thirty (30) days free of charge trial period (“Trial Period”). In case a Trial Period is agreed to be included in the Agreement during the ordering process, the service fees are automatically charged from the Customer’s credit card for the entire Subscription Period provided that:
(i) the Customer or users authorized by the Customer continue to use the Service after the Trial Period, or
(ii) the Customer has not terminated the Account and related access to the Service before the end of the Trial Period by using the termination channel https://online.fredmangroup.com/.
4.6 Customer’s online based Account and the right to use the Service based on online subscription shall be valid and renew automatically, with same terms, after each Subscription Period until the Customer terminates the subscription to cease within the Subscription Period. Such termination shall be effective immediately if made before the end of the Subscription Period by using the termination channel https://online.fredmangroup.com/.
4.7. The fees specified in the Agreement are exclusive of value added tax. Value added tax shall be added to the fees in accordance with the then current regulations. Each Party shall be responsible for its own tax obligations towards the authorities and all payments will be made without deduction, withholding, counterclaim or set-off of any kind or nature. All payments shall be made in Euro credit card payments will be billed from Customer’s credit card immediately upon payment.
4.8 Either Party may terminate this Agreement with immediate effect, if the other Party to this Agreement commits any material breach of this Agreement and fails to remedy such
breach within fourteen (14) days after written notice. In case this Agreement is terminated,
cancelled, revoked or expired for whatever reason or cause, Customer’s right to use the Service as well as the right to use the Service by any of the users authorized or enabled by the Customer shall be terminated, cancelled or revoked accordingly and with immediate effect.
4.9 In addition to Section 4.7 and 4.8, the Supplier may terminate, suspend or restrict the Account and subscription or access to the Service, including disabling access to the Service by any of the users authorized by the Customer with immediate effect, if:
(i) Supplier suspects that the Customer has breached this Agreement or if Supplier for whatever reason is compelled to terminate, suspend or restrict the use of the Service.
(ii) Customer’s payment is overdue and/or Customer’s credit card payment is not valid or payment transaction does not succeed.
In any of the case above, the Customer accepts and acknowledges that Supplier may terminate, suspend or restrict the use of the Service without any liability to the Customer.
4.10 In the event of suspension or termination by either Party, the Customer’s
Account will be disabled, and the Customer and the Customer’s users may not be
granted access to such Account or any Customer Data or Content or Third Party Content in the Accounts, and Supplier may delete the Customer Data, the Content and Third Party Content from the Account, although residual copies of information may remain in Supplier’s systems.
4.11 In case of termination, suspension, restriction, cancellation, or change in the subscription of the Service, for any reason, the Customer is not entitled to any refund of payments made by the Customer. Possible changes in use fees related to an aforementioned situation are only valid from its effective date onwards.
V Limited End User License
5.1 Supplier grants to the Customer a non-exclusive, non-transferable, non-perpetual and revocable right to use the Service strictly in accordance with this Agreement and for the validity of the Customer’s Subscription Period.
5.2 The Customer shall be responsible and liable for the use of the Service by the Customer and by users authorized or enabled by the Customer and previously mentioned compliance with this Agreement.
5.3 The Customer agrees to use the Service only for purposes permitted by this Agreement
and any applicable laws, regulations and guidelines.
5.4 The above mentioned notwithstanding, the right to use any third party open source
software included in the provision of the Service is subject to respective open source
terms, as further defined within Section 7.2 below.
5.5 When using the Service the Customer agrees to:
(i) comply with this agreement and applicable laws and regulations, as well as guidelines as issued by Supplier and good manners; and
(ii) be responsible and liable for the use of all users authorized by the Customer in its Account and make sure them to understand and comply with the terms of the Agreement (including attachments incorporated herein).
5.6 The Customer agrees not to reproduce, duplicate, copy, sell or resell any portion of the
Service, without the express permission by Supplier.
5.7 The Customer shall be solely liable for all Customer Content (as defined below in section 7.4) and shall ensure that such Content does not breach any applicable laws or any
intellectual property rights of third parties.
VI Restrictions to the Use of Service
6.1 The Customer may use the Service only and strictly in accordance with the terms of the
Agreement. After as successful subscription of the Service, the Customer receives an Order Confirmation from the Supplier containing a reference to these Terms of Services, The Customer is responsible to assure that all users authorized or enabled by the Customer to use the Account and Service have read and understood these Terms of Service and shall adhere the Terms of Service.
6.2 The Customer is required to use the Service and related devices in such a way that no disruption is caused. The Customer is responsible for material saved to and possibly transmitted to other users or third parties through the Service and for ensuring that the material is not contrary to accepted principles of morality or the provisions of the law and the authorities nor infringe on third party intellectual property rights. If the Supplier, the authorities, or a third party claims that such material has been transferred to the Service or through it, the Supplier has the right to remove without consulting the Customer any material contrary to the terms, laws or regulations and, if necessary, interrupt or prevent the use of the Service by all the means available. The Customer is responsible and liable for any loss or changes to, delay of, or incoherence in the material transmitted through and transferred to the Service, and for any damage caused thereby.
6.3 Unless otherwise permitted in the Agreement, the Customer may not:
(i) circumvent or attempt to circumvent any usage control features of the Service;
(ii). probe, scan or test the vulnerability of the Service; or
(iii) disrupt other users of the Service or use the Service for phishing or spamming.
6.4The Customer undertakes not to use any systems or automated systems or means to reverse engineer, decompile, access, acquire, copy or monitor any part of the Service ; and not access or attempt to access the Service by any means other than through the interface’s provided by Supplier.
6.5 Customer shall use all reasonable endeavours to prevent unauthorized access to, or use of, the Account and Service. Consequently, only users authorized by the Customer in its Account are allowed to access and use the Service. In case the Customer has any reason to suspect any unauthorized access or use of the Service or Account, or if any password has been revealed to a third party, the Customer shall promptly notify Supplier.
6.6 The Supplier assigns the login information (user IDs, passwords, and other technical identifiers) solely for the use the Service for the agreed upon purpose and in accordance with the terms and conditions. After the Agreement is terminated, the Customer or any other third party or person using the service authorized or enabled by the Customer or on behalf of the Customer has no right to use the login information, unless otherwise agreed upon or stipulated by legislation.
6.7 The Supplier has the right to change the login information related to the Service if it is suspects that the information has fallen into the wrong hands or that it has been misused or where the provisions of the authorities or reasons related to the structure or technology of the data network so require. If practically possible, the Supplier is responsible for notifying the Customer of changes to the login information within a reasonable time before the change is made.
6.8 The Customer is required to store and safeguard the login information in such a way that it is not disclosed to third parties. The Customer is responsible for all use of the Service under the Customer’s login information. The Supplier has the right to request that the user ID and password meet certain conditions (e.g., password length and content) in order to maintain an adequate level of data security.
6.9 Each Party shall comply with the export laws and regulations of applicable jurisdictions in providing and using Service. Without limiting the generality of the foregoing, the Customer shall not make Service available to any person or entity that: (i) is located in a country that is subject to a European Union, United Nations or U.S. government restriction or embargo, including being identified as prohibited or restricted parties on a European
Union, United Nations or U.S. government list; or (ii) is engaged in activities directly or
indirectly related to the proliferation of weapons of mass destruction.
VII Intellectual Property Rights
7.1 The Customer acknowledges and agrees that Supplier and its licensors own all rights,
title and interest, including any copyright, patent, design right, trademark, database right
and any other intellectual property rights (whether registered or not, and wherever in the
world those rights may exist) (“Intellectual Property Rights”) in and to the Service.
Except for the Customer’s limited right to use the Service in accordance with this
Agreement, Supplier and its licensors reserve all rights, title and interest in and to the
Service, including all Intellectual Property Rights pertaining to the Service.
7.2 The Service may include, or be accompanied with, certain third party software and
materials licensed under open source license terms and the Service may include,
incorporate, refer to or link to Third Party Content. The Customer accepts and acknowledges that Intellectual Property Rights to such software and materials as well as to Third Party Content belong to third parties. Supplier shall not be liable for the legality, noninfringement, reliability, integrity, accuracy and quality of such software and materials as well as of the Third Party Content. Rights and obligations relating to such software and materials, including warranties, the rights to use, modify and redistribute are governed by the terms and conditions of each respective license terms.
7.3 Nothing in this Agreement (or any other terms and conditions referred to in this
Agreement) grants the Customer any right or license to use, in any manner whatsoever,
any Supplier or its licensors’ trade names, trademarks, service marks, logos, domain
names or any other commercial designations or distinctive brand features.
7.4 All title to and interest in intellectual property rights relating to the Content which the Customer or Customer’s users enter, upload, scrape or link (e.g. by using the so-called web clipper of the Service) into the Service (“Customer Content”) shall remain with the Customer or a third party licensor, as the case may be. Customer shall have sole responsibility for the legality, noninfringement, reliability, integrity, accuracy and quality of Customer Content. Supplier does not have any duty to monitor any Content of the Customer or a third party. The Customer hereby grants to Supplier and its subcontractors a non-exclusive, worldwide, royalty free and irrevocable right to use the Customer Content for the purpose of providing the Service to the Customer and the Customer’s users. Supplier shall not share or disclose Customer Content to third parties outside Customer’s users without Customer’s request or prior written approval. In addition, the Customer hereby grants to Supplier a non-exclusive, worldwide, royalty free, perpetual and irrevocable right to use any anonym and aggregate data included in Customer Content and/or related to the Customer’s use of the Service and the Content, for the purposes of further developing the Service, creating statistics, analyses and other material and Content on the basis of such data and for offering such statistics, analyses and materials and Content within and via the Service. Notwithstanding the foregoing, Supplier shall not share or disclose to third parties any Customer Content which is considered to be confidential.
8.1 Subject to restriction in Section 8.2 the Supplier’s provision of Service does not infringe third party intellectual property rights in the country where the Service is used.
8.2 Territorial restriction: Notwithstanding Section 8.1 and the terms and conditions in Sections 8.3, 8.4 and 8.5 Supplier’s undertakings under the Sections 8.1,8.2 and 8.1 are not valid and applicable:
A) If the third-party claim is raised in a country, which (i) is not a member state of the European Union (a member state at the time of the subscription), or (ii) not the United Kingdom, Norway, Iceland, Liechtenstein, Monaco, San Marino, or Switzerland (“Indemnification Territory”) or
B) if the third party claim is made by a third-party having its registered office not in the Indemnification Territory or
C) the claimed infringement is founded on a right which is not legally valid and in force in the Indemnification Territory. In case any of the previously mentioned situation A, B, or C occurs, the Supplier’s warranty, undertakings and indemnification in accordance with Sections 8.3, 8.4 and 8.5 does not apply and is not valid.
8.3 The Customer agrees to defend and indemnify Supplier, its directors, employees,
subcontractors, partners and agents from and against all third party claims and all
liabilities, assessments, losses, costs or damages resulting from or arising out of (i) the
Customer’s infringement or violation of any Intellectual Property Rights or persona data or privacy of a third party, (ii) misuse of the Service by a third party where the misuse was made possible by the Customer’s failure to take reasonable measures to protect the Customer’s subscription to the Service against misuse, or (iii) the Customer Content.
8.4 Subject to restriction in Section 8.2 Supplier shall at its own cost defend, indemnify and hold the Customer harmless against all claims, suits, actions and proceedings that are attributable to or based on the infringement or alleged infringement of intellectual property rights or other rights of a third party by the Service (“Claim“), for clarity, always excluding Content of a third party and Customer Content. In addition, the Supplier shall (i) pay any and all compensations, liabilities, damages, costs and expenses finally awarded by a court of competence and/or agreed to by the Supplier as a part of a settlement to be paid by the Customer, as well as (ii) compensate to the Customer reasonable attorneys’ fees incurred by the Customer as a result of or in connection with the Claim.
8.5 The Customer shall without unreasonable delay inform the Supplier of a Claim and give to the Supplier necessary authorisations and reasonably available information and
assistance, at the Supplier’s expense, to defend the Claim. If the use of the Service by the
Customer is limited or prohibited by a preliminary or permanent injunction by a court of
competent jurisdiction, the Supplier shall at its own expense and with no additional cost to
the Customer either:
(a) procure for the Customer the right of continued use of the Service;
(b) replace or modify the Service in order to eliminate the infringement, as is necessary for a non-infringing continued use by the Customer of the Service in accordance with the Agreement
(c) modify the Service in order to eliminate the infringement in such a manner that the modified Service complies with the Agreement.
If it is impossible for the Supplier to comply with either of the above alternatives (a), (b) or (c),
the Customer shall at the written request of the Supplier cease using the Service immediately and the Supplier shall return to the Customer any payments made by the Customer for the Service in advance and pertaining to the period during which Customer is not able to use the Service, if applicable.
8.6 The Supplier shall, however, not be liable if the claim
(a) is asserted by a company, which exercises control over the Customer, or which is controlled by the Customer within the definition of control laid down in the Accounting Act;
(b) results from alteration of the Service by the Customer or from compliance with the Customer’s written instructions.
(c) results from use of the Service in combination with any product or service not supplied or approved by the Supplier; or
(d) could have been avoided by the use of a released product or service that complies with the Agreement and corresponds with the service offered for use to the Customer by the supplier without separate charge.
8.7 The Supplier’s liability for infringement of intellectual property rights in the Service shall be limited to the terms and conditions set out in Section. 8.1-8.5.
IX No Warranty and Limitation of Liability
9.1 Supplier has no other obligations or liabilities than those that have expressly been agreed upon in this Agreement or otherwise between the Parties.
9.2 Neither Party shall be liable for any indirect or consequential damages, including, without limitation, loss of profits. Supplier’s total aggregate liability under or in connection with this Agreement shall be limited to five (5) per cent) of the aggregate fees paid by the Customer for Service for the last month preceding the occurrence for which damages are claimed.
9.3 Nothing contained herein shall be deemed to limit the Parties’ liability towards the other
Party in the event of and to the extent that the liability results from wilful misconduct or
9.4 The Service may create or generate certain reports, statistics and materials on the basis of the use of the Service and Customer Content. For clarity, Supplier shall not be liable towards the Customer for accuracy, reliability or validity of such reports, statistics and materials. Any decisions the Customer makes on the basis of the use of the Service or any reports, statistics, materials and content created or generated by the Service or available via the Service shall be the sole responsibility and liability of the Customer.
9.5 Unless otherwise agreed, the Service will be available for use (system uptime) in principle 24 hours a day, 365 days a year. However, the Supplier does warrant or guarantee any availability and assumes no liability in relation or arising out of related to the availability of the Service.
9.6 The Service may not be available for maintenance reasons and the Supplier shall make reasonable efforts to inform the Customer thereof. Supplier will not be responsible for internet/network-related downtimes and, in particular, for downtimes in which the Service cannot be accessed due to technical or other problems outside Supplier’s or its subcontractor’s area of influence, e.g. force majeure, or fault of third parties or Customer.
9.7 THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. THE USE OF THE SERVICE IS AT CUSTOMER’S OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICE AND ANY COMPONENT IS PROVIDED WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, PRIVACY, SECURITY, ACCURACY, TIMELINESS, QUALITY, OR NON-INFRINGEMENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY CUSTOMER FROM THE SUPPLIER OR THROUGH THE SERVICE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. WITHOUT LIMITING THE FOREGOING, THE SUPPLIER ITS AFFILIATES, AND ITS THIRD-PARTY LICENSORS DO NOT WARRANT THAT: (I) THE SERVICE OR CUSTOMER’S USE OF THE SERVICE WILL BE ACCURATE, RELIABLE, ERROR-FREE, OR CORRECT; (II) THE SERVICE OR CUSTOMER’S USE OF THE SERVICE WILL MEET CUSTOMER’S REQUIREMENTS; (III) THE SERVICE WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, TIMELY, UNINTERRUPTED, OR SECURE; (IV) ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR (V)THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ANY CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DOWNLOADED OR OTHERWISE USED AT CUSTOMER’S OWN RISK AND CUSTOMER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE, INCLUDING DAMAGE TO ANY COMPUTER SYSTEM OR MOBILE DEVICE, OR LOSS OF DATA THAT RESULTS FROM SUCH DOWNLOAD OR USE OF THE SERVICE OR ANY APPLICATION. THE SUPPLIER’S DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SERVICE OR ANY HYPERLINKED WEBSITE OR SERVICE, AND THE SUPPLIER WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN THE CUSTOMER AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.
9.8 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE ENTITIES OR ITS THIRD-PARTY LICENSORS BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES, INCURRED BY YOU OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT, ARISING FROM THE USE OF, OR INABILITY TO USE, THE SERVICE, EVEN IF THE SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES. NOTWITHSTANDING THE FOREGOING, THE TOTAL LIABILITY OF THE ENTITIES AND ITS THIRD-PARTY LICENSORS, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE), PRODUCT LIABILITY, STRICT LIABILITY, OR ANY OTHER THEORY, ASSOCIATED WITH ANY CLAIM ARISING OUT OF OR RELATING TO USE OF OR ACCESS TO THE SERVICE FOR ANY REASON WHATSOEVER SHALL BE LIMITED IN AGGREGATE TO FIVE PERCENT (5%) OF THE TOTAL AMOUNT OF MONTHLY FEES PAID BY CUSTOMER TO THE SUPPLIER FOR THE MONTH CONTRACT PERIOD IMMEDIATELY PRECEDING THE CAUSE OF ACTION BROUGHT AGAINST THE SUPPLIER (EXCLUDING ANY POSSIBLE PRICE RETURNS, PRICE REDUCTIONS, SERVICE LEVELL CREDITS AND SIMILAR DISCOUNTS AND WITHOUT ANY VALUE ADDED TAXES OR GOVERNMENTAL FEES). NO ACTION MAY BE BROUGHT AGAINSTTHE SUPPLIER MORE THAN TWO (2) MONTHS AFTER THE CAUSE OF ACTION HAS ARRISEN.
9.9 The limitations of liability set out in this section shall not apply to damages that result from indemnity obligations set out in Section 8 or from breach of confidentiality obligations set out in this Agreement or breaches of Section 7 (Intellectual Property Rights) or in cases of Supplier’s breach of Supplier’s obligations regarding processing of personal data
contained in Section 10 of this Agreement. In case of breach of confidentiality obligations
or breach of obligations relating to processing of personal data, Supplier’s total aggregate
liability shall be limited to aggregate fees paid by the Customer for Service for the last 24
months preceding the occurrence for which damages are claimed.
X Customer Service and Support
10.1 The Service does not contain any support; however the Customer may contact Supplier by email in order to receive answers regarding problems or questions concerning the Service. Unless otherwise expressly agreed, Supplier uses reasonable efforts to answer to the Customer’s initial contact as soon as practically possible after receiving the Customer’s message (answers will be provided during ordinary business days and hours applicable in Finland), however answer or solution to any issue is not guaranteed.
10.2 By submitting ideas, feedback or proposals, excluding any questions or support requests which are done by the Customer solely for the purpose of receiving support for the use of the Service, (“Feedback”) to Supplier, the Customer acknowledges and agrees that (i) Supplier may have similar development ideas to the Feedback; (ii) the Customer’s
Feedback does not contain confidential or proprietary information of the Customer or any
third party; (iii) Supplier is not under any obligation of confidentiality with respect to the
Feedback; (iv) Supplier may freely use, distribute, exploit, and further develop and modify
the Feedback for any purpose; and (v) the Customer shall not be entitled to any
compensation of any kind from Supplier.
10.3 The Service may include certain communications from Supplier and its partners, such as service announcements, administrative messages, and possible promotional messages,
etc. These communications are considered part of the Service and the users will not be
able to opt out of receiving them.
XI Confidentiality and Privacy and Personal Data
11.1 The Customer and the Supplier mutually agree to keep confidential information on each other’s business and trade secrets as well as other sensitive information received from the other Party in so far as it is marked or understood to be confidential and non-public. The Customer is responsible for ensuring that its employees and any subcontractors commit themselves to the above-mentioned obligation to confidentiality. The termination or cancellation of the Agreement does not affect the confidentiality obligation. For the sake of clarity, terms and conditions in this Section 11.1 do not limit the applicability of the Trade Secrets Act 595/2018 into this Agreement.
11.3 When processing personal data included in Customer Content or otherwise in relation to the use or subscription of the service, Supplier undertakes to comply with the confidentiality obligations set forth in this Agreement and undertakes to ensure that persons authorized to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
11.4 To the extent Supplier processes personal data on behalf of the Customer as a part of subscription or use of the Service or Customer Content or otherwise, the terms and conditions of a separate Data Processing Addendum (DPA) by and between the Parties is incorporated herein and shall be applied with respect to such personal data processing.
XII Force majeure
12.1 The Supplier is released from all contractual obligations and from the liability to pay compensation if the fulfilment of the terms of the Agreement is prevented or delayed by force majeure. Force majeure refers to an extraordinary event or circumstance that could not reasonably have been foreseen and the consequences of which cannot reasonably be overcome or avoided. Such events or circumstances may include a situation where it becomes unreasonably difficult for the Supplier to fulfil its contractual obligations, strike, lockout, national emergency, mobilization, export or import ban, cessation of manufacture, fire, thunderstorm, storm, natural disaster, administrative order, flood, water damage, cable or other such damage caused by an external party, overvoltage or other fault in the electricity or communications network, interruption of distribution of energy or other essential raw materials, or other extraordinary events or circumstances with equivalent effect beyond the Supplier’s control.
12.2 The Supplier is also released from its contractual obligations in situations where fulfilling the terms of the Agreement would involve making sacrifices that are considered unreasonable in comparison to the benefit to the Customer. If the impediment or disparity ceases to exist in reasonable time, the Customer has the right to request that the Supplier fulfils its contractual obligations. A force majeure facing a subcontractor to the Supplier is also considered as force majeure under this paragraph and therefore an exemption, if the subcontracted product or service cannot be acquired elsewhere without unreasonable cost or waste of time.
XIII Other Terms
13.1 The Agreement (including the Data Privacy Addendum set out in section 2.2) constitute the entire legal agreement between the Customer and Supplier and governs the Customer’s use of the Service. The Agreement completely replaces and supersedes any prior or contemporaneous communications, representations or agreements between the Parties, whether oral or written, regarding the subject matter of the Agreement. Each Party confirms that, in entering into this Agreement it has not relied upon any representations or statements not expressly incorporated herein.
13.2 Should any part or clause of the Agreement be hold void, illegal or unenforceable this shall not invalidate the remainder of the Agreement. The void, illegal or unenforceable part or clause shall be replaced by a new one being as close to the replaced clause as legally possible. Any amendments to the Agreement shall be agreed in writing signed by an authorized representative of each Party. Any amendments made contrary to this provision will be deemed null and void.
13.3 Each Party represent and warrant to each other that: (i) each Party is duly incorporated, validly existing under the laws of the country in which it is incorporated; and that (ii) each Party has all requisite corporate authority to execute, deliver and perform its obligations under the Agreement; and (iii) each Party has the right to enter into the Agreement.
13.4 The Supplier shall have the right to use the Customer’s name and logo as a reference on its web site.
13.5 The Agreement shall be governed by and interpreted in accordance with the laws of Finland, without reference to its conflict of laws principles. The Convention of Agreements for the International Sale of Goods (CISG) shall not apply to the Agreement.
13.6 Any dispute, controversy or claim arising out of or relating to this Agreement, or the
breach, termination or validity thereof, shall be primarily solved through negotiations. If
the Parties fail to resolve the dispute through negotiations within 14 days from the start of
the negotiations, the dispute shall be finally settled by arbitration in accordance with the
Arbitration Rules of the Finland Chamber of Commerce. The seat of arbitration shall be
Helsinki, Finland. The language of the arbitration shall be English. The number of
arbitrators shall be one (1).
Either Party, before or during any legal proceedings, may apply to a court having
jurisdiction for a temporary restraining order or preliminary injunction where such relief is
necessary to protect its interests pending completion of the legal proceedings.
Either Party may file a suit for a claim based on undisputed receivables to the District
Court of Helsinki.
Data Protection Addendum (DPA)
- Purpose and application of the annex
The purpose of this annex is to determine the rights and obligations of the Parties concerning the processing of personal data included in the Service referred to in the Agreement. This annex shall be deemed part of the Agreement as a whole and be valid together with the agreement. If there is a conflict between the annex and the Agreement and other annexes, this annex shall prevail between the Parties.
‘Processing of personal data’ collection, recording, organization, structuring, storage, alteration, retrieval, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, and erasure or destruction of personal data included in the Service.
‘Personal data’ means any information relating to an identified or identifiable natural person (such as a name, identification number, e-mail address, phone number, photograph, biometric or genetic data). An identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, identification number, location data, online identifier, or one or more factors specific to the physical, physiological, genetic, mental, economic, cultural, or social identity of that natural person.
‘Controller’ means the contracting Party who is the controller of the data in compliance with the legislation on the protection of personal data who determines the purposes and means of the processing of personal data.
‘Processor’ means the contractual Party that processes personal data on behalf of the controller.
‘Data subject’ means the identified or identifiable natural person whose data is being processed.
‘Legislation on the protection of personal data’ means the General Data Protection Regulation of the EU (679/2016) and other legislation on data protection, or the protection of privacy and the related guidelines of the authorities.
- Processing of personal data
The Parties confirm that the Customer in the processing of personal data as referred to in this annex is the controller compliant with the legislation on the protection of personal data and the Supplier is the processor of personal data acting on behalf of the Customer. The purpose of processing personal data is to produce the Service, as agreed on in the agreement, in accordance with the agreement.
The types and potential sets of data subjects to be processed in the Service have been itemized in the agreement. The agreement also itemizes the subject, duration as well as the nature and purpose of the processing.
When using the Service, the Customer shall, on its own behalf, commit itself to process personal data in compliance with the legislation on the protection of personal data. The Customer shall be responsible for ensuring that the personal data processed in the Service are necessary and faultless and have been acquired in compliance with the legislation on the protection of personal data irrespective of whether the personal data is stored in the Service by the Customer or by the Supplier. The Customer shall be responsible for ensuring that grounds for the processing of personal data compliant with the legislation on the protection of personal data exist and that information in compliance with the legislation on the protection of personal data on the processing of personal data has been submitted to the data subjects
This annex contains all the instructions given by the Customer for the processing of personal data.
The Supplier has the right to process personal data solely for producing the Service referred to in the Agreement. When processing personal data obtained from the Customer, the Supplier shall observe the valid legislation on personal data and good data processing practice.
The Supplier shall engage itself to ensure that the persons who have the right to process personal data have committed themselves to observe the secrecy obligation or are otherwise subject to an appropriate statutory obligation of secrecy. The Supplier shall be responsible for ensuring that only those persons working for the Supplier who are producing the Service referred to in the Agreement have access to the personal data.
The Supplier shall, when necessary, help the Customer in ensuring that the impact assessment concerning the processing of personal data is made in compliance with the legislation on the protection of personal data. The Supplier shall be entitled to charge for the costs incurred by this work from the Customer.
The Supplier shall make available to the Customer all of the data that are necessary as proof of following the Supplier’s obligations defined in this annex and in the legislation on the protection of personal data and allow the Customer or another auditor authorized by the Customer to conduct the audits, such as inspections, and participate in them. The audits or inspections must not cause unreasonable harm or extra work to the Supplier. The Customer shall be responsible for the costs caused by making the data available as mentioned hereinabove and for the costs of the audits and inspections conducted at the request of the Customer.
At the end of processing the data, the Supplier shall process the personal data in such a way that the data subjects are no longer identifiable without additional information, which is to be kept separately. The personal data shall be kept for a certain period of time in order to present or to defend any legal claims..