Lucify Embeddable Content General Terms and Conditions (“Terms”)

1. Scope of the terms; parties

   These Terms apply to Agreement(s) (defined in Section 2) on the provision of the Service and/or the Professional Services (both defined in Section 2) by Lucify Oy, a Finnish company with Business ID number 2721754-1 (“Supplier”) to its customer (“Customer”). The Supplier and the Customer are also hereinafter referred to each as a “Party” and together as the ”Parties”.

2. Definitions

   The following terms shall have the meanings explained below, unless otherwise agreed in the Agreement:

   1. “Advertisement” means any third party advertisements, product information, campaigns or other third party content, such as metadata relating to such advertisements.
   2. “Agreement” means an agreement in which the Parties agree on the provision of the Service and/or the Professional Services to the Customer, such as (i) an agreement signed by the Parties, (ii) a Customer agreeing on this agreement by using the Supplier's Embeddable Content, (iii) the Supplier’s offer accepted by the Customer or (iiii) the Customer’s order accepted by the Supplier e.g. by commencing the deliveries.
   3. ”Customer Data” means any (i) data, code or other content provided by the Customer to the Supplier for the purpose of creation of the Embeddable Content, (ii) information on the Customer’s users (such as the users’ email addresses, usernames and names) and (iii) log data and Traffic Data and other information on the users of the Customer’s electronic environments (such as web pages or other internal and external electronic environments) that is accessible to the Supplier when the Embeddable Content is used by the Customer.
   4. “Documentation” means usage manuals and other instructions in written or electronic form that are supplied by the Supplier to the Customer, but excluding any marketing materials.
   5. “Embeddable Content” means the interactive content agreed in the Agreement.
   6. “Error” means an error, which can be reproduced and which causes the Service not function materially as described in the service description Documentation.
   7. “Intellectual Property Rights” means patents, inventions, trademarks, domain names, rights in know-how, trade secrets, copyrights, database rights, rights related to copyrights and any other intellectual property rights, whether registered or not, and including without limitation the right to amend and further develop the objects of those rights and the right to assign the rights to third parties.
   8. ”Service” means the Customer’s right to receive and use the Embeddable Content by using an embed code provided by the Supplier. The Service is described in the Documentation, and it includes the modifications, enhancements, new versions and updates of the Service.
   9. “Professional Service(s)” means the professional services agreed to be performed by the Supplier, such as configuration, consultation, support or training.
   10. “Support Hours” means Finnish business hours Monday to Friday 09 a.m.-4 p.m. excluding national holidays in Finland.
   11. “Support Service” is defined in Section 6.
   12. ”Statistical Information” means the Customer Data, as such or as processed and/or combined with other data.
   13. ”System” means the system(s) used by the Supplier to provide the Service, and it includes the modifications, enhancements, new versions and updates of the System.
   14. “Third Countries” is defined in Section 5.
   15. “Traffic Data” is defined in Section 7.
3. Duties
   1. The Supplier may make changes to the Embeddable Content, the System and the technical means to provide the Service at any time.
   2. The Customer warrants that i) it is an entity (e.g. company, partnership or corporation) and not a private individual and that ii) the Customer has not acquired the usage right to the Service as a consumer or otherwise for the purpose of private household. The Customer warrants that the person who concludes the Agreement on the Customer’s behalf is authorized to conclude the Agreement on the Customer’s behalf.
   3. Each Party shall contribute to the provision of the Service and the Professional Services with respect to factors under the command or control of the Party.
   4. The Customer shall, at its own expense, acquire the equipment, connections, data transfer services, hardware, software and information security services that are required for its use of the Service and the Embeddable Content according to the compatibility requirements set by the Supplier from time to time.
4. Terms of use and related liabilities
   1. The Customer is granted a non-exclusive and non-transferable right during the term of the Agreement to display the Embeddable Content on its web pages and on its other internal and external electronic environments (such as its demonstration environments to display to its prospective clients or in the Customer’s intranet) in accordance with the Documentation.
   2. The Customer may use the Documentation to support the granted use of the Embeddable Content.
   3. Subject to other terms of use in this Section 4, the Customer may use the Embeddable Content only for lawful purposes under applicable law. In case the Supplier deems that the Customer’s purpose(s) of use of the Embeddable Content is/are very exceptional, the Supplier has the rights set out in the Section 14.3.
   4. The Customer’s users shall maintain user names and passwords diligently and they may not be disclosed to any third parties. The Customer is responsible for the use of its users’ user names and passwords as widely as the law allows.
   5. The Supplier is not liable for the correctness or lawfulness of the Advertisements or of third party information, data or material that is used by the Supplier to produce the Embeddable Content.
   6. The Embeddable Content can include analytics codes (such as Google Analytics) that transmit analytics data to third parties according to the terms and conditions of the third parties. The Supplier is not liable for the acts of these third parties.
5. Customer data and statistical information
   1. The Customer shall ensure that no Customer Data violates applicable laws or rights of third parties and shall act also otherwise carefully in the selection of the Customer Data. The Customer warrants that it has the right to provide the Customer Data to the Supplier and that the Supplier and its subcontractors are entitled to process the Customer Data lawfully. The Supplier may refuse to use any Customer Data that the Supplier suspects is in violation of these Terms or to satisfy a court or authority request based on mandatory law.
   2. The Customer Data may be stored and processed by the Supplier and its subcontractors also in areas outside the European Union and the European Economic Area (“Third Countries”) and the Embeddable Content may be provided from Third Countries. The Customer shall ensure that it has gained the necessary consents or agreements from its users and other persons whose personal data or location data is included in the Customer Data, in order for the Supplier and its subcontractors to lawfully process their personal data and location data as set out in the Agreement and in the Third Countries.
   3. During and after the term of the Agreement, the Supplier has a permanent, non-revocable, transferable, sublicensable and free of charge right to produce the Statistical Information and to use, disclose and publish the Statistical Information for any and all purposes such as for further developing and managing the Service, the Embeddable Content and the Professional Services. The Statistical Information is disclosed by the Supplier in a form that no individual person’s or the Customer’s identity can be identified, but however the Supplier may display the copyright and proprietary notices of the Statistical Information and disclose who is the author of the Statistical Information.
6. Support service
   1. If the Customer pays a price for the Service, the Customer is entitled to the Support Service.
   2. The Support Service includes that the Customer may report Errors to the Supplier’s Help Desk email addresses, and/or telephone numbers and/or through the Supplier’s electronic support system, according to the Supplier’s Support Service description valid from time to time. The Help Desk will serve during the Supplier’s service hours. If the service hours are not defined in the Supplier’s Support Service description, the service hours are the Support Hours. The Support Service may be contacted only by the Customer’s named main users, who are trained in the use of the Service.
   3. As part of the Support Service, the Supplier will use commercially reasonable efforts to correct the Errors reported by the Customer. The Supplier cannot, however, warrant that each and every Error can be corrected or that the Errors can be corrected within a certain time period. The Supplier may prioritize Errors taking into account their severity and effect.
   4. The support Service does not cover correction of Errors and the Supplier is not be liable for Errors that are caused by: (a) faulty use, (b) failure to follow the terms of the Agreement or usage instructions; (c) a modification or repair performed by anyone else than the Supplier; (d) any system, product or service not provided by the Supplier or (e) faulty form or content of the Customer Data.
7. Traffic data and cookies
   1. The Service requires the use of cookies and has embedded functionalities, which analyze, download and save information arising out of users’ use of the Service and the Embeddable Content including but not limited to browsing and of the Embeddable Content, the page wherefrom the user logged into the Customer’s electronic environment and information on the user’s device, browser and IP address. During and after the term of the Agreement, the Supplier has a permanent, non-revocable, transferable, sublicensable and free of charge right (unless otherwise prescribed by mandatory law) to access, save, copy, analyze, amend and use such information in the development of the Service and other products and services.
   2. The “Traffic Data” means information associated with a legal or natural person used to transmit a message. The Traffic data is processed in circumstances explicitly allowed by law and in the following circumstances:

      (a) to the extent required for transmitting communications, the provision and usage of the Service and the Professional Services and taking care of information security. For this purpose the following types of Traffic Data is processed: IP address, cookies, user ID, and information on browsing and using the Service and the Embeddable Content, as long as it is necessary to use the said Traffic Data for the said purposes;

      (b) for technical development of the Service and the Professional Services. For this purpose the following types of Traffic Data is processed: IP address, cookies, user ID, and information on browsing and using the Service and the Embeddable Content, as long as it is necessary to use the said Traffic Data for the said purposes;

      (c) automatically for statistical analysis, as the analysis cannot be made by any other means without undue difficulty. No individual natural person can be identified in the analysis;

      (d) for the purpose of marketing the Supplier’s services, to such an extent and for such a period of time as the marketing requires. By approving these Terms, the Customer gives the consent to this on behalf of itself and its users. The Customer has the opportunity to cancel this consent at any time by notifying the Supplier in writing or by email;

      (e) for detecting, preventing or investigating any non-paying use of fee-based services or similar cases of misuse;

      (f) in order to define prices and billing. For this purpose the following types of Traffic Data is processed: IP address, user ID, and information on browsing and using the Service and the Embeddable Content, as long as it is necessary to use the said Traffic Data for the said purposes; and

      (g) if necessary for the purpose of detecting, preventing or investigating a technical fault or error in the transmission of communications.

8. Acceptance

   The delivery of the Service and the Professional Services is deemed accepted in case: (i) the Customer does not report deviations from the written specifications of the Service or the Professional Services to the Supplier within fourteen (14) days from provision of the Service or the Professional Service, (ii) the Customer notifies it has accepted the Service or the or the Professional Services, (iii) the Supplier has corrected the deviations from the written specifications of the Service or the or the Professional Services reported by the Customer during such time period, or (iv) any result of the Service or the Professional Services is taken into use, whichever of these (i through iv) is the earliest. The Supplier’s liability for the deviations is limited to correction of the deviation or to repeating the Service or the Professional Service.

9. Intellectual property rights

   Title and any and all Intellectual Property Rights in and to the Service, the Embeddable Content (excluding the Customer Data in the form provided by the Customer to the Supplier), the System, the Professional Services, the results of the Service and the Professional Services, and the Documentation, and any copies, modifications, translations, amendments and derivatives thereof are and shall belong to the Supplier or its licensors.

10. Confidentiality
    1. Each Party (i) shall keep in confidence all information of the other Party of confidential nature or marked as confidential (together referred to as “Confidential Information”); (ii) may not disclose the other Party’s Confidential Information to any third party and (ii) may not use the other Party’s Confidential Information for any purpose other than for fulfilling its obligations and using its rights arising out of the Agreement. The structure of the Service and the System, and their underlying ideas and the Documentation are always the Supplier’s Confidential Information. The Supplier may disclose the Customer’s Confidential Information to its subcontractors for the fulfillment of the purpose of the Agreement provided that the subcontractors have committed to a confidentiality provision substantially similar as herein.
    2. The foregoing obligations shall not apply to information: (i) which at the time of the disclosure is or later becomes generally available or otherwise public through no fault of the receiving Party; (ii) which was in the possession or knowledge of the receiving Party prior to receipt of the same from the other Party; (iii) which the receiving Party receives from a third party; (iv) which the receiving Party has independently developed without using the other Party’s Confidential Information; or (v) which must be disclosed based on law or an order by an authority or court. Unauthorized disclosures of Confidential Information that are caused by security breaches or other similar causes are not regarded as a breach of this confidentiality obligation. The Supplier shall have the right to utilize the general expertize and skills that its and its subcontractors’ personnel have learnt in conjunction with the Agreement.
11. Liability
    1. Arising out of or related to the Agreement, the Supplier shall have no liability for any: (i) indirect damages such as loss of profit, revenue or savings, or for damages payable to third parties, or (ii) loss or alteration of data or for any damages incurred as a result thereof, or for cover purchase.
    2. Supplier’s aggregate maximum liability arising out of or related to the Agreement for any causes of action occurred during any contract year (i.e. one year from the date the Agreement became in force and each one year thereafter), and including the amounts of possible price returns or reductions, shall not exceed the amount of the prices (without value added tax and other governmental charges) paid by the Customer to the Supplier for the said contract year. The limitations of liability shall not apply to damages caused by gross negligence or intentional act.
12. Termination
    1. Termination at will
       Either Party may terminate the Agreement by giving the other Party a two (2) months’ prior written notice.
    2. Termination for Cause
       1. Either Party may terminate the Agreement with immediate effect by giving the other Party a written notice if:

          (a) the other Party commits a material breach of the Agreement and fails to remedy the same within thirty (30) days after receipt of a written demand from the other Party to cure the breach; or

          (b) the other Party is declared bankrupt, placed into liquidation or its financial situation has otherwise materially deteriorated, so that it becomes evident that the other Party will not be able to fulfill its obligations under the Agreement.

    3. Termination for Specific Causes
       If the Supplier deems that the Customer’s purpose(s) of use of the Embeddable Content and/or the Service is/are very exceptional at the Supplier’s discretion, the Supplier may terminate the Agreement with immediate effect by giving the Customer a written notice explaining the very exceptional circumstances (such as circumstances similar to the Customer using the Embeddable Content for weapons of mass destruction development or use.)
    4. Effects of Termination
       Upon termination of the Agreement each Party shall return to the other Party any tangible property representing Confidential Information of the other Party and erase/delete any other Confidential Information of the other Party held by it in electronic form. However, unless the Parties agree on such Service in writing, the Supplier does not return the Customer Data to the Customer. The Supplier is not obliged to store the Customer Data after the termination of the Agreement but the Supplier may continue to store the Customer Data.
13. Miscellaneous
    1. Assignment and subcontractors
       Either Party may not assign the Agreement to a third party, without the prior written consent of the other Party. However, the Supplier may assign the Agreement without the consent of the Customer to a transferee, when assigning the ownership of the Supplier’s business assets or part thereof, or to the Supplier’s affiliate, and, for the avoidance of doubt, in merger or demerger. The Supplier may subcontract its duties. The Supplier shall be liable for the work of its subcontractors as for work of its own.
    2. Survival
       Upon termination of the Agreement, the provisions relating to Intellectual Property Rights, confidentiality, limitations of liability, recruitment restriction and this Section “Miscellaneous” shall survive. Also, any other provisions which by their nature or wording contemplate effectiveness beyond the termination of the Agreement, shall survive the termination.
    3. Severability
       If any provision of the Agreement is found to be contrary to law, the other provisions of the Agreement will remain in force. The invalid provision shall be amended by the Parties, and the Agreement shall be interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law.
    4. Waiver and Amendment
       1. No change of the Agreement shall be binding unless made in writing and signed by duly authorized representatives of each Party. A failure by a Party to use any of its rights based on the Agreement shall not be construed as a waiver of such right.
       2. However, the Supplier may amend these Terms by notifying the Customer of the amendment ninety (90) days prior to the effective date of the amendment. If the Customer does not accept the amended Terms, the Customer may terminate the Agreement to end on the effective date of the amendment. The Customer shall make the notice of termination latest within thirty (30) days of the date of the Supplier’s amendment notice. If the Supplier does not receive such notice of termination during such time period, the amendment becomes into force on the effective date of the amendment.
    5. Force majeure
       A Party shall not be liable for delays, defects or damages caused by factors due to an impediment beyond his control, which he cannot reasonably be deemed to have taken into account at the time of the conclusion of the Agreement, and the consequences of which he could not reasonably have avoided or overcome. Such events of force majeure shall include, without being limited to, natural disasters, breakdown of electricity or networks, security attacks, failures in Internet or other public networks or data traffic, strikes and other labor disputes or acts of government. A labor dispute shall be considered a force majeure event also when a Party is the target or a party to such an action. The force majeure events suffered by subcontractors are also be deemed as force majeure events. Without limiting the foregoing, the Supplier is never liable if the Embedded Content is changed due to third party malicious actions, such as security attacks.
    6. Governing Law and Dispute Settlement
       1. The Agreement shall be construed in accordance with the laws of Finland, excluding its choice of law provisions and the UN Convention on Contracts for the International Sale of Goods.
       2. 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 Rules for Expedited Arbitration of the Finland Chamber of Commerce. The arbitration shall take place in Helsinki, Finland, and shall be conducted in English. The arbitrator shall have at least a master’s degree in law from a Finnish university. Notwithstanding the above, each Party shall be entitled to seek equitable and/or injunctive relief to prevent or stop a violation of the terms and conditions in the Agreement and the Supplier may take legal actions concerning overdue payments, in any court of law.