End user terms – Reseller sales
Effective starting: 10 Aug 2018
2. SCOPE OF SERVICES
3. INTELLECTUAL PROPERTY RIGHTS
5. PERSONAL DATA AND CUSTOMER DATA
6. SUSPENSION OF SERVICE
8. LIMITATION OF LIABILITY
9. TERM AND TERMINATION
10. GOVERNING LAW AND DISPUTES
11. OTHER TERMS
1.1 These end user terms (“EULA”) set out the terms under which the Customer may use the Services.
2. SCOPE OF SERVICES
2.1 The Services may contain Terminal Services, Web Services and Support Services as agreed between the Parties in the Service Supply Agreement.
2.2 Reports as regards the Services are provided to the Customer via the Service Provider’s Online Reporting Service. The Customer agrees to keep the Online Reporting Service’s user account and credentials secure from third parties. The Customer is responsible for all acts or omissions relating to Customer’s 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 is leased and is property of the Service Provider. The Customer shall after the expiry or termination of this EULA at the Service Provider’s sole discretion recycle the hardware at the Customer’s expense pursuant to the instructions provided by the Company or the Service Provider or return the hardware to the Company at the Customer’s expense.
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 Service Provider 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 shall operate all terminals with due care and ensure that the terminals are only operated indoors. The Customer shall keep the terminals clean.
2.3.5 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 Service Provider. 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 Service Provider’s installation instructions.
2.4.5 Upon the termination of this EULA, the Customer shall promptly remove all Web Smiley scripts from its web sites.
3. INTELLECTUAL PROPERTY RIGHTS
3.1 Intellectual Property Rights in and to the Services shall remain the sole property of the Service Provider or its licensors.
3.2 The Service Provider grants to the Customer for the term of this EULA, a non-exclusive, non-transferable, non-sublicensable limited license to use the Services for the Customer’s internal purposes only.
3.3 The Customer shall not have the right to register, or to have registered, any trademark, trade names or other commercial designations of the Service Provider (or which are confusingly similar to those of the Service Provider).
3.4 The Customer shall not modify or attempt to modify, reproduce, translate, reverse engineer, decompile, disassemble or otherwise attempt to find out the source code of the Services, further develop the Services or write or develop any derivative software, software program or products based upon the Services or parts thereof.
3.5 The Customer shall notify the Service Provider immediately if the Customer becomes aware of any unauthorized use of any of the Services or any of the Intellectual Property Rights therein or relating thereto and will assist the Service Provider in taking all reasonable steps to defend the rights of the Service Provider therein.
4.1 The Service Provider 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 Service Provider of such claim immediately upon receipt of notice thereof;
4.1.2 provides the Service Provider, free of charge, with all available information, permissions and assistance;
4.1.3 grants the Service Provider 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 Service Provider.
4.2 If the Customer has acted in accordance with Sections 4.1.1 to 4.1.4, the Service Provider 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 Service Provider justifiably deems that the Services infringe or may infringe upon any third party rights, the Service Provider 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 Service Provider on commercially reasonable terms and/or without the significant loss of time, the Customer agrees to cease using the Services, and the Service Provider 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 Service Provider 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 Service Provider or which are contrary to instructions given by the Service Provider; or (e) could have been avoided by using the latest version of the Services made available by the Service Provider to the Customer.
4.6 This Section 4 sets out the entire liability of the Service Provider and the Customer’s sole remedy in case of any infringement of any Intellectual Property Rights.
5. PERSONAL DATA AND CUSTOMER DATA
5.2 To the extent the Customer submits, processes or stores any personal data in to the Services, the Service Provider (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 Customer represents and warrants that it is authorized to instruct the Service Provider 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 Service Provider for processing. The following data protection clauses reflect Customer’s complete written instructions to Service Provider in its role as data controller.
5.3 Service Provider shall implement appropriate technical and organizational measures to secure the Customer’s personal data from unauthorized access and accidental or unlawful processing. In the event of a personal data breach, the Service Provider shall notify the Customer in accordance with applicable data protection law without undue delay after becoming aware of such breach and take reasonable steps to mitigate any damage resulting from such breach.
5.4 The Service Provider is entitled to use subcontractors for the purposes of providing the Services. The Service Provider shall use its commercially reasonable efforts to ensure that its subcontractors are subject to equivalent requirements regarding confidentiality and data protection, as set out in in this EULA. Service Provider shall inform Customer upon request about the subcontractors used and changes in subcontractors. The Customer hereby consents to the Service Provider’s use of subcontractors as described in this section.
5.5 The Service Provider 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. The Customer shall be responsible for ensuring that adequate safeguards are in place when personal data is transferred outside of EU/EEA.
5.6 The Service Provider shall, at the Customer’s written request and the Customer’s sole cost and expense, assist the Customer by providing such information, as the Customer may reasonably require and which the Customer does not have, in complying with the requests of the data subjects or competent authority. Service Provider shall make information available to the Customer that is reasonably necessary to demonstrate compliance with the applicable data protection laws, including audit report not older than 12 months if requested by the Customer.
5.7 After the termination of this EULA for any reason, the Service Provider shall retain the Customer’s data for thirty (30) days and make it available to the Customer via the Service Provider’s [Online Reporting Service]. After the thirty (30) days’ period, the Service Provider shall have the right to destroy the Customer’s data without any liability towards the Customer.
5.8 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 Service Provider 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 Service Provider 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 Service Provider to do so.
6.2 The Service Provider 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 Service Provider reasonably suspects that the Customer burdens or uses the Services contrary to this EULA, applicable laws or administrative orders or for a purpose prohibited by this EULA, applicable laws or administrative orders or in a manner that jeopardizes the provision of the Services to other users.
7.1. 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 this EULA. 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.
7.2 The obligations of confidentiality in Section 7.1 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.
7.3 Each Party shall promptly upon termination of this EULA, or when the Party no longer needs the Confidential Information in question for the purpose of performing its obligations or exercising its rights under this EULA, 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.
7.4 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 this EULA.
7.5 The rights and obligations related to the Confidential Information shall survive the termination of this EULA for any reason for a period of three (3) years from such termination.
8. LIMITATION OF LIABILITY
8.1 The total aggregate liability of a Party towards the other Party under this EULA 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.
8.2 The Service Provider 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.
8.3 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 7 (Confidentiality).
8.4 The Customer is solely responsible for making appropriate backups of its data, and the Service Provider 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.
9. TERM AND TERMINATION
9.1 This EULA shall enter into force at the effective date of the Service Supply Agreement and shall remain in force for the initial Term set out in the Service Supply Agreement after which it shall be automatically renewed for a period of one (1) year at a time unless terminated by a Party at least thirty (30) days prior to the end of the then-current term.
9.2 The Service Provider shall have the right to terminate this EULA and the Customer’s right to use the Services with immediate effect upon written notice to the Customer if the Customer is in material breach of the terms and conditions of this EULA and fails to remedy such breach within thirty (30) days from the date of receipt of a written notice by the Service Provider, such written notice detailing the breach and the intention to terminate.
10. GOVERNING LAW AND DISPUTES
10.1 This EULA 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 EULA.
10.2 All disputes arising out of or relating to this EULA 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 (60) days from the date when a Party has requested in writing to commence with the aforementioned negotiations, any dispute, controversy or claim arising out of or relating to this EULA, or the breach, termination or validity thereof, shall be finally settled by 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. OTHER TERMS
11.1 The Service Provider shall be free to use subcontractors in the performance of its obligations and exercise of its rights under this EULA. The Service Provider shall be liable for the acts and omissions of its subcontractors under this EULA as for its own.
11.2 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.
11.3 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 this EULA, 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.
11.4 Neither Party shall have the right to assign or transfer all or any of its rights, benefits and obligations under this EULA without the prior written consent of the other Party, which consent shall not be unreasonably withheld or delayed. The Service Provider shall, however, have the right to assign this EULA in connection with a sale or transfer of its business or a relevant part thereof.
11.5 Any terms and conditions that by their nature or otherwise reasonably should survive a cancellation or termination of this EULA shall also be deemed to survive.
12.1 “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;
12.2 “Confidential Information” shall have the meaning set out in Section 7.1;
12.3 “Customer” means the company entering into the Service Supply Agreement with the Company;
12.4 ”Fee(s)” means the compensation paid by the Customer to the Company for the Services;
12.5 “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;
12.6 “Parties” and “Party” means the Service Provider and the Customer jointly and separately;
12.7 “Service(s)” means the Terminal Services, the Web Services and the Support Services, as well as any other services specified in the Service Supply Agreement;
12.8 “Service Provider” 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;
12.9 “Service Supply Agreement” means the agreement entered into by the Company and the Customer, to which the General Terms are attached to;
12.10 “Support Services” shall mean the support services provided by the Service Provider or its third party partner to the Customer, as separately agreed between the Parties;
12.11 “Terminal Service(s)” means the customer satisfaction tracking and analysis services based on hardware terminals provided by the Service Provider to the Customer, as set out in the Service Supply Agreement; and
12.12 “Web Service(s)” means the customer satisfaction tracking and analysis services based on web site scripts provided by the Service Provider to the Customer, as set out in the Service Supply Agreement.