TERMS AND CONDITIONS

for Frosmo Optimizer Service

Thank you for your interest in the Frosmo Optimizer service. If you choose to integrate our Javascript your use of the Frosmo Social Optimizer service and the related Javascript is subject to the terms of a legal agreement between you (hereafter "Customer") and Frosmo Ltd., Business ID: 2228375-0, a Finnish limited liability company duly organized and validly existing under the laws of Finland and having its principal place of business at Erottajankatu 15-17, 00130 Helsinki, Finland (hereinafter "Frosmo"). 

1. APPLICABILITY

These TERMS AND CONDITIONS for Frosmo Social Optimizer Service (hereinafter "Conditions") shall be applied to all use of the Service.

Using the Optimizer service requires the Customer to register to the Frosmo service. A prerequisite for the registration is that the Customer undertakes to comply with these Conditions and with other instructions informed by Frosmo from time to time. A binding agreement is entered into by and between Frosmo and the Customer when the Customer has in connection with the registration accepted these Conditions

2. DEFINITIONS

"Javascript" means an application programming interface provided by Frosmo to the Customer stricktly for the purposes of enabling the Customer to integrate the agreed number of Customer Applications of the Customer's network with the Service.

Customer Application shall mean the web service included in the Customer's network and designated in connection with the Customer's registration.

"Customer Data" means all electronic data or information submitted by Customer to the Service.

"Party" / "Parties" means Frosmo and/or the Customer.

"Service" means the free version of the Frosmo Optimizer service which is an online, web-based application and/or web-based platform for the purposes of gathering and analyzing information regarding Customer Applications. The features of this free version are in the sole discretion of Frosmo and may vary from time to time. The Customer can upgrade to a chargeable premium version at any time by contacting Frosmo (subject to a separate agreement).

3. RIGHTS AND OBLIGATIONS OF CUSTOMER

By registering for the Service and accepting these Conditions the Customer receives the right to use the Service for its own internal business purposes and shall not make use of the Services on behalf of or for the benefit of any third party.

The Customer agrees to use the Service in accordance with all laws, statutes, these Conditions, good practice and any instructions included in the Service. In the event of abuse Frosmo may trace the Customer, deactivate the Customer's identifiers, otherwise restrict the Customer's access to the Service and possibly initiate legal proceedings.

The Customer shall remain liable for the Customer's use of the Service and shall be liable for all activity that occurs under the Customer's user name and password. The Customer must immediately notify Frosmo of any abuses or any suspicion thereof.

The Customer undertakes not to send, transmit or store, either in or through the Service, any material that is contrary to good practice or law.

The Customer shall be responsible for procuring the terminal equipment, software and data communication connections that are required for using the Service. Frosmo shall not be liable for any telephone, data communications or other charges arising from the use of the Service. The equipment and software requirements related to the use of the Service shall be informed in the service descriptions concerning the Service. The Customer shall also be liable for the data security of the Customer's own equipment and for ensuring that the said equipment causes no disruption to the Service or to other users.

Frosmo shall be entitled to prevent the use of the Service where there is justified cause to suspect that the Service is being used in a manner that is contrary to these Conditions or other instructions included in the Service, or otherwise contrary to good practice or law. The Customer shall also be liable to compensate Frosmo for any damage arising from use that is contrary to the Conditions, other instructions included in the Service or law.

4. REGISTRATION

You represent that you have full power, capacity and authority to accept these Conditions. If you are accepting on behalf of your employer or another entity, you represent that you have full legal authority to bind your employer or such entity to these Conditions. If you don't have the legal authority to bind, please ensure that an authorized person from your entity consents to and accepts these Conditions.

At those instances when registration is required, the registration process has been completed when Frosmo has given the Customer access to the Service. Any failure or refusal of registration will be notified either at the time of registration or in some other way.

The Customer agrees to supply Frosmo with the accurate personal and other data that may be necessary for using the Service and to notify if changes occur in these data. Frosmo shall process personal data in accordance with personal data legislation as specified in the description of data file. Frosmo shall be entitled to deactivate the Customer's user name and to prevent the use of the Service in the event that the information supplied by the Customer is incorrect or otherwise misleading.

The Customer must keep the username and password secret and ensure that these are not disclosed to third parties. The Customer is liable for all use that occurs under the Customer's user name and password.
The Customer must notify Frosmo immediately if the Customer has cause to suspect that the username or password has been disclosed to third parties.

Frosmo is entitled to change a user name and password or to require the Customer to do so where this is necessary for technical or data security reasons or for some other reason related to the organisation of the Service.

Frosmo shall be free to delete any user name that has not been used in the Service during the preceding six (6) months.

5. USE OF SERVICE

The Service shall be used for the Customer Application(s) designated in connection with the registration and the Service may be accessed by no more than the specified Customer Applications. The Service is to be used for the benefit of the designated Customer Applications only and cannot be shared or used by other applications.

Frosmo is committed to high level of quality and industry standards regarding the Service. Accordingly, Frosmo endeavours to develop the Service pursuant to its global production development plans and the Service shall correspondingly benefit from the said development and enhancements. The Customer may provide reasonable requests and/or proposals to Frosmo regarding the future development of the Service.
For the sake of clarity it is hereby agreed that Frosmo has no obligation to develop the Service as requested and/or proposed by the Customer and the future development of the Service is at the sole discretion of Frosmo.

Frosmo shall use commercially reasonable efforts to make the Service available to the Customer twenty-four (24) hours a day, seven days a week, excluding (i) the necessary maintenance breaks, and (ii) any unavailability caused by computer, telecommunications, Internet service provider or hosting facility failures or delays involving hardware, software or power systems not within Frosmo's possession or reasonable control. However, Frosmo shall not give any representations or warranties regarding the availability of the Service and shall adopt any liability of any unavailability of the Service.

Frosmo hereby grants the Customer all necessary rights by way of license to use the software (API) and Service of Frosmo in accordance with these Conditions but not further or otherwise.

By submitting Customer Data to the Service Customer shall: (i) act as data controller under applicable data protection laws and regulations,
(ii) have sole responsibility for the accuracy, quality, integrity, legality, reliability and relevance of Customer Data and of the means by which it acquired Customer Data, (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify Frosmo promptly of any such unauthorized access or use, (iv) use the Services only in accordance with the instructions provided by Frosmo and applicable laws, and (v) be solely responsible for all of its own actions and/or omission taken in response or based on the information received as a result of the Customer's use of the Service.

Except as expressly permitted by these Conditions, the Customer shall not attempt to obtain access to or interfere with any programs or data of Frosmo or of any other customer of Frosmo and shall indemnify Frosmo against any loss, damage or liability which Frosmo may sustain or incur as a consequence of the Customer failing to comply with such undertaking.

6. LIABILITY OF FROSMO

Frosmo shall endeavor to provide a Service of possibly high quality.
However, as the Service is free of charge Frosmo shall offer no guarantees of functionality, continuity, freedom from fault, modification, discontinuation, or accuracy and reliability of information contents as regards the Service or any part thereof.

Frosmo shall endeavor to ensure that the Service fulfills the normal data security requirements. However, the Customer shall attend to data security of the Customer's own equipment, and Frosmo shall not be liable for any damage arising for the Customer or for a third party from data security risks such as computer viruses, worms, malwares or other harmful elements.

To the maximum extent permitted by applicable law, Frosmo shall have no liability for any direct or indirect damages caused to the Customer by the Service or related to the Service.

Frosmo can at any time adapt or close the Service or its part without a separate notice. In that case Frosmo shall not be liable for the consequences caused to the Customer.

The Service may also include links to websites maintained by third parties and to products or services offered by such parties. Frosmo shall not be liable for the activity of such third parties, nor shall Frosmo be a party to any agreement between the Customer and a third party.

Except as expressly provided herein, Frosmo excludes all warranties, representations, terms, conditions or other commitments of any kind, whether express or implied terms, statutory or otherwise, and each party specifically disclaims all implied warranties, including (without limitation) any warranties, representations, terms, conditions or other commitments of merchantability or fitness for a particular purpose or of satisfactory quality, in each case, to the maximum extent permitted by applicable law.

7. OWNERSHIP OF DATA

The Customer's Data shall be and shall remain the property of the Customer. Frosmo undertakes to treat as confidential and keep secret all information contained or embodied in the Customer's Data.

Frosmo may use the Customer Data for the compilation of statistics and benchmarking information provided that Frosmo maintains the confidentiality of Customer Data (i.e. this information is anonymos in a sence that neither the Customer nor the Customer Application can be identified from the said statistics and/or benchmark information).

8. DATA PROTECTION

The Customer hereby notifies Frosmo that the Customer's Data contains or may contain personal data as defined in the applicable data protection legislation (hereinafter the "Customer's Personal Data") and warrants to Frosmo that the Customer is and will be in full compliance with applicable legislation at all times during the continuance of the Agreement.

The Customer warrants and undertakes to Frosmo that:

(a) The Customer's Personal Data has been obtained and processed (in so far as the Customer's Personal Data has been processed) lawfully

(b) The Services to be provided by Frosmo under these Conditions will be entirely consistent with and appropriate to the specified and lawful purposes for which the Customer is engaged.

(c) The Customer has not until now and will not during the continuance of it use of the Service use or disclose the Customer's Personal Data or any part thereof in a manner incompatible with applicable legislation.

(d) The Customer's Personal Data is accurate and the Customer shall keep the Customer's Personal Data fully up to date at all times during the continuance of Customer's use of the Service.

(e) The Customer will promptly delete the Customer's Personal Data or any part or parts thereof as soon as it or they shall no longer be required.

(f) The Customer will be responsible for downloading or making copies of the Customer's Personal Data or any part or parts thereof to provide access under applicable legislation.

The Customer shall indemnify Frosmo against any loss or damage, which Frosmo may sustain or incur as a result of any breach by the Customer of the provisions of this Section 8.

9. INTELLECTUAL PROPERTY RIGHTS

Frosmo (or its licensors) are the exclusive holders of all rights in and to the Service, the API and all elements and parts thereof.
Notwithstanding anything contrary in this Agreement, all rights, title and interest, including any and all intellectual property rights such as copyright, trademarks, patents, know-how and any other rights, in and related to the Service, the API and thereto connected software and technology, any written material thereof and all concepts and ideas related thereto and any adaptations, modifications and derivative works thereof, including, without limitation, any elements provided by the Customer as a result of its feedback in connection with the Agreement, if any, are, and shall at all times remain, the sole and exclusive property of Frosmo.

The Customer shall not be entitled to make any changes to the Service (including the API, software and technology) or any parts thereof.

10. INDEMNIFICATION

The Customer shall indemnify Frosmo against any claim by any third party for alleged infringement of any copyright or other intellectual property rights which arises as a result of the storage or processing of any of the Customer's Data on the Service provided that the Customer is given immediate and complete control of any such claim, that Frosmo does not prejudice the Customer's defense of such claim and that Frosmo gives the Customer all reasonable assistance with such claim.

11. TERMINATION

Either Party shall have the right at any time by giving notice in writing to the other Party to terminate the Agreement forthwith in the following events (i) if the other Party commits a substantial breach of its obligations under this Agreement and if such breach is not remedied within thirty (30) days from the date of the receipt of the said written notice from the other Party identifying the breach and requiring its remedy; or (ii) if the other Party shall enter into liquidation, whether compulsory or voluntary, other than for the purpose of amalgamation or reconstruction or shall compound with its creditors or have a receiver appointed of all or any of its assets.

Upon termination of the Agreement for any cause (i) the Customer shall immediately discontinue any and all use of the Service (including thereto connected software and API); and (iii) both Parties shall return to the other Party all materials of the other Party.

12. FORCE MAJEURE

Neither of the Parties shall be liable for any failure or delay in performance hereunder due to any cause beyond its reasonable control which cause occur after the date of Customer's registration and were not reasonably foreseeable at that time including, but not limited to, war, fire, governmental acts, natural disasters, epidemics and strike or lock-out. In case the performance of its obligations hereunder becomes impossible or delays due to any cause mentioned above, the Party so affected shall immediately notify the other Party of the occurrence of such cause and use its best efforts to remove or overcome such cause of non-performance.

In the event that such non-performance by either Party continues for the period longer than three (3) months, either Party shall have the right to terminate the agreement between the Parties with immediate effect without any liability towards the other Party.

13. GOVERNING LAW AND JURISDICTION

The Conditions and all use of the Service shall be 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 between the Parties, or the breach, termination or validity thereof shall be finally settled by the District Court of Helsinki as the first instance.

14. FINAL PROVISIONS

14.1 Notices

All notices and communications under this Agreement shall be in writing and sent to the recipient by hand, prepaid post (express
courier) email or facsimile

Without limiting any other means by which a Party may be able to prove that a notice has been received by another Party, a notice will be deemed to be duly received:

(i) if delivered by hand, when left at the address of the recipient, receipt confirmed;

(ii) if sent by pre-paid registered post, five business days (if posted within one country to an address in the same country) or 10 business days (if posted from one country to another) after the date of posting;

(iii) if sent by email, on the business day when receipt by the sender of an acknowledgement that the email was received by the recipient was sent; or

(iv) if sent by facsimile, on the business day when receipt by the sender of an acknowledgement or transmission report generated by the machine from which the facsimile was sent, indicating that the facsimile was sent in its entirety to the recipient's facsimile number.

However, if a notice is received on a day which is not a business day, or is received after 5.00 pm on any business day, that notice will be deemed to be duly received at 9.00 am on the first business day after that day.

14.2 Entire Agreement

The Conditions contains the entire agreement between the Parties and supersedes all oral statements and prior writings relating to the subject matter hereof.

14.3 Amendments

14.4 Frosmo is entitled to amend these Conditions and any other instructions included in the Service after informing of the amendments in the Service in good time before the amendments take effect. A Customer who does not approve any amendment of terms must cease using the Service. No Waiver

Failure by any Party at any time or times to require performance of any provision of the Conditions shall in no manner affect its right to enforce the same, and waiver by any Party of any breach of any provision of the Agreement shall not be construed to be a waiver by such Party of any succeeding breach of such provision or waiver by such Party of any breach of any other provision hereof.

14.5 Assignment

The Conditions may be assigned by Frosmo and will inure to the benefit of Frosmo, its successors and assigns.

14.6 Headings

The descriptive headings of the Agreement are inserted for convenience only and do not constitute a part of the Agreement.

Copyright  Frosmo Ltd. 2011. All rights reserved.