Terms of Service
Last amended 01.08.2022
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These Terms of Service (Terms of Service) form an integral part of the Agreement which governs the use of the Service(s) (as later defined) provided by the Sellforte entity specified in the Order Form or Statement of Work (or in case no entity is specified, Sellforte Solutions Oy) (Sellforte) to the customer and such of its Affiliates that are defined in the Order Form or Statement of Work (Customer). By signing an Order Form or Statement of Work or by using the Service(s), the Customer acknowledges and agrees that the Customer is subject to these Terms of Service and that the Customer accepts these Terms of Service.
1 DEFINITIONS
The following capitalised terms shall have the meaning set out below.
Customer Content Source
shall mean a predefined data source of the Customer to which the Services apply, such as Customer's own data files containing Customer Content applied in the Services, Customer's online advertising account(s), social media platforms or other accounts or websites provided by e.g. Facebook, Google, or Customer's other data warehouse(s), or Customer's information which are used in connection with the Services.
Affiliate
shall mean an entity which is a subsidiary or parent of, or under common control with, the Party. For these purposes, an entity shall be treated as being controlled by another if that other entity has fifty (50) per cent or more of the voting shares in such entity, or that other entity is able to direct the Party's affairs or is able to appoint a majority of the members of the board of directors or an equivalent body.
Agreement
shall mean these Terms of Service together with any Order Form(s) and/or Statement of Work(s) and any attachments thereto, which shall govern the provision of the Service(s) by Sellforte and the use of the Service(s) by the Customer.
Service(s)
shall mean collectively the Online Service and/or such other services as defined in and ordered through the applicable Statement of Work or Order Form.
Sellforte
shall mean Sellforte Solutions Oy (Finnish Business ID: 2832424-2) and its Affiliates.
Customer
shall mean the entity having subscribed to the Services.
Customer Content
shall mean any content and/or materials and other information (including Personal Data) provided by Customer to Sellforte for the purpose of the Service(s), including without limitation any third-party content licensed or acquired by the Customer.
Data Controller
shall have the meaning given to it in the Data Protection Legislation.
Data Processor
shall have the meaning given to it in the Data Protection Legislation.
Data Protection Legislation
shall mean all mandatory laws and regulations applicable to processing of Personal Data from time to time, including the EU General Data Protection Regulation 2016/679 (GDPR) and all related national laws, binding regulations and other binding statutes implementing the General Data Protection Regulation.
Effective Date
shall mean the date specified in the applicable Order Form and/or Statement of Work- document.
Free Version(s)
shall mean any versions of the Online Service available from time to time to Sellforte's customers for trial use free of charge.
Intellectual Property Rights
shall mean copyrights and related rights (including database and catalogue rights and photography rights), patents, utility models, design rights, trademarks, tradenames, trade secrets, know-how and any other form of registered or unregistered intellectual property rights or statutory protection of any kind and applications for any of the foregoing.
Order Form
shall mean the order form through which the Customer orders the Online Service and possible ancillary services thereto, and which, by reference, incorporates these Terms of Service (including any applicable attachments thereto).
Party
shall mean Sellforte or the Customer (jointly the Parties).
Personal Data
shall have the meaning given to it in the Data Protection Legislation.
Online Service
shall mean Sellforte's software as a service (SaaS) described in the applicable Order Form or Statement of Work, including upgrades and updates thereto, made available to the Customer pursuant to the Agreement.
Service Fee(s)
shall mean the fees payable by Customer to Sellforte for the use of and access to the Services.
Statement of Work (SOW)
shall mean the statement of work -document through which the Customer orders such services specified in it (including any possible ancillary services), and which, by reference, incorporates these Terms of Service (including any applicable attachments thereto).
User(s)
shall mean any authorised individual that has been granted the right to use and access the Services on behalf of Customer or Customer's Affiliate(s) hereunder.
2 SERVICES
2.1 Sellforte provides a software service for analysing the effectiveness of commercial activities, as well as other services defined in the applicable Order Form and/or Statement of Work.
2.2 Delivery of the Services may be agreed upon by both Parties signing an Order Form and/or Statement of Work for the delivery the Services. The Customer must send the signed Order Form or Statement of Work to Sellforte by mail or by email, or by electronic signature process, for acceptance.
2.3 In addition to any provisions contained in the Order Form and/or the Statement of Work, these Terms of Service shall apply. In case of a conflict between the Order Form and/or the Statement of Work, and these Terms of Service, the terms of the Order Form and/or Statement of Work shall prevail.
3 GENERAL OBLIGATIONS OF CUSTOMER
3.1 The Customer is responsible for complying with all laws, rules, and regulations applicable to Customer, including all laws, rules, and regulations related to the use of the Services. The Customer is liable for filing the notices and reports to any authorities required under applicable law. Such responsibilities and liabilities are not transferred to Sellforte under the Agreement or under the Services provided by Sellforte. The Customer undertakes not to use the Services for any unlawful purpose whatsoever.
3.2 The Customer shall ensure that the Services meet Customer’s expectations and requirements as well as intended purposes of use. The Customer remains responsible for how the Customer uses the Services and any actions taken by the Customer based on the results and recommendations produced by the Services and the outcomes of those actions.
3.3 The Customer is responsible for acquiring and maintaining any and all network connections, hardware and software required for using the Online Service agreed hereunder and shall be liable for maintaining any firewall and any data security and virus protection systems (including any costs arising thereof).
3.4 The Customer undertakes to fully comply with Sellforte's reasonable directions and requests provided from time to time and related to the Services or to the Customer’s use thereof.
3.5 The Customer shall ensure that all information necessary for the provision of the Services, where applicable, is correct and undertakes to update such information as soon as possible in case such information has changed. Such information required for the provision of the Services shall be provided by Customer to Sellforte in a timely manner.
3.6 The individual acting on behalf of and representing the Customer and accepting the Agreement by executing the applicable Order Form and/or Statement of Work, represents and warrants that such individual has the full legal authority to enter into the Agreement, under all applicable laws, on behalf of the Customer in its capacity as an employee or representative of Customer.
3.7 The Customer shall specifically ensure that all details provided in the Order Form and/or Statement of Work, regarding the Customer’s contact information and billing information, if applicable, are correct and up to date. Such information (e.g., confirmation email as well as other notifications) may be sent via email. They are deemed to have been received when they can be retrieved in the email inbox which was specified by the Customer during the registration or in the applicable Order Form and/or Statement of Work.
3.8 If Customer grants any of its Affiliates, subcontractor, supplier, end-customer, or other third party any access to the Online Service and/or to other Services (any of the foregoing is solely subject to Sellforte’s prior written consent), any such Customer’s Affiliate, subcontractor, supplier, end-customer, and third party shall be considered equivalent to the Customer for the purposes of this Agreement, and the Customer shall be fully responsible and liable for all acts and omissions of and any damage caused in connection with the use of the Online Service and/or other Services of such Customer’s Affiliate, subcontractor, supplier, end-customer, and third party as well for ensuring their compliance with the Agreement.
4 REGISTRATION TO THE ONLINE SERVICE
4.1 Unless otherwise agreed, the Customer shall register to the Online Service before commencing the use of the Online Service. In the registration process, the Customer shall register Customer Content Sources with the Online Service, and authorize Sellforte to access and use the Customer Content Sources, and all the information therein. The Customer represents and warrants that it has full rights and authority to give Sellforte the rights above and to register the Customer Content Sources with the Online Service. Unless otherwise agreed, the Customer may add and remove the Customer Content Sources in the Online Service at any time in its sole discretion. Sellforte shall confirm Customer's registration in due course after having received the registration.
5 RIGHT TO USE THE ONLINE SERVICE
5.1 Subject to due payment of the applicable Service Fees as well as compliance with the terms of the Agreement, Sellforte grants to Customer, and such of the Customer’s Affiliates that are specified in the applicable Order Form and/or Statement of Work, as well as to their Users a limited, non-exclusive, non-transferable, and non-sublicensable right to use the Online Service during the term of the Agreement for the purpose of analysing effectiveness of Customer’s commercial activities, or to such other purpose separately agreed in any applicable Order Form or Statement of Work.
6 RESTRICTIONS OF USE OF THE ONLINE SERVICE
6.1 The Customer may use the Online Service only and strictly in accordance with the terms of the Agreement.
6.2 Unless otherwise permitted in the applicable Order Form and/or Statement of Work, the Customer may not:
(i) make changes to the Online Service;
(ii) circumvent or attempt to circumvent any usage control or anti-copy features of the Online Service;
(iii) probe, scan or test the vulnerability of the Online Service;
(iv) use the Online Service and the content available through the Online Service in any manner that could damage, disable, overburden or impair the Online Service;
(v) use any data mining, robots, scraping, or similar data gathering or extraction methods;
(vi) use, copy, sell, resell, rent, transfer, license or otherwise provide anybody with the Online Service and/or the content of the Online Service available through the Online Service, except as may be provided herein;
(vii) access all or any part of the Online Service in order to build, plan or develop a product or service or feature which competes with the Online Service, Sellforte’s software or any other Sellforte’s service or offering;(viii) interfere with other users’ use of the Online Service;
(ix) reverse engineer or decompile the Online Service or access the source code thereof, except as permitted by mandatory applicable law;
(x) use the Online Service for transmitting any unauthorised advertising, promotional materials, junk mail, spam, chain letters, contests, pyramid schemes, or any other form of solicitation or mass messaging;
(xi) use the Online Service in violation of applicable law;
(xii) use the Online Service in ways that violate Intellectual Property Rights or privacy of Sellforte, third parties or users;
(xiii) use the Online Service to transmit any material that contains adware, malware, spyware, software viruses, worms or any other computer code designed to interrupt, destroy, or limit the functionality of computer software or equipment; and/or
(xiv) use the Online Service on behalf of a third party (e.g., its end customer), unless otherwise agreed.
6.3 Sellforte shall have the right to immediately deny the Customer's or a User’s access to the Online Service without any prior notice to the Customer, if Sellforte suspects that the Customer breaches the Agreement or burdens or uses the Online Service in a manner which may jeopardise the availability of the Online Service to other users, or under similar circumstances in which denying the Customer’s or User’s access is justified. Sellforte shall without undue delay inform the Customer of the reasons for such denial
7 AUTHORISED USERS OF CUSTOMER
7.1 Customer is entitled to invite Users exclusively from Customer’s or its separately permitted Affiliates’ organisation and shall not provide access to the Online Service to any third parties, unless otherwise agreed.
7.2 Only the Users provided with a username and a password are allowed to access and use the Online Service.
7.3 Customer is responsible for all use of the Online Service under the Users’ user accounts. Customer shall use all reasonable endeavours to prevent unauthorised access to, or use of, the Online Service. All passwords and other identifiers relating to the Users’ use of the Online Service shall be kept confidential. In the event of or if Customer or a User has reason to suspect any unauthorised access or use of the Online Service, or if any password has been revealed to a third-party, Customer shall promptly and immediately notify Sellforte thereof.
7.4 Customer shall remove and manage the access rights to the Online Service when necessary, such as in case of termination of employment of Customer’s employees.
8 AVAILABILITY AND MODIFICATIONS TO THE ONLINE SERVICE
8.1 Sellforte is entitled to deliver the Online Service is it deems appropriate, and it will make reasonable efforts to keep the Online Service operational. Sellforte shall have the right to suspend the availability of the Online Service due to installation, change or maintenance work or due to severe data security risk to the Online Service or if required by law or public authorities, or due to force majeure. If Sellforte suspends the Online Service for this reason, it shall inform the Customer of the suspension and the duration of the estimated suspension in advance or, if this is not reasonably possible, without undue delay after Sellforte has become aware of such occurrence.
8.2 The Customer acknowledges that interruptions to the availability of the Online Service may also occur due to no fault of Sellforte, for example, in the event of data connection disruptions or interruptions to the availability of systems or components delivered by third parties.
8.3 Customer understands, agrees, and accepts that Sellforte has no obligation to support, upgrade, or update the Online Service, or to provide any specific content through the Online Service. Any features provided on the Online Service may be subject to changes at Sellforte’s full discretion. In the event of any substantial or major change to the Online Service, Sellforte will inform the Customer on its website at www.sellforte.com or directly in the Online Service or otherwise (e.g., in the platform, via the knowledge base or by email to the email address on record with Sellforte). If the Customer does not accept such material change to the Online Service, the Customer has the right to terminate the Agreement by notifying Sellforte thereof prior to the effective date of such change.
8.4 If separately agreed, Sellforte provides support as set forth in the applicable Order Form or Statement of Work. For this purpose, the Customer must allow Sellforte to access the applicable Customer Content Sources and provide any additional information as is reasonably necessary to provide the support. As reasonably necessary to provide the support, Sellforte’s personnel may view and edit Customer Content Sources, settings, and analysis results and access the specific user view of Customer’s or its Affiliates’ User, for the purposes of providing the support. Upon the Customer’s request or approval, Sellforte’s personnel may also modify Customer Content Sources, but Customer shall remain fully responsible for any such actions and results thereof.
8.5 Sellforte reserves the right, at its sole discretion, to modify and change any Free Versions at any time without prior notice and with no liability.
9 SERVICE FEES
9.1 The applicable Service Fees for the Services are set out the applicable Order Form and/or Statement of Work.
9.2 Any Free Version is provided free of charge.
9.3 Unless otherwise indicated, all Service Fees are exclusive of VAT and any other applicable taxes or fees or payment charges imposed by public authorities or financial institutions from time to time. Such taxes and fees shall be added to the Service Fees and be borne by the Customer. If Sellforte has the legal obligation to pay or collect taxes or other fees/ payment charges referred to herein, for which Customer is responsible under this section, Sellforte will invoice Customer such taxes and other fees or payment charges. To the extent Customer is required by applicable law to withhold taxes from the Service Fees, Sellforte will increase the invoiced amounts so that Customer’s payments to Sellforte after withholdings and without VAT match agreed Service Fees. For clarity, Sellforte is solely responsible for taxes assessable against it based on its income, property, and employees.
9.4 Invoicing schedule for the Services is agreed in each applicable Order Form and/or Statement of Work.
9.5 For all Services, the payment term is 30 days net from the date of the invoice.
9.6 In case the Parties have agreed on Professional Services (as defined in and agreed by executing a Statement of Work) and traveling is required for such purposes, Sellforte shall be entitled to charge for customary and reasonable travel and accommodation costs as well as per diem allowances separately.
9.7 The Customer may upgrade its version of the Online Service, or purchase additional features, at any time during the term of the Agreement. Sellforte shall promptly charge any applicable Service Fees from Customer resulting from such upgrade. Downgrades of the Services shall enter into force after the expiry of the term of the Agreement during which the downgrade was made.
9.8 Any notices by Customer relating to invoices or payments hereunder shall be given in writing to Sellforte within fourteen (14) days from the date of receipt of the relevant invoice or payment.
9.9 Interest on overdue payments shall accrue according to the Finnish Interest Act (633/1982, in force as amended from time to time). The Customer shall be responsible for the reasonable costs incurred by Sellforte when collecting overdue fees.
9.10 Without prejudice to its other rights, Sellforte may temporarily disable the Customer’s access to the Online Service or terminate the Agreement with immediate effect in the event the Customer has overdue payments in excess of thirty (30) days.
9.11 If not otherwise agreed in the applicable Order Form or Statement of Work, Sellforte is entitled to adjust the Service Fees of the Services by providing the Customer with a prior notice of at least thirty (30) days. In case the Customer disagrees with such adjustments, the Customer is entitled to terminate the applicable Order Form or Statement of Work to which Sellforte’s Service Fee adjustment is made to, by providing Sellforte with a notice thereof prior to the effective date of such adjustment of the Service Fees.
9.12 All Service Fees and payments made to Sellforte are non-refundable, unless otherwise agreed.
10 FREE VERSION(S)
10.1 Certain features of the Online Service may be provided free of charge as part of a Free Version. Customer agrees and acknowledges that all features of the Online Service will not be available in the Free Version.
10.2 Sellforte reserves the right, in its sole discretion, to determine Customer’s eligibility for a Free Version and to withdraw or modify a Free Version at any time without prior notice and with no liability whatsoever.
10.3 The Free Version is always provided on an “as is” basis and Sellforte shall have no liability resulting from the Customer’s or User’s use of the Free Version or otherwise.
11 CUSTOMER CONTENT
11.1 The Intellectual Property Rights to Customer Content, to the extent such content is protectable under applicable Intellectual Property Rights, shall belong to the Customer and the Customer shall have sole responsibility for the legality, reliability, integrity, accuracy, and quality of the Customer Content.
11.2 Customer hereby grants Sellforte a non-exclusive, worldwide, and limited right to use the Customer Content and Customer Content Sources for purposes of delivering and performing the Services under this Agreement. In case there are any third-party restrictions relating to the Customer Content, the Customer shall notify Sellforte of the same when providing the Customer Content to Sellforte and the Parties shall discuss and agree in good faith on how such restrictions are taken into account in the provision of the Services.
11.3 Sellforte shall have the right to generate anonymous, de-identified, usage, statistic, and other data from and by analysing Customer’s use of the Services and the Customer Content (Aggregate Data). Sellforte shall be entitled (during and after the term of this Agreement) to use such information and data to improve and enhance its current or future Services and for other development, diagnostic and corrective purposes in connection with the Services and other of its products or offerings, strictly provided that all such Aggregate Data is in de-identified form, and that it is not attributable to any individual or company.
11.4 The Customer shall ensure that Customer Content does not infringe any third-party Intellectual Property Rights or other rights, or violate any applicable laws or legislation (including applicable privacy laws). Customer shall not upload or provide any illegal, offensive, threatening, libellous, defamatory, or otherwise inappropriate data to the Services.
11.5 In case Sellforte believes, in its reasonable opinion, that any Customer Content violates this Agreement, Intellectual Property Rights or any applicable law, Sellforte shall have the right to immediately delete such Customer Content from the Online Service without prior notice to the Customer.
11.6 The Online Service shall not be used as a storage service. Customer shall be solely responsible for storing appropriate backup copies of the Customer Content.
12 PERSONAL DATA PROTECTION
12.1 To the extent Customer Content contains Personal Data, Sellforte processes such Personal Data as a Data Processor on behalf of the Customer for the purposes of the Agreement.
12.2 The Customer expressly acknowledges and agrees that it is strictly the Customer's obligation to observe and to comply with any and all applicable national or international privacy and data protection laws and regulations (including but not limited to the EU General Data Protection Regulation, GDPR), regarding the Personal Data contained in any materials, information data and Customer Content provided by the Customer for the purposes of the Services, regardless of the country or state in which the Customer is based. The above mentioned includes, but is not limited to, complying with the terms and restrictions and any applicable privacy policies and cookie opt-in policies of any third-party service provider.
12.3 Further terms regarding Sellforte’s processing of Personal Data is set out in Appendix 1 of these Terms of Service.
13 INTELLECTUAL PROPERTY RIGHTS
13.1 If not otherwise agreed herein, no Intellectual Property Rights of either Party shall be transferred.
13.2 All right, title and interest in and to all Intellectual Property Rights in or related to the Online Service or any other service or offering provided by Sellforte (including but not limited to any methods, systems, software, algorithms, images and source code), any Aggregate Data (as defined in section 11.3) as well as any related documentation and analytics (including modifications to any of the foregoing, if any) and all parts and copies thereof shall remain exclusively vested with and be the sole and exclusive property of Sellforte.
13.3 If the Customer provides feedback, requests features, changes or tools, or otherwise provides comments relating to the Online Service or provides suggestions or ideas for improving the Services (all the aforementioned referred to as “Feedback”), the Customer agrees that such Feedback will be fully assigned to Sellforte without any obligation for Sellforte to pay separate compensation, and Sellforte shall have the title of, and own all rights to, such Feedback and may thus freely use and incorporate them into its product offerings.
13.4 All right, title and interest in and to all Intellectual Property Rights in or related to the Customer Content and any derivatives thereof, as well as any related documentation and analytics (including modifications to any of the foregoing, if any) and all parts and copies thereof shall remain exclusively vested with and be the sole and exclusive property of the Customer and/or its subcontractors or licensors, as the case may be.
13.5 Further terms regarding Intellectual Property Rights pertaining to such services and any deliverables created in connection, as are separately described and ordered through the applicable Statement of Work, are set out in the applicable Statement of Work in question.
14 INDEMNIFICATIONS
14.1 Sellforte shall at its own expense indemnify the Customer against claims presented against the Customer that the Online Service infringes third-party Intellectual Property Rights in the agreed country of delivery or use, provided that the Customer promptly notifies Sellforte in writing of such presented claims and permits the Sellforte to defend or settle the claims on behalf to the Customer and gives to Sellforte, at the request of the Sellforte and at Sellforte’s expense, all necessary information and assistance available and the necessary authorisations. Sellforte shall pay all damages finally awarded in a trial or agreed to be paid to a third party if the Customer has acted in accordance with the foregoing. Sellforte shall not settle any claim on behalf of the Customer without Customer’s prior written consent.
14.2 If in the reasonable opinion of Sellforte the Online Service infringes third-party Intellectual Property Rights in the agreed country of delivery or use, or if such infringement has been confirmed in a trial, Sellforte shall and may at its own expense and discretion either (a) obtain the right to continue the use of the Online Service for the Customer; (b) replace the Online Service with a corresponding product or service that complies with the Agreement (if this is reasonably feasible); or (c) modify the Online Service in order to eliminate the infringement in such a manner that the modified Online Service complies with the Agreement. If none of the above-mentioned alternatives is available to the Sellforte on reasonable terms as determined by Sellforte, the Customer shall, at the request of the Sellforte, immediately stop using the Online Service, and Sellforte shall refund the Service Fees paid by the Customer for the Online Service, less the proportion of the price corresponding to the actual time of use.
14.3 Sellforte shall have no obligations under this Clause 14 to the extent any infringement claim arises from: a) the Customer’s combination of the Online Service with other software or services or Customer’s modification to any part of the Online Service or Customer’s violation of Section 6 (Restrictions of use) if such claim would not have been made without Customer’s combination or modification of the Online Service or Customer’s violation of Section 6; or b) information or materials provided by the Customer and used by Sellforte for the performance of the Services in accordance with this Agreement or c) the Customer Content, or d) if the claim is asserted by a company, which exercises control over the Customer or which is controlled by the Customer.
14.4 The Customer shall defend or settle any claim made against Sellforte, and if applicable, its licensors, and Affiliates, if such claim arises out of or in connection with: (a) Customer disrupting the Online Service in violation of applicable legislation or Customer’s breach of Section 6 (Restrictions of use) of these Terms of Service; or (b) that the Customer Content used in connection with the Services violates, infringes or misappropriates the Intellectual Property Rights of a third party. Sellforte agrees i) to promptly notify the Customer in writing of any such claim, ii) to allow the Customer to have sole control over the defence, litigation and/or settlement of any such claim and iii) to reasonably cooperate with the Customer in the investigation, defence and settlement thereof. The Customer shall indemnify Sellforte and if applicable, its licensors, and Affiliates, for such claim by paying the costs and reasonable attorneys’ fees incurred by the foregoing parties as a result of such claim, including damages awarded to such third party in a judgment finally awarded against Sellforte or settlement. In no event shall the termination of the Services, pursuant to circumstances in above points (a) to (b) relieve Customer from its obligation to defend and indemnify Sellforte as set forth herein. Customer shall not settle any claim on behalf of Sellforte without Sellforte’s prior written consent.
14.5 The indemnity obligations contained in this Clause 14 contain both Party’s sole, exclusive and entire liability and remedy for indemnity obligations arising out of third-party claims related to Intellectual Property Rights.
15 CONFIDENTIALITY
15.1 Neither Party shall disclose to third parties any material or information received from the other Party and marked as confidential or which should be understood to be confidential and shall not use such material or information for any other purposes than those stated in this Agreement.
15.2 In case the Customer Content or any other material or information that the Customer provides to Sellforte for the provision of Services, contain inside information or other information that is subject to heightened confidentiality or other obligations, the Customer shall be obliged to inform Sellforte of the nature of such information and any actions or restrictions to protect it prior to providing the information to Sellforte.
15.3 Both Parties shall promptly upon termination of the Agreement cease using the other Party’s confidential information (as defined in this section 15). Either Party has the right at any time request to have its confidential information deleted, and the other Party is obliged to comply with such request without undue delay. This shall not apply to confidential information or copies thereof which must be stored by the receiving Party in accordance with applicable law.
15.4 The obligation of confidentiality is applied during the term of this Agreement and for five (5) years after the termination of the Agreement unless applicable laws require for a longer obligation of confidentiality. The foregoing time limit shall not apply to trade secrets for which the time limit shall continue as long as the information qualifies as trade secret under the governing law of this Agreement.
15.5 The confidentiality obligation shall, however, not be applied to material and information, (a) which is generally available or otherwise public; or (b) which the Party has lawfully received from a third-party without any obligation of confidentiality; or (c) which was lawfully in the possession of the receiving Party prior to receipt of the same from the other Party without any obligation of confidentiality related thereto; or (d) which a Party has independently developed without using material or information received from the other Party as verified by the written records of the receiving Party; or (e) which a Party is obligated to disclose due to applicable mandatory laws, public authority regulations or court orders. In case of disclosure due to subsection (e), the Party so obligated must promptly inform the other Party of such disclosure.
16 WARRANTIES, WARRANTY DISCLAIMERS AND LIMITATION OF LIABILITY
16.1 EXCEPT AS SPECIFICALLY PROVIDED UNDER THE AGREEMENT, THE SERVICES ARE PROVIDED "AS IS" AND WITH THE FUNCTIONALITIES AVAILABLE AT EACH TIME WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. SELLFORTE DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. HOWEVER, SELLFORTE AGREES TO USE COMMERCIALLY REASONABLE EFFORTS TO BE AVAILABLE TO SUPPORT THE CUSTOMER AND TO CORRECT ANY MATERIAL ERROR OR DEFICIENCY IN THE SERVICES.
16.2 The warranty does not cover errors or deficiencies attributable to (a) changes to the Online Service or to any deliverables created as a part of services agreed in the applicable Statement of Work, and which changes are made by the Customer and which have not been approved by Sellforte in writing; (b) use of the Online Service contrary to this Agreement, or the written instructions given by Sellforte; (c) use of the Online Service contrary to the third party terms and policies; (d) disturbances or interruptions in the Online Service due to data network; or (e) a service or product not supplied by Sellforte or other similar reason outside of the Services.
16.3 The Customer acknowledges that the use of the Services is dependent on the applicable Customer Content Sources and that such information and data may also originate from third-party sources. Sellforte shall have no liability for the accuracy or completeness of data and information originating from the Customer or third-party sources.
16.4 Sellforte shall not be responsible for any reason whatsoever for the destruction, disappearance of or for changes to the Customer Content, such as the costs incurred by recreation of the files. The Customer shall be responsible for making backup copies with respect to his own Customer Content.
16.5 The Customer acknowledges that the actions of the Customer and third-party solution providers may also affect the use of the Online Service or the delivery of other Services. Customer is responsible for accepting and complying with any agreements, terms, policies and guidelines of any third-party solution providers it uses in connection with the Services (most notably related to Customer Content Sources). Sellforte does not accept any liability for the operation and function of any Customer or third-party products, services, actions, or omissions, including but not limited to, those of third-party solution providers, the Customer Content Sources or any third party that operates in or with the applicable Customer Content Sources.
16.6 Neither Party shall be liable for any indirect, special, incidental punitive or consequential damages, or for any loss of data, lost business opportunities or lost profits, in any way arising in connection with the Services, caused to the other Party.
16.7 EACH PARTY’S TOTAL AGGREGATE LIABILITY UNDER OR IN CONNECTION WITH THE AGREEMENT MAY NOT IN ANY CALENDAR YEAR STARTING FROM THE EFFECTIVE DATE, OR FIRST USE OF THE SERVICES, WHICHEVER IS EARLIER, EXCEED AN AMOUNT EQUAL TO THE AGGREGATE AMOUNT OF SERVICE FEES RECEIVED BY SELLFORTE FROM THE CUSTOMER UNDER EACH APPLICABLE ORDER FORM AND/OR STATEMENT OF WORK DURING THE TWELVE (12) MONTHS’ PERIOD PRECEDING THE OCCURRENCE FOR WHICH DAMAGES ARE CLAIMED.
16.8 Nothing contained herein shall be deemed to limit each Party’s liability towards the other Party in the event of and to the extent that the damages are caused by wilful misconduct or gross negligence of the breaching Party or to damages resulting from the breach of the Sections 6 (Restrictions of use), 13 (Intellectual Property Rights), 14 (Indemnification) or 15 (Confidentiality).
16.9 Parties have no other obligations or liabilities than those that have expressly been agreed upon in this Agreement. Sellforte shall not be liable for any costs or damages resulting from the use of the Free Version.
16.10 The use of the Online Service or its contents or the Services (including materials or information included in or generated by the Services) do not constitute a legal opinion or advice of any kind. The Customer is responsible for the use and utilisation of the Online Service and contents of the Services and for the assessment of the impact of the Services and the content of the Services on the Customer’s operations.
17 TERM AND TERMINATION
17.1 The term of the Agreement for each applicable Service is set out in each applicable Order Form and/or Statement of Work.
17.2 For the avoidance of doubt, in case of termination of any of the Services under a specified Order Form or Statement of Work, any other Services agreed and in force under separate Order Form(s) or Statement(s) of Work (if any) and the Agreement remain unaffected for such Services that remain in force.
17.3 Both Parties may terminate the Agreement (for any Services in force) with immediate effect by written notice to the other Party, if the other Party is dissolved or liquidated, is declared bankrupt or otherwise becomes the subject to other insolvency proceedings.
17.4 The Agreement concerning a Free Version may be terminated by either Party for convenience with immediate effect by providing the other Party with a notice thereof.
17.5 Both Parties may terminate the Agreement (including any Services in force) with immediate effect by giving a written notice thereof to the other Party, if the other Party materially breaches its obligations under the Agreement (including Customer’s payment obligations) and does not remedy the failure within thirty (30) days of a written notice (email being sufficient) by the other Party.
17.6 The Customer shall continue to have access to the Online Service and Sellforte is entitled to charge the Service Fees and other applicable fees until the end of the termination notice period. Upon expiry or termination of the Agreement, the Customer shall cease to use the Online Service and return to Sellforte any possible copies of materials provided by Sellforte to Customer hereunder unless otherwise agreed.
17.7 Unless otherwise agreed herein, no paid Service Fees will be returned by Sellforte, and the Customer is obliged to pay the Service Fees past due at the effective date of such termination.
17.8 All provisions of this Agreement that are intended to survive the termination or expiry of this Agreement shall do so, including without limitation Sections 13 (Intellectual Property Rights), 15 (Confidentiality), 16 (Limitation of Liability) and 18.1 (Governing Law and Dispute Resolution).
18 MISCELLANEOUS
18.1 Governing Law and Dispute Resolution
This Agreement shall be exclusively 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 relating to the Agreement or a breach, termination or validity thereof shall be settled primarily by amicable negotiations between the Parties. Should the negotiations not lead to a settlement between the Parties within sixty (60) days, any dispute, controversy or claim arising out of or relating to this Agreement, 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 number of arbitrators shall be one. The seat of arbitration shall be Helsinki, Finland. The language of the arbitration shall be English, and if the Parties so agree, Finnish. The arbitral proceedings and award shall be confidential. Nothing in this Agreement shall be deemed to limit Sellforte’s rights to seek interim injunctive relief or to enforce an arbitration award in any court of law. With respect to any violation by the Customer of any Intellectual Property Rights and/or confidential information of Sellforte and/or payment obligations under this Agreement, Sellforte shall have the right, at its sole discretion, to seek remedies in public courts within any applicable territory.
18.2 Force Majeure
Neither Party shall be liable for delay and damage caused by an impediment beyond the Party’s control and which the Party could not have reasonably taken into account at the time of conclusion of the Agreement and the consequences of which the Party could not reasonably have avoided or overcome. Such force majeure events shall include, if not proven otherwise, inter alia, war or insurrection, earthquake, flood or other similar natural catastrophe, pandemics, interruptions in general traffic, data communication or supply of electricity, import or export embargo, strike, lockout, boycott or other similar industrial action.A force majeure event suffered by an external service provider of a Party shall also be considered a force majeure event in relation to the Party 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 ceasing of such event. Where a Party’s performance is prevented for a period in excess of three (3) months due to an event as stated above, either Party shall be entitled to terminate the Agreement with immediate effect.
18.3 Subcontractors
Sellforte shall be entitled to use subcontractors for the provision of the Services. Sellforte shall be liable for the subcontractors’ work and services in the same manner as for its own work and services.
18.4 Notices
Any notice or other written communication to be given by the Parties under this Agreement shall be in English and, with regard to notices to Sellforte, sent by email to the email address notices@sellforte.com, and with regard to notices to the Customer, sent by email to the email address specified in the applicable Order Form and/or the Statement of Work.
18.5 Amendments
Sellforte is entitled to amend, update and modify these Terms of Service from time to time and by continuing to use the Services after having been informed of the modification by written notice of Sellforte (email being sufficient), the Customer accepts the updates and modifications and the revised Terms of Service shall enter into force after thirty (30) days have elapsed from the written notice of by Sellforte. If the Customer does not accept the change made by Sellforte to these Terms of Service, the Customer has the right to terminate the Agreement by notifying Sellforte thereof in writing prior to the effective date of such change.
18.6 Export Restrictions
The Customer agrees to comply with any export restrictions in force in any jurisdiction that may be applied to the provision of the Services hereunder.
18.7 Headings
Headings used in the Agreement are for convenience only and do not alter the meaning or interpretation of any provision herein, unless otherwise stated.
18.8 Reference Use
Sellforte may use Customer’s company name(s) and logo(s) for marketing purposes, including on the Sellforte website and in press releases, promotional and sales literature, customer/prospect presentations, and customers lists.
18.9 Severability
If any part of the Agreement is held to be invalid or unenforceable by any court, tribunal or other authority having jurisdiction, this shall not affect the validity or enforceability of the rest of the Agreement. Instead, the Agreement shall be construed and interpreted so that its effect shall remain as close as legally possible to the effect it would have had without such invalidity or unenforceability.
18.10 Assignment
Neither Party may assign the Agreement or any rights or obligations hereunder without the prior consent of the other Party. Sellforte may, however, assign all or any of its rights or obligations hereunder in whole or part to an affiliate or successor or to a purchaser or acquirer of its business assets without the Customer’s prior consent. The Agreement shall be binding upon, and inure to the benefit of, the successors, representatives and permitted assigns of the Parties hereto.
In addition, Sellforte shall be entitled to transfer its receivables hereunder to a third-party.
APPENDIX 1: DATA PROCESSING APPENDIX
1 SCOPE OF APPLICATION AND ROLES OF PARTIES
1.1 This Data Processing Appendix (“DPA”) is an attachment to and forms an integral part of the Agreement which governs the use of the Service(s) (as defined in the Terms of Service) provided by the Sellforte to the Customer specified in the applicable Order Form and/or Statement of Work.
1.2 In the course of providing the Services to the Customer, Sellforte may process Personal Data on behalf of the Customer, as a Data Processor. Depending on the case, the Customer shall be either the Data Controller, or the Data Processor on behalf of its end-customers. The Parties understand and agree that there may be further third parties involved in the provision of the Services (e.g. service providers of the Customer Content Sources). However, as Sellforte does not have access to the Personal Data held and processed by such third parties, such processing of Personal Data shall not be in the scope of this DPA.
1.3 The purpose and scope of this DPA is to agree on the terms and conditions for the processing of Personal Data by Sellforte on behalf of the Customer in connection with its provision of the Services. This DPA together with the Agreement forms a data processing agreement in the meaning of applicable Data Protection Legislation. For the purposes of this DPA, Sellforte shall also include Sellforte’s Affiliates.
1.4 Unless expressly otherwise set out herein, the applicable definitions provided in Terms of Service shall be applied to this DPA. In case a definition provided in this DPA and a definition provided in the Terms of Service conflict, for the purposes of this DPA the definition provided in this DPA shall prevail.
1.5 In case of a conflict between the terms set out in this DPA and the terms of the Terms of Service, the terms set out in this DPA shall prevail.
2 DURATION AND TERMINATION OF THE PROCESSING
2.1 This DPA becomes effective simultaneously with the Agreement (as defined in the applicable Order Form and/or Statement of Work) and shall continue to be in effect until the Agreement is terminated in accordance with the applicable Order Form and/or Statement of Work.
2.2 Processing of the Personal Data may be conducted as long as such processing is required for the supply of the Services by Sellforte.
3 PROCESSING OF PERSONAL DATA
3.1 Sellforte shall only process such Personal Data necessary for the provision of the Services or otherwise in connection with the purposes of the Agreement. Sellforte undertakes not to process Personal Data except in accordance with the Customer’s documented instructions which the Agreement and this DPA shall constitute at the Effective Date. Any additional or alternate instructions must be agreed upon separately, but Sellforte shall not be obliged to follow any instructions given by the Customer due to Data Protection Legislation or if it considers that such instructions may not be with all respects valid and/or legitimate.
3.2 The Customer represents and warrants that the Customer is, and for the duration of the Agreement remains, in compliance with any and all responsibilities for Data Controllers under Data Protection Legislation towards data subjects, Sellforte and relevant third parties.
3.3 The Customer especially represents and warrants that the Customer is entitled to disclose or transfer Personal Data to Sellforte for lawful processing hereunder.
3.4 The Customer acknowledges that due to the nature of the Services, Sellforte cannot control and has no obligation to verify Personal Data transferred or made available to Sellforte for processing under this DPA and the Agreement. The Customer shall have sole responsibility for the accuracy, quality, and legality of any Personal Data subject to this DPA and the Agreement, as well as the means by which it has acquired such Personal Data and for allowing Sellforte to process such Personal Data under this DPA.
4 CATEGORIES OF PERSONAL DATA AND DATA SUBJECTS
4.1 The Customer may submit Personal Data to the Services, the extent of which is determined and controlled solely by the Customer, in its sole discretion.
4.2 The types and categories of Personal Data, considering the nature of the Services, consist of the personal data of the Users (such as login information data), the end-user data of the Customer Content Sources used by the Customer, and possible direct and indirect Personal Data contained in the Customer Content and other data provided by the Customer.
4.3 Personal Data may also include other types of Personal Data if required by the purpose of the processing and as agreed between the Parties.
5 SUPPLIER PERSONNEL
5.1 Sellforte shall take reasonable steps to ensure the reliability of any of its employee, agent or contractor who may have access to Personal Data, ensuring that access is strictly limited to those individuals who need to access the relevant Personal Data for the agreed purposes, and ensuring that all such individuals:
(i) are informed of the confidential nature of the Personal Data and are aware of Sellforte’s obligations under this DPA and the Agreement in relation to the Personal Data;
(ii) have undertaken training in relation to the Data Protection Legislation; and
(iii) are subject to confidentiality undertakings or professional or statutory obligations of confidentiality.
6 SECURITY
6.1 Sellforte implements appropriate technical and organizational measures to ensure appropriate level of security, such as the measures described in article 32 of the GDPR.
6.2 In assessing the appropriate level of security, Sellforte shall take account the risks that are presented by processing, in particular from accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to the Personal Data processed.
7 SUBPROCESSING
7.1 The Customer acknowledges and hereby authorizes Sellforte to engage subprocessors (including its Affiliates, if applicable) in connection with the performance of the Sellforte’s obligations under the Agreement and this DPA, subject to Sellforte’s compliance with this DPA.
7.2 A list of Sellforte’s subprocessors used from time to time may be provided to the Customer upon request. Sellforte undertakes to inform the Customer regarding changes (additions or replacements) in the list of subprocessors used by Sellforte for the purposes of processing Personal Data in connection with this DPA and the Agreement. The Customer may, for a grounded reason pertaining to privacy and data protection, object the use of a certain subprocessor. In such case, the Parties shall strive to find an alternative solution pertaining to the processing of Personal Data for the purposes of providing the Services under the Agreement. If such solution is not found, Sellforte may terminate or suspend the processing of Personal Data without being in breach of the Agreement or this DPA. In such case, Sellforte is further entitled to terminate the Agreement with immediate effect, without incurring any liability to the Customer.
7.3 With respect to each subprocessor, Sellforte shall:
(i) only use subprocessors that, to Sellforte’s reasonable knowledge, are capable of providing materially the same level of protection for Personal Data as is required by this DPA in such a manner that the processing will meet the requirements of the GDPR and this DPA;
(ii) include terms in the contract between Sellforte and each subprocessor which are substantially similar to those set out in this DPA; and
(iii) remain liable (subject to the GDPR) for the actions of its subprocessors as it is of its own.
8 DATA SUBJECT RIGHTS
8.1 Sellforte agrees to reasonably and insofar as practically possible assist the Customer in the fulfilment of the Customer’s obligations (as the Controller in each case) to respond to requests for exercising data subject rights established by the GDPR. Sellforte shall without undue delay notify the Customer if it receives a request from a data subject under any Data Protection Legislation in respect of Personal Data.
8.2 Sellforte agrees to reasonably and insofar as practically possible co-operate with the Customer to enable the Customer to comply with the exercise of rights by a data subject under any Data Protection Legislation in respect of Personal Data and comply with any assessment, enquiry, notice or investigation under any Data Protection Legislation in respect of Personal Data or this DPA by e.g. providing the Customer with the necessary information on the Sellforte’s processing of the Personal Data.
8.3 The Customer shall reimburse Sellforte for reasonable costs incurred by Sellforte while providing assistance to the Customer in accordance with sections 8.1 and 8.2 above.
9 PERSONAL DATA BREACH
9.1 Sellforte shall notify the Customer without undue delay upon becoming aware of a personal data breach, providing the Customer with sufficient information which allows the Customer to meet its obligations to report a personal data breach under the Data Protection Legislation. Such notification shall include the information required under the Data Protection Legislation. The information can also be provided in instalments if Sellforte cannot reasonably provide all required information at once.
9.2 In the event of a personal data breach, Sellforte shall not inform any third party without first obtaining the Customer’s prior written consent, unless notification is required by Data Protection Legislation to which Sellforte is subject, in which case Sellforte shall to the extent permitted by such law inform the Customer of that legal requirement, provide a copy of the proposed notification and consider any comments made by the Customer before notifying the third party.
9.3 The Customer shall reimburse Sellforte for reasonable costs incurred by Sellforte while providing assistance to the Customer in accordance with sections 9.1 and 9.2 above.
10 DATA PROTECTION IMPACT ASSESSMENT AND PRIOR CONSULTATION
10.1 Sellforte shall provide reasonable assistance to the Customer with any data protection impact assessments which are required under article 35 of the GDPR and with any prior consultation to any supervisory authority of the Customer which are required under article 36 of the GDPR, in each case solely in relation to the processing of the Personal Data by Sellforte on behalf of the Customer, and taking into account the nature of the processing and information available to Sellforte.
10.2 The Customer shall reimburse Sellforte for reasonable costs incurred Sellforte while providing assistance to the Customer in accordance with section 10.1 above.
11 DELETION OR RETURN OF PERSONAL DATA
11.1 Following the termination or expiration of the Agreement, Sellforte shall within a reasonable time period delete and procure deletion of all copies of Personal Data processed by Sellforte or its subprocessor(s), unless Sellforte is required to retain the Personal Data due to mandatory requirements under Data Protection Legislation.
11.2 For the avoidance of doubt, Sellforte shall be entitled to generate anonymous Aggregate Data (as defined in the Terms of Service), to which Aggregate Data the deletion or return obligations contained in this Section 11 shall not apply.
12 AUDIT RIGHTS
12.1 Upon request, Sellforte agrees to make available to the Customer the information necessary to demonstrate compliance with this DPA and allow for and contribute to audits, including inspections by the Customer or a third-party auditor approved by Sellforte (where such approval may not be unreasonably upheld), and agreed by both Parties of Sellforte’s premises where the processing of Personal Data takes place in order to assess compliance with this DPA. Sellforte shall permit the Customer or its mandated auditor to inspect, audit and copy Sellforte’s relevant records, and to inspect and audit processes and systems. Sellforte agrees to co-operate in respect of such audit. All audits by the Customer or a mandated auditor are subject to a thirty (30) days’ prior written notice. For the sake of clarity, any proposed third-party auditor may not under any circumstance be a direct or indirect competitor of Sellforte. Sellforte has the right to require that the third-party auditor shall enter into an appropriate non-disclosure agreement with Sellforte, prior to any audit referred to herein.
12.2 Unless otherwise agreed between the Parties, the Customer is allowed to conduct one (1) audit in every twelve (12) months. Any audit must be conducted during normal business hours and in a way that does not cause substantial disturbance to Sellforte’s business operations. The Customer shall bear all costs for such audit, unless the audit reveals that the Sellforte has committed a substantial breach of this DPA, in which case Sellforte shall bear the audit costs.
12.3 The Customer also has the right to request and receive the information and material strictly necessary for regulatory supervision, auditing, or internal risk management and supervision relating to the Customer’s operations from Sellforte. This includes allowing audits at the Sellforte’s premises used for processing Personal Data performed by supervisory authorities or auditors. Sellforte shall ensure that its subcontractors are likewise obligated to give necessary information and material and allow audits as stated above.
13 TRANSFERS
13.1 Sellforte may not transfer any Personal Data outside the European Economic Area (EEA) without prior written consent of the Customer.
13.2 If the Customer gives its consent for such transfer of the Personal Data, or if any transfer of the Personal Data in connection with the Agreement otherwise constitutes a transfer of the Personal Data outside the EEA, the Parties shall enter into the EU Commission’s Standard Contractual Clauses or similar transfer mechanism approved under applicable Data Protection Laws.
13.3 To the extent that there is any conflict or inconsistency between the terms of Standard Contractual Clauses and the terms of this DPA, the terms of the Standard Contractual Clauses shall take precedence.
14 LIABILITY
14.1 Each Party’s liability for the damages incurred by any data subject in connection with the processing of Personal Data under the Agreement and this DPA shall be defined in accordance with article 82 of the GDPR, or another corresponding and applicable provision of compulsory Data Protection Legislation.
14.2 Sellforte shall not be liable for any indirect or consequential loss or damage caused in connection with this DPA. Otherwise, the liability terms of the Agreement shall apply to processing of the Personal Data by Sellforte on behalf of the Customer.