Terms of Service -EN

Last updated: 18 November 2024

These general terms of service form an integral part of the order (Order) which governs the use by the customer specified in the Order (Customer) of the AI driven sales agency services (Services) provided by Upseller Finland Oy (Upseller). Upseller and Customer shall be hereinafter jointly referred to as Parties and each separately as Party.

1. Delivery of the Services

Subject to Customer paying applicable service fees, Upseller shall use reasonable efforts to provide the Services materially in accordance with the Order.

If the Parties have agreed on delivery of some consulting services, Upseller shall use reasonable efforts to provide such Services in accordance with the agree schedule and other terms agreed in the Order.

Upseller is entitled to carry out maintenance work for the Services. Upseller shall use commercially reasonable efforts to limit the impact of the maintenance work to Customer’s use of the Services. Customer is not entitled to any damages or compensations for any interruptions of the Services, if they are caused by such maintenance work.

In case there is any defect or failure in the Services, Upseller shall without undue delay make its reasonable commercial efforts to rectify the defect or failure without undue delay. If Upseller has not been able to rectify the defect or failure without undue delay, Customer shall have the right to terminate the Order with immediate effect and have refund of any service fees paid for Services relating to period following the termination. The process described in this paragraph shall be the Customer’s sole remedy and Upseller’s sole obligation in case of any defects or failures in the Services.

Upseller shall not be liable for any defects or interruptions in the Services that are caused due to disturbances or unavailability of any third-party services, networks or equipment. Upseller shall not be liable for the content, correctness or accuracy of the data submitted by or for the Customer in the Services.

Upseller has the right to make changes and updates to the Services at any time. Upseller shall notify Customer of any substantial changes to the Services in advance.

2. Professional Services

RESPONSIBILITIES OF THE SUPPLIER
The supplier shall be responsible for ensuring that the Professional Service is performed in accordance with the agreement, with due care and with the professional skills required for the task.

RESPONSIBILITIES OF THE CUSTOMER
The customer shall be responsible for ensuring that any tasks for which the customer is responsible are performed in accordance with the agreement and with due care.

The customer shall, in the agreed manner, provide the supplier with sufficient and correct information for the performance of the Professional Service. The customer shall be responsible for the information and instructions it provides to the supplier.

PROFESSIONAL SERVICE AND ACCEPTANCE OF ITS RESULTS
The parties shall specify the tasks included in the Professional Service and the schedule for the tasks in writing. The Professional Service shall be performed using the supplier’s working methods.

Each party shall be obligated to contribute to the provision of the Professional Service in respect of factors that the party manages or controls. Each party shall be responsible for ensuring that they make without delay any decisions that are necessary for the performance of the Professional Service.

Unless agreed otherwise in writing, the customer shall provide without undue delay the customer’s acceptance or complaints concerning the supplier’s written notification or interim or final reports related to the progress of the Professional Service and concerning the results of the Professional Service furnished by the supplier to the customer. If the customer does not submit a written complaint within seven (7) days from receiving such information or interim reports, the work covered by the notification or interim report is deemed to be accepted. Correspondingly, the work covered by a final report or the results of the Professional Service furnished by the supplier to the customer are deemed to be accepted if the customer does not submit a written complaint within thirty (30) days from receiving the final report or results. If the Professional Service does not include a final report or a delivery of the results of the Professional Service, the Professional Service shall be deemed to be accepted if the customer does not submit a written complaint within 30 days of the provision of the Professional Service.

The supplier’s liability regarding any defects in the Professional Service shall be limited to the supplier
rectifying the defect at its own expense, provided that the customer notifies the supplier of the defect in
writing within the time limit for acceptance

RIGHTS TO THE RESULTS
Unless agreed otherwise in writing, the intellectual property rights to any documents and other results created through the Professional Service and any changes made thereto by the supplier shall belong to the supplier.

Unless otherwise agreed in writing, the customer and any companies belonging at the given time to the same group of companies with the customer, as referred to in the Accounting Act, shall have the right to use in their internal operations any documents and other results that are created as a result of the Professional Service. Within the limits of the right of use, the customer shall have the right to freely copy and use as a basis for further work the documents and other results created as a result of the Professional Service, in addition to which the customer shall have the right to otherwise make changesor have changes made to them. The customer shall have no right to sell or otherwise transfer to any third parties the documents or other results created as a result of the Professional Service except for the purpose referred to hereinabove

The agreement shall not affect any rights related to material that the parties provide to each other for the performance of the Professional Service

3. Third-party technology

Customer acknowledges that the Services may operate, interface or be delivered with third-party technology, for example chatbot platform or AI technology, including without limitation large language models. The Parties acknowledge that large language models may generate content and responses which are incorrect, hallucinated or biased, whereby the Customer or its users or customers may receive incorrect, inappropriate or false responses.

In case of any defects or failures in third-party technology used in the Services or the content generated thereby, Upseller shall pass through to the Customer any rights it has against such third-party vendor under applicable law or contracts. Upseller disclaims any other obligations and liability in respect of third-party technology used in the Services or content generated thereby.

4. Customer’s Responsibilities

Customer is responsible for that its environment is suitable for and meets the requirements of the Services.

Customer is liable for any use of the Services by its credentials.

Customer may not:

1) copy, alter, sublicense, lease, distribute or rent the Services or make the Services available to the public or to any third parties;

2) reverse engineer, decompile or disassemble the Services;

3) use the Services in any manner or for any purpose prohibited by any laws or regulations;

4) take any action designed to unlock or bypass any implemented restrictions on usage, access to, or number of installations of the Services; or

5) use the Services in purpose of spreading viruses or malware.

If Upseller has a reasonable doubt that Customer has used the Services in violation of the restrictions set forth above, Upseller is entitled to suspend the Services temporarily. When reasonably practicable and lawfully permitted, Upseller will provide Customer with advance notice of any such suspension. If Customer does not fully address the cause for the suspension within fourteen (14) days after suspension, Upseller may terminate the Order.

5. Data Protection

Each Party agrees to comply with their respective obligations under applicable data privacy and data protection laws. Customer is the person that determines the purposes and means for which Customer’s data is processed in the Services, whereas Upseller processes Customer’s data in accordance with the Order and the Upseller Data Processing Agreement https://www.upseller.fi/en/data-processing-agreement-en/.

Upseller may engage the organizations or persons listed at https://www.upseller.fi/en/data-processing-agreement-en/ to process Customer’s data. Customer hereby consents to the use of such sub-processors. The terms of processing Customer’s data by the relevant sub-processors are set forth in their respective data processing agreements that are available at https://www.upseller.fi/en/data-processing-agreement-en/.

6. Intellectual Property Rights

All ownership and intellectual property rights to the Services, including for the avoidance of doubt any related tools and methodologies as well as new versions, updates, customizations and other amendments thereof, as well as the results of any Services provided hereunder, shall belong to and shall remain the sole and exclusive, property of Upseller or its third-party licensors. Upseller grants the Customer the right to use the Services in accordance with the Order.

Notwithstanding anything to the contrary set out herein, Upseller shall have the right to use anonymous data extracted from the Customer data processed in the Services for internal service development purposes.

7. Pricing and Payment Terms

Customer shall pay the subscription fee and/or other fees for the Services as specified in the Order. Unless otherwise agreed, Upseller shall invoice for any project and other professional services in accordance with Upseller’s then current standard hourly rates.

Unless otherwise agreed, Upseller shall invoice any subscription fees in advance on monthly or yearly basis as specified in the Order. Any other service shall be invoiced monthly in arrears. Payment shall be made in Euros against invoice. Unless otherwise agreed, the payment term is fourteen (14) days net from the date of the invoice. Interest on overdue payments is ten (10) percent p.a.

All prices are exclusive of applicable taxes and duties. Upseller shall add applicable VAT to the invoice.

Upseller has the right to change the pricing of the Services by informing Customer in advance. The changed prices shall take effect no earlier than two (2) months of the date of notification. If the Customer does not accept the changed prices, the Customer has the right to terminate the Order before the effective date of the change.

8. Disclaimer and limitation of liability

EXCEPT AS SPECIFICALLY SET OUT HEREIN, THE SERVICES ARE PROVIDED “AS IS” WITHOUT ANY WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF COMPATIBILITY WITH CUSTOMER’S OWN SOFTWARE OR HARDWARE OR FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT.

Neither Party shall be liable for any indirect or consequential loss or damage.

In any event, the total accumulated liability of either Party arising out of or related to the Order shall be limited to the aggregate amount of fees paid by the Customer to Upseller for the period of six (6) months prior to the breach.

This limitation of liability shall not apply to the extent liability arises directly from gross negligence or wilful misconduct.

9. Recruitment restriction

Neither party may employ a person who is employed or was employed by the other party if such a person performs or has performed essential duties related to the Professional Service in question, or otherwise enter into any other agreement or otherwise agree on any arrangements the purpose of which is to obtain the work contribution of the person in question until twelve (12) months have passed from the time the Professional Service or employment terminated, whichever is earlier.

In case of a breach of the recruitment restriction contained above, the breaching party shall be liable to pay to the other party by way of liquidated damages an amount corresponding to twelve (12) months’ gross salary of the person in question.

The recruitment restriction shall not, however, apply if the employment of the person in question has been terminated for a reason attributable to the employer or if the recruitment occurs on the initiative of the person in question in response to a public job advertisement.

10. Termination

Each Party may terminate the Services in accordance with the Order by written notice.

Either Party may terminate the Order by written notice with immediate effect in case the other Party is in a material breach of these terms of the service and has not rectified such breach within 14 days of a written notice.

11. Confidentiality

Each Party shall keep in confidence all materials and information received from the other Party marked as confidential or which should be understood to be confidential, including but not limited to, technical, commercial and financial information regarding the business of the other Party. A Party shall not have the right to use confidential information for any other purposes than for performing its obligations under the Order. Confidentiality obligations pursuant to this section shall survive any termination of the Services.

12. Force Majeure

Neither Party shall be liable for any default or delay in the performance of its obligations to the extent that such default or delay is caused by an event or a series of related events outside the reasonable control of the affected Party and which could not have been prevented by commercially reasonable precautions, including but not limited to failures of the internet, power failures, fire, flood, earthquake, elements of nature, acts of war, terrorism, riots, epidemic, civil disorders, rebellions, revolutions, sabotage, strikes and labor disputes.

If either Party suspends their obligations due to such force majeure event, the Party invoking to the Force Majeure Event is excused from its obligations as long as and to the extent such force majeure event continues to impact the obligations and said Party continues to use commercially reasonable efforts to recommence performance.

13. General

No assignment. Neither Party may assign the Order either wholly or in part without the written consent of the other party. However, Upseller is entitled to transfer the Order in connection with the transfer of its business operations.

Reference right. During the Term, Upseller may include Customer’s name and logo in Upseller´s website, press releases, promotional and sales literature, and lists of customers. Content of written reference case descriptions must be agreed together between the Parties.

No partnership. No agency, partnership, joint venture, or employment is created as a result of the Order.

Entire agreement and severability. This Order and its appendices establish the entire understanding between the parties concerning the subject matter thereof. If any of the provisions of the Order are deemed invalid or unenforceable, all other provisions shall remain in full force and effect.

Applicable law. The Order shall be governed by the laws of Finland, save for its choice of law provisions.

Dispute resolution. Any disputes arising out of the Order shall be finally resolved in arbitration in accordance with the Rules of Arbitration of the Central Chamber of Commerce of Finland. The place of arbitration shall be Helsinki.