TERMS OF SERVICE Version: May 14, 2019

Visit regularly the webpage Frostberry.com for any updates to these terms and conditions.

Applicability

These terms of use are applied for sale, use and provision of any software, content or information Frostberry Oy (“Frostberry”) offers through the internet or as a mobile application (“service”) to a customer who concludes an agreement with Frostberry for the use of the service. In these terms, “customer” can refer either to the company or legal entity concluding the agreement, or to any of its users who have a right to use the service based on the agreement concluded by the company or legal entity. The service is targeted to businesses or other legal entities or organizations, not to consumers. By concluding an agreement with Frostberry and using the service the customer accepts these terms and agrees to comply with them during the term of the agreement. Customer is also responsible that the users in its organization use the service in accordance with these terms. A binding agreement for the use of the services can be made by (1) signing in writing or electronically an agreement regarding the use of the service, (2) accepting an offer Frostberry has provided to the customer, or (3) when registering as a user of the service at Frostberry’s website.

Service provider and contact details

Frostberry Oy
Business ID: 2951899-7 VAT ID: FI29518997 Alppikylänkatu 4 C 52 00770 Helsinki FINLAND www.frostberry.com

Description of the service

The service is an online-based software, service or content used with a browser. For detailed applicable services descriptions, contact Frostberry or visit Frostberry’s website.

Changes to service and these terms

Frostberry develops the service continuously, so

Frostberry retains the right to make changes to these terms and to the service. Frostberry notifies customers of significant changes to the terms or to service by informing users by email, by publishing the terms on its website or via the service or in some other manner, as Frostberry considers suitable. Changes become effective on the notified date, unless otherwise provided. If the change concerns pricing or significant changes in the features of the service, Frostberry aims to notify at least one month prior to the change. Unless a specific effective date has been given for the change, the change becomes effective when it has been made. By continuing to use the service after the change the customer accepts it. If the customer does not accept the changes, it must terminate the agreement by written notice prior to the changes becoming effective and stop the use of the service.

Use of service and limited license

Frostberry grants the customer, subject to these terms, a limited, non-exclusive, personal and non-transferable license to use the service for the customer’s internal business purposes. The customer (including its users) agrees to use the service according to these terms and applicable laws. If Frostberry has reason to believe that the customer or a user has not followed these terms or the applicable laws, Frostberry may delete or limit the user rights or conduct other means it considers necessary.

A customer and a user cannot (a) use or try to use another user’s account without his/her and Frostberry’s permission; (b) copy, modify or create derivative works of the service, it’s content or technology relating to it; (c) reverse engineer, decompile, disassemble or otherwise try to derive the source code of the service or its technology; (d) remove any intellectual property right notices from the service; (e) create a user account by using another person’s personal data or otherwise incorrect or fake data; (f) transfer his/her account to another user without Frostberry’s prior written consent; (g) sell, resell or otherwise provide the license to use the service to a third party without Frostberry’s prior written consent.

Registration and user accounts

A customer receives a right to use the service throughout the term when concluding an agreement for the use of the service and registering a user account. The use of the service requires that a customer (e.g. a company or other legal entity) concludes an agreement with Frostberry relating to the use of the service and the account is registered and user names created for the service. The number of the users and the features included in the service may depend on the agreement and subscription level. During the registration Frostberry must be provided with required details of the user(s) and the customer organization. The customer is responsible for giving accurate and truthful information and updating the information when necessary for creating and maintaining a user account in the service. Login and password details are always personal.

The customer must make sure that its users maintain the login and password details in a secure manner. Login and password should never be provided to anyone else and a person should never use another person’s or another customer’s login and password. If the customer or a user believes or knows that the confidentiality of his/her login and password has been compromised, he/she should inform about it to Frostberry without delay. Frostberry has the right to delete or limit user access, if Frostberry justifiably believes that the confidentiality of the user account has been compromised or the user does not follow these terms or otherwise acts in bad faith.

Data security, personal data and privacy

Frostberry aims to ensure that the data security of the service is on an industry standard level.

Protecting the privacy of customers, users and other personal data processed in the service is important to Frostberry. As a data controller, Frostberry collects and uses personal data in accordance with its privacy principles. Frostberry’s privacy policies are available at: www.frostberry.com, visit the pages regularly for any updates.

If Frostberry is considered in its performance of contractual obligations a data processor in relation to its customer, the data controller (as defined in the EU General Data Protection Regulation), then Frostberry Data Processing Terms are also applied and considered an integral part of an agreement between Frostberry and the customer.

 

Content entered or created by the customer

If a customer or any of its users enter or create content in the service while using it, the intellectual property rights relating to such content is owned by the customer or applicable user. However, Frostberry has a right to use the content for providing the service to the customer, for developing the service or for any other reasonable business purpose of Frostberry. Frostberry has also a right to use and publish aggregate, statistical and anonymous data from content entered by a customer or otherwise relating to customer’s use of the service, provided that a person cannot be identified from the material created and published by Frostberry.

The customer is responsible that it (or any of its users) has a right to enter the content into the service and that the content it has entered does not violate any laws or third party rights and is otherwise lawful. For a justified reason, Frostberry has a right to delete, modify or restrict the content entered by the user into the service.

Intellectual property rights

The service (including any customer-specific modifications, updates and bug fixes) and content relating to it are protected by copyright and other intellectual property right laws and are and shall remain the sole and exclusive property of Frostberry or its licensors, as the case may be. Other intellectual property rights, such as trademarks, patents, designs or trade secrets, may as well relate to the service, which also belong to Frostberry or its licensors. No intellectual property rights are transferred from Frostberry to customer, the customer is only granted a limited license to use the intellectual property relating to the service in its internal operations in accordance with these terms.

Using the service

Use of the service requires a browser and an internet connection as well as a suitable device, such as a computer. Even if the service has been tested on different devices, browsers and operating environments, Frostberry cannot provide any warranties that the service will function error-free on all possible devices, browsers and operating environments.

The customer is responsible at its own cost to acquire and maintain necessary devices, software and internet connections required for the use of the service. Frostberry does not guarantee that the application can be used specifically with the customer’s device, software and internet connection. Frostberry is not responsible of the possible outages or disconnections of the service for instance due to updates, technical issues or problems or other similar reasons. Frostberry is not responsible for any damages caused by or relating to use or inability to use the service.

Warranties; Information in the service; Limitation of Frostberry’s liability

Even if Frostberry has used great care in developing and maintaining the service, Frostberry cannot provide any warranties that the service would operate error-free. The service is provided to the customer on “AS IS” and “AS AVAILABLE” basis. Furthermore, Frostberry does not represent or warrant that the service is fit for customer’s specific purposes. The customer uses the service at its own risk and it should evaluate prior to use of the service whether the service is fit for the customer’s intended purpose or not.

Frostberry’s aggregate, cumulative maximum liability arising out of or relating to breaches of contract, tort, warranty or otherwise shall in no event exceed the total sum paid by customer for use of the service within the three (3) month period prior to making first claim for damages or monetary compensation.

Any damages or monetary compensation must be claimed by the customer no later than three (3) months after the customer became aware of the cause for the claim, with the risk of otherwise losing its right to claim any damages or monetary compensation based on breaches of agreement.

Frostberry is not liable to the customer for any indirect, special, consequential or punitive damages or administrative fines (including loss of revenue or profit, business losses, business interruptions and loss of data) caused by violation of an agreement or these terms, or by use of or inability to use the service. Furthermore, Frostberry is not responsible for any claims made by or damages suffered by third parties.

These limitations of Frostberry’s liability are applied to the fullest extent permitted by mandatory provisions of applicable laws.

Maintenance

Frostberry performs continuously normal development and maintenance work for the service. Due to this, Frostberry is entitled to temporarily restrict or limit the use of or access to the service. Frostberry aims to schedule the maintenance updates in a manner that causes as little harm to the customer as reasonably possible. Frostberry is not responsible for any damages or harm caused by interruptions in the use of the service. Frostberry notifies the customer of planned changes or interruptions in the service in a manner as it considers appropriate. All maintenance and support work are by default performed remotely from Frostberry’s location on weekdays during normal business hours. Frostberry makes backup copies and deletes data contained in the service in accordance with its normal IT and data retention policies.

Prices and payments

Prices for the service in force at the time of concluding the agreement are described in the agreement between Frostberry and the customer. If the parties have not agreed on prices, Frostberry’s price list valid at the time of concluding the agreement shall apply. The payable prices and fees for the service may depend on the amount of users and features or functions included in the service.

Frostberry is entitled to update prices by providing at least two (2) month’s advance notice to the customer. If the customer does not accept the price increase, it may terminate the agreement in writing by using one (1) month’s notice period.

Unless otherwise notified, value added taxes are not included in the prices and fees, which shall be added and payable by the customer in accordance with applicable laws.

All payments for the services shall be made in euros to an account specified specified by Frostberry, unless the parties agree otherwise.

The service fees are invoiced on a monthly, quarterly or annual level. The payment term is fourteen (14) days from the date of invoice. The interest rate for delayed payments is 11 % per annum.

 

Term and termination

Unless otherwise agreed, an agreement regarding the use of the service is in force and valid until terminated by a party by providing at least one (1) month’s written notice to the other party.

Frostberry may also terminate the agreement with immediate effect, if customer does not pay the applicable service fees, or if the customer becomes insolvent or goes bankrupt, or if the customer uses the service in violation with these provisions, the applicable laws or good business practice. A party is also entitled to terminate an agreement in whole or in part in the event that the other party fails to comply with any material term of an agreement or these terms, provided that such failure is not cured, to the extent the failure is curable, within fourteen (14) days after the notice of the breach was provided.

When the agreement relating to the use of the service is terminated or expires, terminates or expires also the right to use the service. The terms and conditions of an agreement which by their nature and purpose are intended to survive termination, shall survive any termination or expiration of an agreement.

Applicable law and dispute resolution

The agreement, these terms and the use of the service are governed by the laws of Finland, without regard to its conflict of laws rules and principles.

Any dispute arising between the parties will be settled by amicable settlement. Failing amicable settlement within thirty (30) days of the dispute being referred to the settlement, the dispute will be finally settled by arbitration in accordance with the Arbitration Rules of the Finnish Central Chamber of Commerce by one (1) sole arbitrator appointed in accordance with those Rules. The arbitration shall be held in Helsinki, Finland and the arbitration proceedings shall be conducted in English. The Parties agree to keep confidential all information, documents and material relating to the arbitral proceedings as well as the arbitration award. Frostberry shall, however, have the right to

bring up any claim, related to an Agreement and based on a due receivable from the customer, in the district court where the customer is domiciled or in any other district court in customer’s jurisdiction.

Other terms

Frostberry is entitled to employ subcontractors to fulfill its obligations under an agreement and it is liable to customer for all acts of its subcontractors as for its own acts.

Frostberry shall not be deemed to be in breach of an agreement, or otherwise be liable to customer, for any failure to perform, or any delay in performance, caused by a reason beyond Frostberry’s control (force majeure events).

Unless otherwise agreed, a party does not have the right to transfer an agreement or rights and obligations related to it, entirely or partly, to a third party without the other party’s prior written acceptance. However, a party may assign an agreement or rights and obligations related to it without the other party’s acceptance in connection with any merger, sale of business or similar transaction.

These terms and the additional agreed upon terms in an agreement contain the entire agreement between the parties and supersede all prior communication, discussions and agreements relating to the subject matter.

Third party services

Third party services or applications may be included or integrated in Frostberry’s service or resold by Frostberry. These are provided to customer under the applicable third party terms of use and fees. Frostberry is not responsible and does not give any warranties regarding third party services or applications or their use, function or defects in them. If the third party services provider makes changes to its pricing, Frostberry is entitled to update its resale prices accordingly. Upon a party’s termination of an agreement Frostberry is entitled to invoice for such reasonable third party costs that could not be cancelled or prevented prior to termination (e.g. third party services have different termination notice period compared to Frostberry’s service).