GENERAL TERMS AND CONDITIONS

End user terms – Direct sales
Version: 1.05
Effective starting: 10 Aug 2018

Inhalt:

1. GENERAL
2. SCOPE OF SERVICES
3. INTELLECTUAL PROPERTY RIGHTS
4. INDEMNIFICATION
5. PERSONAL DATA AND CUSTOMER DATA
6. SUSPENSION OF SERVICE
7. FEES
8. CONFIDENTIALITY
9. LIMITATION OF LIABILITY
10. TERM AND TERMINATION
11. GOVERNING LAW AND DISPUTES
12. OTHER TERMS
13. DEFINITIONS

1. GENERAL

1.1 These General Terms are applicable to the Agreement between the Customer and the Company and set out the terms under which the Company shall provide the Services to the Customer.

1.2 The Customer enters into the Agreement with the Company by executing an Service Supply Agreement and by accepting these General Terms and any other terms applicable to the Agreement, as appropriate.

1.3 All Services are subject to the Agreement at all times. The Services may be subject to additional third party terms and conditions, which terms and policies shall be communicated to the Customer by the Company or its subcontractors.

2. SCOPE OF SERVICES

2.1 The Services may contain Terminal Services, Web Services and Support Services. The Parties have set out the scope of the Services in the Service Supply Agreement. The Company shall provide the Services to the Customer substantially as set out in the Agreement. The Services are provided “as-is”, without any warranties unless separately agreed between the Parties in the Service Supply Agreement.

2.2 Reports as regards the Services are provided to the Customer either via e-mail or via the Online Reporting Site. The Customer agrees to keep the Online Reporting Site’s user account and credentials secure from third parties. The Customer is responsible for all actions or omissions performed using its user account.

2.3 Specific terms applicable to Terminal Services:

2.3.1 Any hardware supplied to the Customer as a part of the Terminal Services shall remain the property of the Company and the Customer shall after the expiry or termination of the Agreement at the Company’s sole discretion recycle the hardware at the Customer’s expense pursuant to the instructions provided by the Company or return the hardware to the Company at the Customer’s expense. The hardware is made available for the Customer to pick up at the Company’s premises unless separately agreed between the Parties in the Service Supply Agreement. The risk of loss as regards the hardware shall pass to the Customer once the hardware is in the Customer’s possession.

2.3.2 The hardware terminal is supplied ready for use. The terminal contains a mobile transceiver module for sending and receiving information. The Customer is responsible for ensuring that the necessary, network, data and telecommunication systems which the Terminal Services require (cellular network signal is required for uploading reports) are available. The Company is not liable for any issues arising as a result of third party carrier network providers.

2.3.3 The Customer shall, depending on the terminal model, be responsible for changing the batteries when necessary or connecting the charger to the power outlet and, if required, acquiring new batteries at the Customer’s own expense. The Customer shall also replace the SIM card when requested to do so by the Company.

2.3.4 The Customer’s contact person at the location where the terminal is in operation is responsible for checking and confirming the functioning of a terminal, as well as providing certain information upon the request of the Company (e.g., serial number in the bottom of the terminal) when the Customer receives the terminal.

2.3.5 The Customer shall operate all terminals with due care and ensure that the terminals are only operated indoors. The Customer shall keep the terminals clean.

2.3.6 In case a terminal becomes non-functional, the Company shall replace the terminal free of charge with a new one within thirty (30) days of the Customer’s written request. If, however, the Company reasonably determines that the non-functionality of the terminal is due to a reason attributable to the Customer (or its end-customers), the Company reserves the right to charge the price of the new terminal from the Customer, as well as any reasonable additional costs caused by the replacement of the terminal. For the avoidance of doubt, the new terminal provided under this Section 2.3.6 will always be the model that is currently being manufactured by the Company.

2.3.7 The Customer may not open the terminal or tamper with it in any way unless otherwise instructed by the Company.

2.4 Specific terms applicable to Web Services:

2.4.1 The Web Services are provided via a Web Smiley panel delivered to the Customer via email in the form of a script that the Customer shall include on its web site. The script must not be edited or changed in any way and must be included and implemented on the Customer’s web site in the form provided by the Company. The Web Smiley panel dimension, look, feel and position on Customer’s web page may not be changed or customized.

2.4.2 The script includes a question identifier (token) that is used by the Web Service to generate the appropriate reports.

2.4.3 Each Web Smiley panel is unique and shall not be duplicated or installed on multiple web pages. If the Customer wishes to measure satisfaction on multiple web pages, the Customer must order the appropriate number of Web Smiley panels.

2.4.4 It is the sole responsibility of Customer’s website management person to ensure that the script is deployed to the correct page(s) on Customer’s website and installed according to Supplier’s installation instructions.

2.4.5 Upon the termination of the Agreement, the Customer shall remove all Web Smiley scripts from its web sites promptly.

2.5 Specific terms applicable to Support Services:

2.5.1 The Company may offer implementation or training Services from time to time and at its sole discretion. Such Services may be accessed via a link provided to the Customer when purchasing the Services. Such training Services are provided via webinar sessions in the English language.

2.5.2 The Company offers support Services as regards technical support of the Terminal Services and Web Services. Such support is available via e-mail, using the contact information provided on the Company’s Web Site. The Company shall use its reasonable efforts to reply to e-mails without undue delay, but does not commit to any particular service levels. Support is not available during weekends and public holidays.

2.5.3 The Company may direct the Customer towards a third party partner as regards first line support.

3. INTELLECTUAL PROPERTY RIGHTS

3.1 All rights, title and interest, including all Intellectual Property Rights in and to the Services and any changes thereto shall belong exclusively to the Company or its licensors. Except for the express license to use the Services granted to the Customer under and in accordance with the terms and conditions of the Agreement, the Customer shall have no and shall not obtain any rights, license or interests in and to the Services or any Intellectual Property Rights pertaining thereto.

3.2 The Customer shall have a limited non-exclusive, non-transferable, non-sublicensable right to use the Services during the term of the Agreement in its internal business operations.

4. INDEMNIFICATION

4.1 The Company agrees to defend the Customer, at its own expense, against any third party claims or actions where a third party claims that the Services infringe upon Intellectual Property Rights of a third party valid in the European Economic Area (EEA), provided that the Customer:

4.1.1 notifies the Company of such claim immediately upon receipt of notice thereof;

4.1.2 provides the Company, free of charge, with all available information, permissions and assistance;

4.1.3 grants the Company the exclusive and sole right to control the defence of the claim; and

4.1.4 does not agree on any settlement of such claim or action prior to a final judgment thereon by a competent court of law or court of arbitration, without the express prior written consent of the Company.

4.2 If the Customer has acted in accordance with Sections 4.1.1 to 4.1.4, the Company shall pay any damages finally awarded to the third party claimant by a competent court of law or court of arbitration.

4.3 If the Company justifiably deems that the Services infringe or may infringe upon any third party rights, the Company shall have the right, at its own expense and in its sole discretion, to (a) acquire for the Customer the right to continue the use Services; or (b) replace the Services; or (c) modify the Services to the extent necessary to avoid the infringement.

4.4 If none of the alternatives defined in Section 4.3 are available to the Company on commercially reasonable terms and/or without the significant loss of time, the Company shall have the right to terminate the Agreement in whole or in part subject to a notice period set by the Company, upon which the Customer agrees to cease using the Services, and the Company agrees to reimburse the Fees paid by the Customer for the terminated Services, less a proportion equal to the time of use of the Services by the Customer.

4.5 The indemnity in this Section 4 shall not apply to, and the Company is not liable for any claim that (a) is based on a claim by any Customer Affiliate; or (b) is based on the modification or alteration of the Services or a modification or alteration influencing the Services by the Customer or any third party; or (c) results from complying with any instructions, specifications or design given by the Customer or any third party under the command and control of the Customer; (d) arises or results from the use of the Services in combination with any software, equipment or products not developed or supplied by the Company or which are contrary to instructions given by the Company; or (e) could have been avoided by using the latest version of the Services made available by the Company to the Customer.

4.6 This Section 4 sets out the entire liability of the Company and the Customer’s sole remedy in case of any infringement of any Intellectual Property Rights.

5. PERSONAL DATA AND CUSTOMER DATA

5.1 To the extent the Customer submits, processes or stores any personal data in to the Services, the Company (or its subcontractor where appropriate) processes such data on behalf and for the benefit of the Customer while the Customer remains at all times the data controller for such personal data. The Company processes data submitted by the Customer to the Company in accordance with the applicable laws, decrees and regulations. The Customer represents and warrants that it is authorized to instruct the Company and its subcontractors to process such personal data. The Customer represents and warrants that it has the right to collect the personal data provided to the Company for processing.

5.2 The Company provides the Customer information on where the Company’s or its subcontractors’ servers are located at. The Customer shall be solely responsible for ensuring that it has the right to transfer personal data to the countries where the hosting partner’s servers are located.

5.3 The Customer is solely responsible for making appropriate backups of its data, and the Company or its subcontractors shall in no way be liable for any deletion of or failure to store any data of the Customer or other communications maintained or transmitted to the use of the Services.

5.4 After the termination of the Agreement for any reason, the Company shall retain the Customer’s data for thirty (30) days and make it available to the Customer via the Company’s Web Site. After the thirty (30) days’ period, the Company shall have the right to destroy the Customer’s data without any liability towards the Customer.

5.5 As part of the HappyOrNot Service offering, anonymous data on customer or employee experiences are collected and stored stored in the virtual private cloud in a designated secure location chosen by the Company. The company reserves the right to use this non-personally identifiable data to provide general statistics about end-user satisfaction or insights into potential customer experience and employee engagement benchmarks across industries and to make any derived analysis commercially available at its discretion. The Company also reserves the right to use this data for the purposes of marketing or customer awareness campaigns as it deems appropriate. That notwithstanding, at no time does the company collect personally identifiable information nor will it reference the Customer’s use of the HappyOrNot service without its prior written consent.

6. SUSPENSION OF SERVICE

6.1 The Company shall have the right to suspend the provision of the Services for a reasonable period of time without any liability towards the Customer if this is necessary in order to perform installation, change or maintenance work in respect of the Services or if such suspension results from installation, change or maintenance work in respect of public communication networks. The Company shall also have the right to suspend the provision of the Services due to a data security risk to the Services or if law or administrative order requires the Company to do so.

6.2 The Company shall always have the right to suspend the Services without any liability towards the Customer, if the Customer is in default with its payment of the Fees due under the Agreement and does not pay such Fees despite a request to pay within fourteen (14) days calculated from the date of such request. The suspension can be continued until the Customer has paid all Fees due under the Agreement.

6.3 The Company shall have the right suspend the provision of the Services and to deny the Customer’s access to the Services without first hearing the Customer, without any liability towards the Customer, if the Company reasonably suspects that the Customer burdens or uses the Services contrary to the Agreement, applicable laws or administrative orders or for a purpose prohibited by the Agreement, applicable laws or administrative orders or in a manner that jeopardizes the provision of the Services to other users.

7. FEES

7.1 The Fees for the Services have been set out in the Purchase Order. Any Services, not expressly defined in the Purchase Order as being included in the Fees shall be charged in accordance with the Company’s price list as in force from time to time.

7.2 Fees for the use of the Services shall be invoiced in advance for the applicable invoicing term, which shall be twelve (12) months unless agreed to the contrary in the Purchase Order.

7.3 The Company reserves the right to increase the rates applicable to the Services where this is justified due to the general increase of the Company’s costs and expenses of production (such as but not limited to general increase of labour costs and expenses), or in the case of increase of costs of third party offerings. The Company shall inform the Customer of such change at least thirty (30) days before the effective date of the change. In such a case the Customer shall have the right to terminate the Agreement subject to thirty (30) days’ prior written notice. The termination notice must be delivered to the Company in writing prior to the effective date of the change.

7.4 All rates and Fees are set out without value added tax (VAT) or any other applicable sales tax, which shall be added to the rates and Fees in accordance with the then-applicable tax laws and regulations.

7.5 In case a separate invoice is sent, the term of payment of each invoice shall be fourteen (14) days net from the date of the invoice.

7.6 Overdue interest on any amounts overdue shall accrue in accordance with the applicable Finnish Interest Act (Korkolaki 1982/633, as amended).

8. CONFIDENTIALITY

8.1 Each Party shall keep in confidence all material and information received from the other Party and marked as confidential or which should be understood to be confidential (“Confidential Information”), and may not use such Confidential Information for any other purpose than those set forth in the Agreement. The confidentiality obligation shall, however, not apply to material and information, (a) which is or later becomes generally available or otherwise public; or (b) which the receiving Party has received from a third party without any obligation of confidentiality; or (c) which was rightfully in the possession of the receiving Party prior to receipt of the same from the disclosing Party without any obligation of confidentiality related thereto; or (d) which a Party has independently developed without any use of or reference to the Confidential Information received from the other Party.

8.2 The obligations of confidentiality in Section 8.1 above shall not prevent a Party from disclosing Confidential Information where it is required to do so under any mandatory law, or by order of a court or governmental body of authority of competent jurisdiction, or by any mandatory requirement of a regulatory authority. If legally possible and applicable, the recipient of such order shall notify the disclosing Party to allow a reasonable opportunity to seek protective order or equivalent or to appeal, and to extent reasonably possible, make effort to protect any sensitive information.

8.3 Each Party shall promptly upon termination of the Agreement, or when the Party no longer needs the Confidential Information in question for the purpose of performing its obligations or exercising its rights under the Agreement, cease using the Confidential Information received from the other Party and, unless the Parties separately agree on destruction of such Confidential Information, return the Confidential Information in question (including all copies and reproductions thereof) to the other Party. Each Party shall, however, be entitled to retain the copies required by law or administrative orders applicable to such Party.

8.4 Notwithstanding the confidentiality obligation set forth herein, each Party shall be entitled to use the general professional skills and experience acquired in connection with the performance of the Agreement.

8.5 The rights and obligations related to the Confidential Information shall survive the termination of the Agreement for any reason for a period of three (3) years from such termination.

9. LIMITATION OF LIABILITY

9.1 The total aggregate liability of a Party towards the other Party under the Agreement shall not exceed the amount of Fees for Services paid by the Customer to the Company during the twelve (12) months immediately preceding the event giving rise to liability.

9.2 A Party shall not be liable for any indirect, incidental, or consequential damages, loss of profits, revenue or business, damages caused due to decrease in turnover or production or loss, alteration, destruction or corruption of data.

9.3 The limitations of liability shall not apply to damages caused by willful misconduct or gross negligence or to liability under Section 4 (Indemnification) or Section 8 (Confidentiality) or to the Customer’s obligation to pay the applicable Fees.

10. TERM AND TERMINATION

10.1 The Agreement shall enter into force on the date set out in the Purchase Order.

10.2 The Agreement shall remain in force for the Term as in the signed Service Supply Agreement, after which the Service Supply Agreement shall automatically be renewed for the same Term period unless unless terminated by a Party at least sixty (60) days prior to the end of the then-current term.

10.3 Each Party may terminate the Agreement for cause (in Finnish: “Purkaa”) with immediate effect upon written notice to the other Party if:

10.3.1 the other Party becomes insolvent, applies for or is adjudicated in bankruptcy or liquidation or corporate restructuring or otherwise ceases to carry on its business; or

10.3.2 the other Party is in material breach of the terms and conditions of the Agreement and fails to remedy such breach within thirty (30) days from the date of receipt of a written notice by the non-defaulting Party, such written notice detailing the breach and the intention to terminate.

10.4 Upon the termination of the Agreement, any Fees owed by the Customer for any Services provided until the effective date of the termination shall become immediately due. All Fees are non-refundable.

11. GOVERNING LAW AND DISPUTES

11.1 The Agreement shall be governed by and construed in accordance with the substantive laws of Finland, excluding its choice of law provisions. The Finnish Sale of Goods Act (355/1987) and the CISG shall not be applied to this Agreement.

11.2 All disputes arising out of or relating to the Agreement shall be primarily settled by amicable negotiations between the Parties. Should the Parties fail to reach an outcome acceptable to both Parties as a result of the negotiations within thirty (30) days from the date when a Party has requested in writing to commence with the aforementioned negotiations, the dispute shall be finally settled in arbitration in accordance with the Arbitration Rules of the Finland Chamber of Commerce. The arbitration shall take place in Helsinki, Finland and the language to be used in the proceedings shall be English.

11.3 Notwithstanding anything set out in Section 11.2 above, the Company shall have the right to claim unpaid Fees in a public court.

12. OTHER TERMS

12.1 The Company shall be free to use subcontractors in the performance of its obligations and exercise of its rights under the Agreement. The Company shall be liable for the acts and omissions of its subcontractors under the Agreement as for its own.

12.2 HappyorNot may use Customer name and logo as part of a list of customers and may refer to Customer as a user of its Services in its advertising and marketing activities and Customer further agrees to participate in other marketing activities which may include but not be limited to writing references and case studies, speaking at HappyOrNot or HappyOrNot sponsored events and participation in HappyOrNot or HappyOrNot sponsored webinars. Each Party shall obtain the other Party’s permission, not to be unreasonably withheld, prior to using the other Party’s name, logos, or other trademarks for any other marketing or promotional purposes. The Parties agree that any press release or other public comments issued by either Party relating to this Agreement (including, without limitation, any dispute under this Agreement), or your subscription to or use of the Services, will be prepared jointly between HappyOrNot and you and will be issued only upon mutual agreement of the Parties.

12.3 Neither Party shall be liable for any delays or non-performance of its obligations or any damages caused by an impediment beyond its reasonable control, which it could not have reasonably taken into account at the time of entering into the Agreement, and whose consequences it could not reasonably have avoided or overcome. For instance, errors in public communication networks or electricity supply shall constitute such an impediment. Strike, lockout, boycott and other industrial action shall constitute a force majeure event also when the Party concerned is the target or Party to such action. A force majeure event suffered by a subcontractor of Party shall also discharge such Party from liability, if the work to be performed under subcontracting cannot be done or acquired from another source without incurring unreasonable costs or significant loss of time. Each Party shall without delay inform the other party in writing of a force majeure event and the termination of the force majeure event.

12.4 All formal notices and other formal communication between the Parties hereunder shall be made in the English or Finnish language.

12.5 Neither Party shall have the right to assign or transfer all or any of its rights, benefits and obligations under the Agreement without the prior written consent of the other Party, which consent shall not be unreasonably withheld or delayed. The Company shall, however, have the right to assign the Agreement in connection with a sale or transfer of its business or a relevant part thereof.

12.6 Any terms and conditions that by their nature or otherwise reasonably should survive a cancellation or termination of the Agreement shall also be deemed to survive.

13. DEFINITIONS

13.1 “Affiliate” of a Party means any legal entity that is (a) directly or indirectly owning or controlling the Party, or (b) under the same direct or indirect ownership or control as the Party, or (c) directly or indirectly owned or controlled by the Party, for so long as such ownership or control lasts. Ownership or control shall exist through direct or indirect ownership of more than fifty percent (50 %) of the nominal value of the issued equity share capital or more than fifty percent (50 %) of the shares entitling the holders to vote for the election of the members of the board of directors or persons performing similar functions;

13.2 “Agreement” means the agreement between the Company and the Customer, consisting of these General Terms and any other terms applicable to the Services;

13.3 “Company” means HappyOrNot Oy (Business ID 2260302-1), a company duly registered under the laws of Finland, having its principal place of business at Vuolteenkatu 20, 33100 Tampere, Finland;

13.4 “Confidential Information” shall have the meaning set out in Section 8.1;

13.5 “Customer” means the company entering into the Agreement with the Company;

13.6 ”Fee(s)” means the compensation paid by the Customer to the Company for the Services;

13.7 “General Terms” means these General Terms and Conditions;

13.8 “Intellectual Property Rights” means: (i) patents, inventions, designs, copyright (including the right to amend, modify, develop and assign) and related rights, database rights, trade marks and related goodwill, trade names (whether registered or unregistered), and rights to apply for registration; (ii) proprietary rights in domain names; (iii) knowhow and confidential information; (iv) applications, extensions and renewals in relation to any of these rights; and (v) all other rights of a similar nature or having an equivalent effect anywhere in the world;

13.9 “Parties” and “Party” means the Company and the Customer jointly and separately;

13.10 “Service(s)” means the Terminal Services, the Web Services and the Support Services, as well as any other services agreed to be provided by the Company to the Customer;

13.11 “Service Supply Agreement” means the agreement entered into by the Company and the Customer, to which the General Terms are attached to;

13.12 “Support Services” means the support services provided by the Company or its third party partner to the Customer, as set out in the Agreement;

13.13 “Terminal Service(s)” means the customer satisfaction tracking and analysis services based on hardware terminals provided by the Company to the Customer, as set out in the Agreement; and

13.14 “Web Service(s)” means the customer satisfaction tracking and analysis services based on web site scripts provided by the Company to the Customer, as set out in the Agreement.

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