Last updated 14 October 2016
THESE GENERAL TERMS OF SERVICE (hereinafter the “Terms”) apply to the sale and supply of the Platform, the Professional Services, and the Help Desk Services, as defined below, by Frosmo Ltd or Frosmo Pte Ltd (hereinafter “Frosmo”) to the Customer.
The contracting party of Frosmo (Frosmo Ltd or Frosmo Pte Ltd) is stated in the Agreement.
By signing the Agreement between Frosmo and the Customer, the Customer has agreed that these Terms are incorporated into the Agreement.
In case of any discrepancy between these Terms and the Agreement or any other appendices, the terms of the Agreement shall prevail.
“Access Right” means the non-transferable, non-exclusive, revocable right granted to the Customer during the Term of the Agreement to access and use the Platform.
“Additional Features” means features, software or other material developed as a result of the Professional Services of Frosmo and/or by the Customer during the term of the Agreement, which have subsequently been incorporated by Frosmo into the Platform.
“Agreement” means the service agreement (and its appendices) entered into between Frosmo and the Customer.
“Customer Applications” shall mean the website or websites operated and controlled by the Customer for which the Service is used.
“Customer Data” means all electronic data or information of the Customer Applications submitted to the Platform.
“Fees” means the amounts specified in the Agreement payable by the Customer for the Services.
“Help Desk Services” are defined in the Agreement and in Section 5.4 of these Terms. The Customer shall submit the requests for Help Desk Services to the email address email@example.com .
“Intellectual Property Rights” means any and all patents, utility models, design rights, copyright, domain names, software, trademarks, trade names, service marks and any other intellectual property rights in any jurisdiction worldwide, irrespective of whether such rights can be subject to registration or not, and applications for registration of any of the aforementioned respectively as well as any trade secrets.
“Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
“Monthly Sessions” means the monthly amount of visits at the Customer Applications as registered by the Frosmo Platform. A visit consists of a series of page views and/or actions that a visitor makes during a period of activity. A visit ends after the visitor either clears the browser data or is inactive for 30 minutes.
“Personal Data” means the personal data contained in the Customer Data as defined in the applicable data protection legislation.
“Platform” is defined in the Agreement.
“Professional Services” is defined in the Agreement.
“Services” means the Platform together with the Professional Services and Help Desk Services provided by Frosmo to the Customer.
“Start Date” is defined in the Agreement.
Frosmo may revise these Terms from time to time. If we do, those revised Terms will supersede prior versions. Unless stated otherwise, revisions shall be effective upon the effective date indicated at the top of these Terms.
Frosmo shall provide the Customer with three (3) months advance notice by email of any changes to these Terms. If the Customer does not agree to the changes, the Customer has the right to terminate the Agreement by notifying Frosmo thereof in writing within thirty (30) days from the date of the said notice. If the Customer decides to terminate the Agreement, the Agreement shall terminate after three (3) months from the receipt of the notice of termination by Frosmo (during which period the old Terms shall apply).
Frosmo is committed to a high level of quality and industry standards regarding the Service. Accordingly, Frosmo aims to develop the Platform pursuant to its global production development plans and the Platform shall correspondingly benefit from the said development and enhancements. The Customer may provide reasonable requests and/or proposals to Frosmo regarding the future development of the Platform. For the sake of clarity it is hereby agreed that Frosmo has no obligation to develop the Platform as requested and/or proposed by the Customer and the future development of the Platform is at the sole discretion of Frosmo.
On or before the Start Date Frosmo shall provide the Customer with:
security passwords to enable the Customer to obtain access to the Platform; and
The email address to access the Help Desk Services.
The Customer shall use the Services for its own internal business purposes and shall not make use of the Services on behalf of or for the benefit of any third party.
Frosmo shall use commercially reasonable efforts to make the Platform available to the Customer twenty-four (24) hours a day, seven days a week, excluding (i) the necessary maintenance breaks, with 24 hour notice and (ii) any unavailability caused by computer, telecommunications, Internet service provider or hosting facility failures or delays involving hardware, software or power systems not within the possession or reasonable control of Frosmo. Frosmo strives to achieve the highest possible availability of the Platform over the Internet and guarantees a 98 percent calendar monthly uptime of the Platform.
Frosmo shall provide the Help Desk Services to the Customer during the hours of Central European Time (“CET”) 8.00 am – 4.00 pm each Finnish business day. The Help Desk Services shall be operated by email only and in the English/Finnish language. Frosmo shall react to all emails within 24 hours from the receipt of the email during business days. Emails received during non-business days shall be deemed to be received CET 8.00 am on the following business day.
The Customer agrees to:
use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify Frosmo promptly of any such unauthorized access or use;
use the Services only in accordance with applicable laws, and
be solely responsible for all of its own actions and/or omissions in relation to the use of the Services.
Except as expressly permitted by the Agreement and these Terms, the Customer shall not attempt to obtain access to or interfere with any programs or data of Frosmo or of any other customer of Frosmo and shall indemnify Frosmo against any loss, damage or liability which Frosmo may sustain or incur as a consequence of the Customer failing to comply with such undertaking.
The monthly Platform Fee and the monthly Resource Reservation Fee of Professional Services shall be invoiced in advance on a monthly basis on the first day of the month. The Fee for additional hours of Professional Services and other non-recurring items, if any, shall be invoiced in arrears on a monthly basis.
The Platform Fee is based on the amount of monthly Sessions of the Customer Applications. If the six (6) month average number of monthly Sessions exceeds the previous amount of monthly Sessions, Frosmo has the right to increase the Platform Fee accordingly subject to providing the Customer with no less than fourteen (14) days’ prior notice in writing.
If the actual amount of Professional Services hours per calendar month is less than the monthly Resource Reservation agreed in the Agreement, the difference shall be automatically transferred to the following calendar month within each respective review period.
The review period for the monthly Resource Reservation of Professional Services is every six (6) months starting from the end of the first month of the Agreement (as defined by the Start Date), unless otherwise agreed in the Agreement. Any unused hours shall be zeroed at the end of the review period. Frosmo shall not compensate or credit unused hours.
If the amount of Professional Services needed by the Customer exceeds the monthly Resource Reservation stated in the Agreement, the Customer can adjust the hour package subject to email confirmation by the representatives of both Parties. An upward adjustment shall enter into force on the calendar month following the month during which the request was sent.
Respectively, if the amount of Professional Services needed by Customer is less than the monthly Resource Reservation stated in the Agreement, the Customer can adjust the hour package to no less than 40 hours per month subject to email confirmation by the representatives of both Parties. A downward adjustment shall enter into force three (3) calendar months following the month during which the request was sent.
All Fees stated in the Agreement or its Appendices are exclusive of all applicable taxes, levies or duties imposed by taxing authorities, and the Customer shall be responsible for payment of all such taxes, levies or duties, excluding only taxes based on the income of Frosmo.
If the indirect costs related to performing the Services, such as employer, licensing or mandatory fees increase, Frosmo has the right to raise all its fees accordingly. The price increase shall come into force in the following month, once the Customer has been notified in writing. Otherwise, Frosmo has the right to adjust its Fees after notifying the Customer three (3) months prior to such change.
If the Customer does not agree to the increase of Fees stated above, the Customer has the right to terminate the Agreement by notifying Frosmo thereof in writing within thirty (30) days from the date of the said notice. If the Customer decides to terminate the Agreement, the Agreement shall terminate after three (3) months from the receipt of the notice of termination by Frosmo (during which period the old Fees shall apply).
Neither Party may set off the claim or receivables of the other Party.
Fees are based on Services purchased, not on actual usage;
Fees paid are non-refundable, and
The Fees are based on calendar months. The Fees shall be prorated using thirty (30) days, if the Start Date and the end date of the Services are not full calendar months.
Unless otherwise stated in the Agreement:
All prices are quoted and payable in EUR;
The terms of payment is 30 days net from the date of a valid invoice; and
Interest on overdue payments shall accrue at the rate of 1.25% per month.
If the Customer’s account is sixty (60) days or more overdue, Frosmo reserves the right, without limiting its other rights and remedies, to suspend the Services provided to the Customer by giving the Customer prior written notice and a fourteen (14) days period within which to pay any such overdue Fees, until such amounts are paid in full. Frosmo shall not exercise its right to suspend the Services due to non-payment if the applicable charges are subject to a reasonable and good-faith dispute and the Customer is cooperating diligently to resolve the dispute.
Each Party represents and warrants that it will not transmit to the other Party any Malicious Code.
Frosmo warrants that:
it will provide the Services in a manner consistent with general industry standards reasonably applicable to the provision thereof;
it shall perform the Services materially in accordance with the Agreement and these Terms;
the functionality of the Services shall not be materially decreased during the term of the Agreement;
it owns or otherwise has sufficient rights in the Services in order to grant the Customer the Access Rights to use the Services; and
the Services do not infringe any third party Intellectual Property Rights.
Except as expressly provided herein, Frosmo excludes all warranties, representations, terms, conditions or other commitments of any kind, whether express or implied terms, statutory or otherwise, and Frosmo specifically disclaims all implied warranties, including (without limitation) any warranties, representations, terms, conditions or other commitments of merchantability or fitness for a particular purpose or of satisfactory quality, in each case, to the maximum extent permitted by applicable law.
Frosmo has the right to use the Customer Data only for the purposes of this Agreement and the Services provided to the Customer. Notwithstanding the aforementioned, Frosmo shall have the right to use the Customer Data for the purposes of improving the Service and to carry out statistical analysis.
The Customer Data, including but not limited to the Personal Data of the Customer (as defined below), shall be and shall remain the property of the Customer. Frosmo shall treat as confidential and keep secret all information contained or embodied in the Customer Data.
Frosmo shall provide the Customer with the Customer Data no later than one (1) month after the end of the Agreement. The Customer Data shall be delivered in an electronic form mutually agreed by the Parties or if no agreement is reached, Frosmo shall make the segmentation information of the users of the Customer Application(s) available to the Customer through browser cookies (or similar technical means) stored on the browsers of the users. Frosmo shall have the right to charge for the collection, processing and delivery of the aforementioned Customer Data.
The Customer hereby notifies Frosmo that the Customer Data contains or may contain Personal Data and warrants to Frosmo that the Customer is and will be in full compliance with applicable legislation at all times during the continuance of the Agreement.
If the Customer Data contains Personal Data, the Customer shall act as a data controller under the applicable data protection laws and regulations and shall have sole responsibility for the accuracy, quality, integrity, legality, reliability and relevance of the Customer Data (including Personal Data) and of the means related to the acquiring of the Customer Data.
The Customer warrants and undertakes to Frosmo that:
The Personal Data of the Customer has been obtained and processed lawfully (in so far as the Personal Data of the Customer has been processed);
The Services provided by Frosmo under this Agreement shall be entirely consistent with and appropriate to the specified and lawful purposes for which the Customer is engaged in;
The Customer has not until now and will not during the continuance of this Agreement use or disclose the Personal Data of the Customer or any part thereof in a manner incompatible with applicable legislation;
The Personal Data of the Customer is accurate and the Customer shall keep the Personal Data of the Customer fully up to date at all times during the continuance of this Agreement;
The Customer shall promptly delete the Personal Data of the Customer or any part or parts thereof as soon as it or they shall no longer be required; and
The Customer shall be responsible for downloading or making copies of the Personal Data of the Customer or any part or parts thereof to provide access under applicable legislation.
The Customer shall indemnify Frosmo against any loss or damage, which Frosmo may sustain or incur as a result of any breach by the Customer of the data protection provisions stated above.
Frosmo hereby acknowledges that Frosmo is a data processor of the Personal Data of the Customer under applicable data protection laws and regulations and shall:
Process the Personal Data of the Customer in accordance with these Terms, the instructions of the Customer, as well as, applicable data protection laws and regulations; and
Be responsible for processor notifications, if any, to the relevant data protection authorities.
In the event that the Customer makes suggestions, improvements or modifications to the Platform or to the results of the Professional Services regarding any features, functionality or performance, all rights, title and interest, including all Intellectual Property Rights to such suggestions, improvements, modifications, features, functionality or performance shall automatically transfer and become the sole and exclusive property of Frosmo. The transfer of Intellectual Property Rights under this Section includes also the right to modify and further assign such materials and thereto related Intellectual Property Rights.
The Customer shall be the exclusive holder of all rights in and to its own products and services. Furthermore, the Customer shall be entitled to use the results of the Professional Services through and as a part of the Services.
If the Customer or the Customer together with the Professional Services of Frosmo has developed Additional Features that Frosmo has subsequently incorporated into the Platform, the Customer hereby grants Frosmo a non-exclusive, perpetual, irrevocable, fully paid up, royalty free, worldwide, sub-licensable, transferable and unlimited license to use, distribute, make available to the public, license, copy, reproduce, amend, change, modify, adapt and further develop, incorporate in other products or services and otherwise commercially exploit in any way such Additional Features. The above license shall survive any termination or expiration of the Agreement.
Frosmo shall indemnify, defend and hold harmless the Customer against any liability, claims, actions, damages and costs, including but not limited to reasonable attorneys’ fees and costs, relating to the infringement by the Services or the use of the Services of any third party intellectual property rights. Frosmo has the right to take full control of such proceedings.
Neither Party shall be liable under or in relation to this Agreement or its subject matter (whether such liability arises due to negligence, breach of contract, misrepresentation or for any other reason) for any:
Loss of profits;
Loss of revenue;
Loss of or damage to business or reputation;
Loss of contracts or customers or data;
Wasted management or other staff time;
Losses or liabilities under or in relation to a contract concluded with a third party; or
Indirect, punitive, special or consequential losses or damages.
Notwithstanding anything contrary in the Agreement and these Terms, under no circumstances shall the total aggregate liability of Frosmo under or in relation to the Agreement or its subject matter (whether such liability arises due to negligence, breach of contract, misrepresentation or for any other reason) not exceed the amount actually paid by the Customer to Frosmo during the twelve (12) month period immediately preceding the claim.
Either Party shall have the right at any time by giving a written notice to the other Party to terminate the Agreement forthwith in the following events:
If the other Party commits a material breach of its obligations under this Agreement and if such breach is not remedied within thirty (30) days from the date of the receipt of the said written notice from the other Party identifying the breach and requiring its remedy; or
If the other Party shall enter into liquidation, whether compulsory or voluntary, other than for the purpose of amalgamation or reconstruction or shall compound with its creditors or have a receiver appointed of all or any of its assets.
Upon termination of the Agreement for any cause:
The Customer shall immediately discontinue any and all use of the Platform (including thereto connected software and APIs) and the Services; and
Both Parties shall immediately return to the other Party all materials of the other Party.
Any termination of the Agreement shall not affect any accrued rights or liabilities of either Party nor shall it affect the status of any provision of the Agreement, which is expressly or by implication intended to come into or continue in force on or after such termination.
Each Party (“Receiving Party” for the purposes of this Section) shall not disclose to third parties nor use for any purpose other than for the proper fulfilment of the purpose of the Agreement any technical, financial or commercial information (“Information” for the purposes of this Section) received from the other party (“Disclosing Party” for the purposes of this Section) in whatever form under or in connection with the Agreement, in particular with the Customer Data, the Services and the underlying software and technology, without the prior written permission of the Disclosing Party. The above mentioned limitations shall not apply to Information which;
Is already known to the Receiving Party or its representatives or to others not bound by a duty of confidentiality prior to disclosure;
Becomes publicly available through no fault of the Receiving Party or its representatives;
Is independently developed by the Receiving Party without the use of or reference to the Information of the Disclosing Party; or
Properly comes into the possession of the Receiving Party from a third party who is not under an obligation to maintain the confidentiality of such Information.
Each Party shall limit access to Information to those of its personnel for whom such access is reasonably necessary for the proper performance of the Agreement. The personnel with access to Information shall be bound by confidentiality obligations not less restrictive than those provided for in this Section.
This Section shall be binding upon the Parties and survive the expiry and termination of this Agreement.
Neither of the Parties shall be liable for any failure or delay in performance hereunder due to any cause beyond its reasonable control which cause occur after the Effective Date of the Agreement and were not reasonably foreseeable at that time including, but not limited to, war, fire, governmental acts, natural disasters, epidemics and strike or lock-out. In case the performance of its obligations hereunder becomes impossible or delays due to any cause mentioned above, the Party so affected shall immediately notify the other Party of the occurrence of such cause and use its best efforts to remove or overcome such cause of non-performance.
A force majeure event suffered by a subcontractor of a Party shall also discharge such a Party from liability if subcontracting from another party cannot be made without unreasonable costs or a significant loss of time.
In the event that such non-performance by either Party continues for the period longer than three (3) months, either Party shall have the right to terminate the Agreement with immediate effect without any liability towards the other Party.
The Agreement and these Terms shall be governed by and construed in accordance with the laws of Finland without regard to its choice of law provisions.
Any dispute, controversy or claim arising out of or in connection with the Agreement and these Terms shall be finally settled under the Rules of Arbitration of the Finnish Central Chamber of Commerce by a sole arbitrator appointed in accordance with the said Rules. The arbitration shall be conducted in Helsinki, Finland in the English language. The award shall be final and binding on the Parties.
Any dispute, controversy or claim arising out of or relating to the Agreement including but not limited to the possibility or existence of the proceedings, the proceedings themselves, oral statements made during the course of the proceedings, documents and other information submitted by the Parties or prepared by the Court or the arbitrator, and the final award shall be deemed Confidential Information under Section Confidentiality of these Terms.
Nothing in this Section shall be deemed to limit the Parties’ rights to seek interim injunctive relief or to enforce an arbitration award in any court of law.
Any notice under the Agreement given by each Party to the other Party shall be in writing and be effective upon delivery as follows:
When sent by email to the email address specified in the Agreement, or to the address updated by each Party to the other Party; or
When delivered by registered mail, return receipt requested, to the official address specified in the Agreement; or to the address updated by each Party to the other Party; and
Any such notice, in either case, must specifically reference that it is a notice given under the Agreement.
Frosmo shall have the right to use subcontractors (including its affiliated companies) in the performance of its obligations under the Agreement. Without limiting the generality of the foregoing, at the Effective Date of this Agreement (subject to change as deemed appropriate by Frosmo) in Europe Frosmo uses Amazon’s S3 cloud service and outside of Europe, Frosmo uses Cloudfront. Each Party shall be liable for the performance of its subcontractors as for its own performance.
The Agreement contains the entire agreement between the Parties and supersedes all oral statements and prior writings relating to the subject matter hereof.
The Agreement may be amended, modified and/or supplemented only by written agreement of the Parties. Any such amendment shall be signed by an authorized signatory of Frosmo.
Failure by any Party at any time or times to require performance of any provision of the Agreement shall in no manner affect its right to enforce the same, and waiver by any Party of any breach of any provision of the Agreement shall not be construed to be a waiver by such Party of any succeeding breach of such provision or waiver by such Party of any breach of any other provision hereof.
The Agreement is intended to be solely for the benefit of the Parties and is not intended to confer any benefits upon, or create any rights in favor of, any person other than the Parties. Assignment of the Agreement or assignment or delegation of all or any of the rights or obligations hereunder by any Party shall not take place without the written consent of the other Parties. Frosmo may however transfer this Agreement and the rights and obligations hereunder to such a third party to whom the business activities related to this Agreement have been transferred. Frosmo may also transfer this Agreement to any company belonging to the same group of companies as Frosmo by notifying the Customer thereof in writing.
The descriptive headings of the Agreement are inserted for convenience only and do not constitute a part of the Agreement.
Both Parties shall bear their own fees, expenses and costs incurred in connection with the preparation, execution and performance of this Agreement and the contemplated cooperation of the Parties.
The Agreement or a section or a sequence therein shall not be interpreted to the detriment of a Party merely by the fact that the Agreement or the relevant part thereof has been drafted by a Party or a counsel engaged by the said Party.