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Applies to Agreements signed on or after 1st of February 2020

1. Applicability

• 1.1. THESE TERMS OF SERVICE (the

“Terms”

• ) are an integral part of the Subscription Agreement (the

“Agreement”

• ) and any subsequent Order Forms and Amendments signed between Frosmo Ltd and the Customer (the

“Parties”

• ).

1.2. In case of any discrepancy between these Terms and the Agreement or any other appendices, the terms of the Agreement shall prevail.

2. Definitions

• 2.1.

“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 Frosmo Platform.

2.2. “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.

2.3. “API” or “Javascript” means an application programming interface provided by Frosmo to the Customer strictly for the purposes of the Agreement to enable the Customer to integrate the agreed Customer Applications with the Platform.

2.4. “Customer Applications” means the website or websites operated and controlled by the Customer for which the Platform is used.

2.5. “Customer Data” means all electronic data or information of the Customer Applications submitted to the Platform.

2.6. “Effective Date” is stated on the Agreement and subsequent Order Forms and Amendments.

2.7. “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.

2.8. “Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.

2.9. “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.

2.10. “Personal Data” means the personal data contained in the Customer Data as defined in the applicable data protection legislation.

2.11. “Platform” means the SaaS software developed and maintained by Frosmo. The full description of the Platform is available in the public documentation portal of Frosmo at https://docs.frosmo.com/ which descriptions may be updated by Frosmo from time-to-time.

2.12. “Services” means the Platform, Support Services, and possible Professional Services provided to the Customer.

2.13. “Support Services” are defined in the Support and Maintenance Services Description that is presented as Annex 3 to the Agreement. The Customer shall submit the requests for Support Services to the email address support@frosmo.com.

2.14. “Professional Services” are defined below in section 6. and in the respective Order Form.

3. Changes to these Terms

• 3.1. 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.

3.2. 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).

4. Services

• 4.1. During the Term of the Agreement Frosmo agrees to:
  • a. Grant an Access Right to the Customer to use the Frosmo Platform;

 

• • b. Provide the Customer with the Support Services;

 

• • c. Provide the Customer with the Professional Services as stated in the Agreement or Order Form.

4.2. 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.

5. Access and Use

• 5.1. On the Effective Date or as separately agreed Frosmo shall provide the Customer with:
  • a. The Javascript tags needed to integrate the Customer Applications with the Platform; and

 

• • b. security credentials to enable the Customer to obtain access to the Platform.

5.2. 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, including without limitation any affiliates or group companies of the Customer.

5.3. 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’s prior 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.

5.4. Frosmo shall provide the Support Services to the Customer in accordance with the Support and Maintenance Services Description.

5.5. The Customer agrees to:

• • a. 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;

 

• • b. use the Services only in accordance with applicable laws, and

 

• • c. be solely responsible for all of its own actions and/or omissions in relation to the use of the Services; and

 

• • d. permit Frosmo to use the Customer as a reference in the sales and marketing of Frosmo’s Services.

5.6. Except as expressly permitted by 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.

6. Professional Services

• 6.1. Professional Services means the one-time services or ongoing monthly retainer hours specified in the Agreement or subsequent Order Forms and Amendments, such as but not limited to, onboarding, training, development, maintenance, extended support, project management and consulting in connection with the Customer’s subscription of the Frosmo Platform.

6.2. If the Parties agree on monthly retainer hours, Frosmo shall deliver such hours on a monthly basis. Up to +/-10% of the monthly retainer hours can be carried over to the next month during a calendar quarter. Any unused retainer hours will be zeroed monthly to the extent the unused hours exceed 10% of the agreed monthly retainer hours and, at the latest, at the end of each calendar quarter (end of Mar, Jun, Sep & Dec). Frosmo will not compensate or credit unused hours. If the Customer has ordered more work than the agreed monthly retainer hours, Frosmo shall charge for that work in accordance with its then current price list (unless otherwise agreed between the Parties).

6.3. In addition to web development work, the monthly retainer hours can be used for work related to maintenance, project management, customer service, customer reporting, and testing.

6.4. All services are performed remotely, unless the parties agree in writing to provide a predefined amount of hours on-site to carry out a workshop or similar. For services performed on-site, you will reimburse us our reasonable costs for all expenses incurred in connection with such services.

7. Fees and Invoicing

• 7.1. Fees (the

“Fees”

• ) of the Services are stated in the Agreement and any subsequent Order Forms and Amendments:
  • a. Fees are based on Services purchased, not on actual usage;

 

• • b. Fees paid are non-refundable; and

 

• • c. The Fees are based on calendar months. The Fees shall be prorated using thirty (30) days, if the first and/or the last month of the Services are not full calendar months.

7.2. All Fees 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.

7.3. Frosmo has the right to adjust its Fees by notifying the Customer three (3) months prior to such change. Any increases to annual subscriptions shall take effect earliest on the annual renewal date.

7.4. Neither Party may set off the claim or receivables of the other Party.

8. Terms of Payment

• 8.1. Unless otherwise stated in the Agreement:
  • a. All prices are quoted and payable in EUR;

 

• • b. Software subscription is invoiced in the beginning of each subscription period;

 

• • c. The term of payment is 30 days net from the date of a valid invoice; and

 

• • d. Interest on overdue payments shall accrue based on the Finnish Interest Act.

8.2. If the Customer’s invoice(s) are fourteen (14) 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 seven (7) 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.

8.3. If the Customer’s invoice is five (5) days overdue, the Customer shall receive a written reminder. If the Customer has not paid the invoice and provided related proof of payment by the final due date stated on the reminder, the invoice(s) shall enter into debt collection by a debt collection agency. The Customer agrees to pay any such reasonable debt collection expenses directly to the debt collection agency on top of the original invoice sum together with overdue interest stated above in section 7.1.c. However, the invoice shall not enter into debt collection if the Customer has disputed the invoice before the final due date stated on the reminder.

9. Warranties

• 9.1. Each Party represents and warrants that it will not transmit to the other Party any Malicious Code.

9.2. Frosmo warrants that:

• • a. it will provide the Services in a manner consistent with general industry standards reasonably applicable to the provision thereof;

 

• • b. it shall perform the Services materially in accordance with the Agreement and these Terms;

 

• • c. the functionality of the Services shall not be materially decreased during the term of the Agreement;

 

• • d. it owns or otherwise has sufficient rights in the Services in order to grant the Customer the Access Rights to use the Services; and

 

• • e. the Services do not infringe any third party copyrights enforceable in the EU.

9.3. 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.

10. Customer Data

• 10.1. Frosmo has the right to use the Customer Data only for the purposes of the 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.

10.2. 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. Data Processing Agreement is included as Annex 2 to the Agreement, and covers the terms related to the processing of Personal Data by Frosmo.

11. Intellectual Property Rights

• 11.1. Frosmo (or its licensors) are the exclusive holders of all Intellectual Property Rights in and to the Platform, APIs of the Platform, Javascript tags, libraries, recipes and repositories of the Platform, results of the Professional Services and all elements and parts thereof.

11.2. All rights, title and interest, including any and all Intellectual Property Rights, in and related to the Services, the Javascript tags and thereto connected software, hardware, technology and other items used to provide the Services, any written material thereof and all concepts and ideas related thereto and any adaptations, modifications and derivative works thereof, shall at all times remain the sole and exclusive property of Frosmo.

11.3. 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.

11.4. The Customer shall not be entitled to make any changes to the Frosmo Platform (including the Javascripts, software and technology) or any parts thereof.

11.5. 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.

11.6. 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.

12. Indemnity

12.1. 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 copyrights enforceable in the EU. Frosmo has the right to take full control of such proceedings.

13. Limitation of Liability

• 13.1. Neither Party shall be liable 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) for any:
  • a. Loss of profits;

 

• • b. Loss of revenue;

 

• • c. Loss of or damage to business or reputation;

 

• • d. Loss of contracts or customers or data;

 

• • e. Wasted management or other staff time;

 

• • f. Losses or liabilities under or in relation to a contract concluded with a third party; or

 

• • g. Indirect, punitive, special or consequential losses or damages.

13.2. Notwithstanding anything contrary in the Agreement and these Terms, under no circumstances shall the total aggregate liability of the Parties under or in relation to the Agreements 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.

14. Term and Termination

• 14.1. The term and notice period is stated in the Agreement or any subsequent Order Form or Amendment. The notice can only be given in writing. For the sake of clarity, removal of the Javascript tags of the Platform by the Customer does not constitute a termination of the Agreement nor does it release the Customer from the obligation to pay the Platform Fee.

14.2. 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:

• • a. If the other Party commits a material breach of its obligations under the 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

 

• • b. 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.

14.3. Upon termination of the Agreement for any cause:

• • a. The Customer shall immediately discontinue any and all use of the Platform (including thereto connected software and APIs) and the Services; and

 

• • b. Both Parties shall immediately return to the other Party all materials of the other Party.

14.4. 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.

15. Confidentiality

• 15.1. 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;
  • a. Is already known to the Receiving Party or its representatives or to others not bound by a duty of confidentiality prior to disclosure;

 

• • b. Becomes publicly available through no fault of the Receiving Party or its representatives;

 

• • c. Is independently developed by the Receiving Party without the use of or reference to the Information of the Disclosing Party; or

 

• • d. 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.

15.2. 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.

15.3. This Section shall be binding upon the Parties and survive the expiry and termination of the Agreement.

16. Force Majeure

• 16.1. 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.

16.2. 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.

16.3. 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.

17. Governing Law and Dispute Resolution

• 17.1. The Agreement, subsequent Order Forms and Amendments together with all annexes, including these Terms, shall be governed by and construed in accordance with the laws of Finland without regard to its choice of law provisions.

17.2. 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.

17.3. 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.

17.4. 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.

18. Final Provisions

• 18.1. Any notice under the Agreement given by each Party to the other Party shall be in writing and be effective upon delivery as follows:
  • a. 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

 

• • b. 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

 

• • c. Any such notice, in either case, must specifically reference that it is a notice given under the Agreement.

18.2. 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 the 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.

18.3. The Customer undertakes not to actively solicit or attempt to solicit employment of any employees or officers of Frosmo, and to not enter into an employment contract or any other arrangements for the purpose of obtaining the work contribution of the employees or officers of Frosmo until six (6) months has passed from (i) the date of termination or expiry of the Agreement (including all Order Forms and Addendums), or (ii) termination of the employment of the employees or officers in question, whichever occurs earlier. In the event of a breach of this section, the Customer shall pay to Frosmo as liquidated damages an amount corresponding to the gross salary of the relevant employee or officer during six (6) months preceding the termination of his/her employment or, if the employment is not terminated, preceding the claim for liquidated damages. Any payment of liquidated damages shall be without prejudice to any other rights or remedies available.

18.4. The Agreement contains the entire agreement between the Parties and supersedes all oral statements and prior writings relating to the subject matter hereof.

18.5. The Agreement including these Terms of Service 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.

18.6. 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.

18.7. 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. Subject to written notice to the Customer, 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.

18.8. The descriptive headings of the Agreement are inserted for convenience only and do not constitute a part of the Agreement.

18.9. Both Parties shall bear their own fees, expenses and costs incurred in connection with the preparation, execution and performance of the Agreement and the contemplated cooperation of the Parties.

18.10. 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.