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Terms of Service

 

Thank you for signing up for a subscription with Happeo. (“Happeo”, “we” or “us”). By placing an order, clicking to accept this Agreement, or using or accessing any Happeo Service or related services, you agree to all the terms and conditions of this Terms of Service Agreement (“Agreement”). If you are using a Happeo Service or related services on behalf of a company or other entity, then “Customer” or “you” means that entity, and you are binding that entity to this Agreement. You represent and warrant that you have the legal power and authority to enter into this Agreement and that, if the Customer is an entity, this Agreement and each Order Form is entered into by an employee or agent with all necessary authority to bind that entity to this Agreement. Please note that we may modify this Agreement as further described in the amendments section below, so you should make sure to check this page from time to time. This Agreement includes any Order Forms and Service-Specific Terms (as defined below) as well as any policies or exhibits linked to or referenced herein. 

This Agreement is effective as of January 14, 2018. Prior Terms of Service are available here.

OVERVIEW OF THE HAPPEO PLATFORM

Happeo is a digital workplace platform empowering internal communicators to drive growth from within by overcoming silos and bringing together a diverse workforce across generations, locations and time zones. The platform combines intranet, collaboration and social networking tools into one unified solution.

The Customer wishes to obtain the right to use the Service and to benefit from the services provided by Happeo under the following terms and conditions.

1. DEFINITIONS

1.1 “Active Use” refers to data stored within the Happeo Service under a current Order Form or within 6 months if expiration of the most recent Order Form.

1.2 “Add-On” means integrations, applications, and other add-ons that are used with the Happeo service.

1.3 “Affiliate” means any entity which is controlled by, in control of, or is under common control with a party to this Contract, where “control” means either the power to direct the management or affairs of the entity or ownership of 50% or more of the voting securities of the entity.

1.4 “Aggregate/Anonymous Data” means: (i) data generated by aggregating Customer Data with other data so that results are non-personally identifiable with respect to Customer; and (ii) learnings, logs, and data regarding use of the Happeo Service.

1.5 “Authorized Users” means Customer’s employees and contractors (such as Google resellers or management consultants) who are acting for Customer’s benefit and on its behalf.

1.6 “Confidential Information” means for example code, inventions, know-how, product plans, inventions, and technical and financial information exchanged under this Contract, that is identified as confidential at the time of disclosure or should reasonably be considered confidential based on the circumstances surrounding the disclosure and the nature of the information disclosed.

1.7 “Content” means text, images, videos or other content uploaded or integrated with the Happeo Service selected by for use by the Customer.

1.8 “Contract” means this agreement document and its annexes, appendices, schedules and amendments.

1.9 “Customer Data” means: (i) Content; (ii) Submitted Data; and (iii) Visitor Data.

1.10 “Customer's Administrators” means users that have been provided with administrator access in Happeo or inherited from GSuite. Administrators have additional user permissions and can provide and revoke access to the Happeo Service.

1.11 “Documentation” means the end user technical documentation created by Happeo and provided with the Happeo Service, currently available in the Knowledge Base and Developer Docs at help.happeo.com.

1.12 “Service” means the specific proprietary software-as-a-service product(s) of Happeo specified in Customer’s Order Form, including any related Happeo Documentation, and excluding any Third-Party Products.

1.13 “Technology” means the Happeo Service, any and all related or underlying documentation, technology, code, know-how, logos and templates (including in any reports or output obtained from the Happeo Service), anything delivered as part of support or other services, and any updates, modifications or derivative works of any of the foregoing, including as may incorporate any Feedback.

1.14 “Order Form” means any Happeo ordering documentation or online sign-up or subscription flow that references this Contract.

1.15 “Regulated Data” means: (i) any personally identifiable information (other than personal information about Authorized Users); (ii) any patient, medical, or other protected or regulated health information; or (iii) any government IDs, financial information (including bank account or payment card numbers), or any other information subject to regulation or protection under specific laws or regulations.

1.16 “Scope of Use” means the usage limits or other scope of use descriptions for the Happeo Service included in the applicable Order Form (including descriptions of packages and features) or Documentation. These include any numerical limits on Licenses or Authorized Users.

1.17 “Submitted Data” means data uploaded, inputted or otherwise submitted by Customer to the Happeo Service, including Third-Party Content.

1.18 “Subscription Term” means the initial term for the subscription to the applicable Happeo Service, as specified on Customer’s Order Form(s), and each subsequent renewal term (if any).

1.19 “Third-Party” means any party that is not the Customer, Happeo,  Customer Affiliate or Happeo subcontractor.

1.20 “Third-Party Content” means content, data or other materials that Customer provides to the Happeo Service from its third-party data providers, including through Add-Ons used by Customer.

1.21 “Third-Party Product” means any applications, integrations, software, code, online services, systems, other products, and Add-Ons not developed by Happeo.

1.22 “Third Party Request” means any Third Party requests for any information on the basis of a Freedom of Information Act. or GRPR,  or any local legal right for a Third Party to request information (personal or otherwise) that is stored in the Service .

1.23 “Licence(s)” means any users that has access to the Happeo Service assigned by the service admin via the admin panel within the Happeo service.

1.24 “Party” means either Happeo Oy or the Customer. Together they may be referred as Parties.  

1.25 “SLA(s)” Service level agreement (SLA) is a contract between a service provider (either internal or external) and the end user that defines the level of service expected from the service provider. SLAs are output-based in that their purpose is to define what the customer will receive.

1.26 “Google Account” is Google-wide username and password that can be used to access various Google products. The Google Account is a 3rd party service and has its own privacy policy and terms of service. 

1.27 “Visitor Data” is the data collected from a user when they use the Happeo service, including IP address, browser information, and/or header information.

Other terms are defined in other Sections of this Agreement or in the relevant policies, or Exhibit

2. PURPOSE
  1. The purpose of this Contract is to define the terms and conditions under which Happeo shall provide the Service to the Customer in exchange for payment for Happeo’s services.

  2. ACCOUNT REGISTRATION AND USE

    1. Customer and its Authorized Users may need to register for an Google Account in order to access the Service. Account information must be accurate, current, and complete, and will be governed by Happeo’s Privacy Policy (currently available here). Customer agrees to keep this information up-to-date so that Happeo may send notices, statements, and other information by email or through Customer’s account.

    2. Happeo may provide alternative means of accessing the Service other than Google Account.

    3. Customer must ensure that any user IDs, passwords, and other access credentials (such as API tokens) for the Happeo Service are kept strictly confidential and not shared with any unauthorized person. If any Authorized User stops working for Customer, Customer must immediately terminate that person’s access to its account and any Happeo Service.

    4. Customer will be responsible for any and all actions taken using its and its users’ accounts, passwords or access credentials. Customer must notify Happeo immediately of any breach of security or unauthorized use of its account. Accounts are granted to specific Customers and must not be shared with others.

  3. ACCESS TO THE SERVICE

    1. Happeo grants access to the Authorised Users of the Customer, and subject to compliance with this Contract, a worldwide, non-exclusive, non-transferable, non-sublicensable right and license during the applicable Subscription Term to access and use the Service(s) designated on Customer’s Order Form solely for Customer’s internal business purposes, but only in accordance with this Contract, the Documentation, and all applicable Scope of Use descriptions.

    2. The Happeo Service may require installation by a G-Suite admin.

    3. Customer will be responsible and liable for all Authorized Users’ use and access and their compliance with the terms and conditions of this Contract. All Authorized Users in aggregate will count towards the licenses number under the applicable Order Form.

    4. The Customer acknowledges that the Service constantly develops and evolves over time. As such Happeo at its option may make updates, bug fixes, modifications or improvements to the Happeo Service from time-to-time . Updates to this Service can be found on the Happeo blog (currently available here). Customers can also opt-in to the Happeo Customer Community Channel that will provide proactive updates about major changes to the Happeo Service.

    5. Customer must not (and must not allow any third party to: (i) rent, lease, copy, transfer, resell, sublicense, lease, time-share, or otherwise provide access to the Service to a third party (except Authorized Users);(ii) publicly disseminate information regarding the performance of the Happeo Service (which is deemed Happeo’s Confidential Information); (iii) modify or create a derivative work of the Happeo Service or any portion of it; (iv) reverse engineer, disassemble, decompile, translate, or otherwise seek to obtain or derive the source code, underlying ideas, algorithms, file formats, or non-public APIs to any Happeo Service (including Happeo Code), except to the extent expressly permitted by applicable law and then only with advance notice to Happeo; (v) access the Happeo Service for the purpose of building a competitive product or service or copying its features or user interface; (vi) use the Happeo Service for purposes of product evaluation, benchmarking, or other comparative analysis intended for publication without Happeo’s prior written consent; or (vii) remove or obscure any proprietary or other notices contained in the Happeo Service, including in any reports or output obtained from the Happeo Service.

    6. Happeo may provide Customer with access to “Alpha”, “Beta”, or other early-stage Happeo Services, integrations, or features (“Alpha and Beta Releases”), which are optional for Customer to use. This Section will apply to ”Alpha” and “Beta” Releases and supersedes any contrary provision in this Contract. Happeo may use good faith efforts in its discretion to assist Customer with Alpha and Beta Releases. Nevertheless, and without limiting the other disclaimers and limitations in this Contract, CUSTOMER AGREES THAT ANY ALPHA AND BETA RELEASES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTY, SUPPORT, MAINTENANCE, STORAGE, SLA, OR INDEMNITY OBLIGATIONS OF ANY KIND. WITH RESPECT TO ALPHA AND BETA RELEASES, CUSTOMER FURTHER ACKNOWLEDGES AND AGREES THAT ALPHA AND BETA RELEASES MAY NOT BE COMPLETE OR FULLY FUNCTIONAL AND MAY CONTAIN BUGS, ERRORS, OMISSIONS, AND OTHER PROBLEMS FOR WHICH HAPPEO WILL NOT BE RESPONSIBLE. ACCORDINGLY, ANY USE OF ALPHA AND BETA RELEASES ARE AT CUSTOMER’S SOLE RISK. Happeo makes no promises that future versions of Alpha and Beta Releases will be released or will be available under the same commercial or other terms. Happeo may terminate Customer’s right to use any Beta Releases at any time for any reason or no reason in Happeo’s sole discretion, without liability.

    7. Happeo and Customer agree that Affiliates of Customer may purchase Services from Happeo (or an Happeo Affiliate) by executing an Order Form with Happeo (or an Happeo Affiliate) that references this Contract, which is deemed to be a separate agreement. For clarification: (i) Customer or Customer Affiliates have no rights under other Customer Affiliate agreements; and (ii) breach or termination by any Customer entity or an Happeo entity of any separate agreement is not a breach or termination under any other agreement between an Happeo entity and another Customer entity.

  4. CUSTOMER OBLIGATIONS

    1. Customer agrees to obtain all necessary rights, releases, and consents to allow Customer Data to be collected, used, and disclosed in the manner contemplated by this Contract and to grant Happeo the rights set out in this Contract.

    2. Customer will use the Services in accordance with this Contract and Acceptable Use Policy (currently available here). Happeo may make new applications features or functionality for the Services available from time to time the use of which may be contingent upon Customer's agreement to additional terms.

    3. Confidential Information does not include information that: (a) the recipient of the Confidential Information already knew; (b) becomes public through no fault of the recipient; (c) was independently developed by the recipient; or (d) was rightfully given to the recipient by another party.

    4. Each party may disclose the other party's Confidential Information when required by law but only after it, if legally permissible: (a) uses commercially reasonable efforts to notify the other party; and (b) gives the other party the chance to challenge the disclosure.

    5. Customer is responsible for: (a) maintaining the confidentiality of the password and Admin Account(s); (b) designating those individuals who are authorized to access the Admin Account(s); and (c) ensuring that all activities that occur in connection with the Admin Account(s) comply with the Terms. Customer agrees that Happeo responsibilities do not extend to the internal management or administration of the Services for Customer and that Happeo is merely a data-processor.

    6. The Customer must not take any action that would cause Happeo, the Service to become subject to any third-party terms (including open source license terms). Customer represents and warrants the collection, use, and disclosure of Customer Data will not violate any third-party rights, including intellectual property, privacy and publicity rights. If Customer receives any take down requests or infringement notices related to Customer Data or its use of Third-Party Products it must promptly: (a) stop using the related item with the Happeo Service; and (b) notify Happeo. If Happeo receives any take down requests or infringement notices related to Customer Data or Customer’s use of Third-Party Products, Happeo may respond in accordance with its policies, and will notify and consult with the Customer on next steps.

    7. Customer's Administrators may have the ability to access, monitor, use, or disclose data available to End Users within the End User Accounts. Customer will obtain and maintain all required consents from End Users to allow: (i) Customer's access, monitoring, use and disclosure of this data and Happeo providing Customer with the ability to do so and (ii) Happeo to provide the Services.

    8. Customer will use commercially reasonable efforts to prevent unauthorized use of the Services' and to terminate any unauthorized use. Customer will promptly notify Happeo of any unauthorized use of, or access to, the Services of which it becomes aware.

    9. Customer is responsible for responding to Third Party Requests. Happeo will, to the extent allowed by law and by the terms of the Third Party Request: (a) promptly notify Customer of its receipt of a Third Party Request; (b) comply with Customer's reasonable requests regarding its efforts to oppose a Third Party Request; and (c) provide Customer with the information or tools required for Customer to respond to the Third Party Request. Customer will first seek to obtain the information required to respond to the Third Party Request on its own, and will contact Happeo only if it cannot reasonably obtain such information.

  5. CUSTOMER DATA

    1. Rights in Customer Data. As between the parties, Customer retains all right, title, and interest (including any intellectual property rights) in and to the Customer Data (excluding any Happeo Technology). Customer hereby grants Happeo a non-exclusive, worldwide, royalty-free right and license to collect, use, copy, store, transmit, modify, and create derivative works of the Customer Data solely to the extent necessary to provide the Happeo Service and related services to Customer and as set out in Section 5.2 (Aggregate/Anonymous Data). For Content, this includes the right to publicly display and perform Content (including derivative works and modifications) as directed by Customer through the Happeo Service.

    2. Non-Happeo Products and Customer Data. If Customer installs or enables Non-Happeo products for user with the Happeo Service, the Customer acknowledges that providers of those Non-Happeo Products may have access to Customer Data in connection with the interoperation and support of such Non-Happeo products with the Happeo Service. To the extent the Customer authorizes the access or transmission of Customer Data through a Non-Happeo product, Happeo will not be responsible for any use, disclosure, modification or deletion of such Customer Data.  

    3. Aggregate/Anonymous Data. Customer agrees that Happeo will have the right to generate Aggregate/Anonymous Data and that Aggregate/Anonymous Data is Happeo Technology, which Happeo may use for any business purpose during or after the term of this Contract (including without limitation to develop and improve Happeo’s products and services and to create and distribute reports and other materials). For clarity, Happeo will only disclose Aggregate/Anonymous Data externally in a de-identified (anonymous) form that does not identify Customer, or Authorized Users, and that is stripped of all persistent identifiers (such as device identifiers, IP addresses, names, addresses, and cookie IDs). Customer is not responsible for Happeo’s use of Aggregate/Anonymous Data.

    4. Happeo agrees to maintain commercially reasonable technical and organisational measures designed to secure its systems from unauthorized disclosure and modification, which are described in more detail on Happeo’s website, currently available here. Happeo’s security measures will include: (i) storing Customer Data on servers located in a physically secured location; and (ii) using firewalls, access controls, and similar security technology designed to protect Customer Data from unauthorized disclosure and modification.

    5. Happeo does not provide an archiving service. During the Subscription Term, Customer acknowledges that Happeo may delete Content no longer in Active Use. Happeo expressly disclaims all other obligations with respect to storage.

  6. PERSONAL DATA AND DATA PROTECTION

    1. Customer data and especially personal data is governed as applicable by European Union’s General Data Protection Regulation (“GDPR”). The Happeo warrants that its personal data and data protection policies are according to the GDPR. The handling and processing of Customer data and personal data are governed by Happeo Privacy Policy (Find here) and a Data Protection Agreement (“DPA”) agreed by the parties. If the Parties do not have a signed DPA then the EU Standard Data Protection Clauses (Annex 1) apply.

  7. SUPPORT SERVICES

    1. Happeo makes available web-based support through its website (currently available at help.happeo.com). Additional support services may be available to Customer upon payment of applicable fees (if any), as specified in Customer’s Order Form. Any support services are subject to this Contract and Happeo’s applicable support policies. Happeo may also provide onboarding, deployment and other services under this Contract. The scope, pricing, and other terms for these additional services will be specified in an Order Form, Order Form exhibit, or other document referencing this Contract. Customer may use anything delivered as part of these additional services internally during its Subscription Term to support its authorized use of the Happeo Service, subject to the restrictions in Section 4 (Use Rights) above applicable to the Happeo Service itself. Happeo’s ability to deliver services will depend on Customer’s reasonable and timely cooperation and the accuracy and completeness of any information from Customer needed to deliver the services. For avoidance of doubt, Customer retains ownership of any Confidential Information it provides to Happeo.

  8. SUBSCRIPTION TERM 

    1. By executing an Order Form for purchase of the Service, Customer is agreeing to pay applicable fees for the entire Subscription Term unless otherwise determined in the Order Form.

    2. Customer cannot cancel or terminate a Subscription Term except as expressly permitted by Section [12.3](Termination for Cause), Section [17.1] (Limited Warranty).

    3. If a subscription start date is not specified on the applicable Order Form, the subscription start date is the day that Customer signs the Order Form. Each Subscription Term will automatically renew for additional successive twelve-month periods unless: (i) otherwise stated on the applicable Order Form; or (ii) either party gives written notice of non-renewal at least sixty (60) days before the end of the then-current Subscription Term.

  9. INVOICING

    1. The Service is invoiced for a 12 month period at the beginning of the Effective Period unless otherwise specified on the Order Form. If the Effective period is longer than 12 months but under 24 months the Effective Period shall be invoiced in total in the beginning of the Effective Period. Otherwise the Service shall be invoiced in 12 month terms (“Invoicing Term”).

    2. The invoices shall be sent to the billing address provided by the Customer. The preferred Invoicing method is electronic invoicing via email (as pdf) or e-Invoice where available. Happeo has the right to include invoicing fee for traditional paper invoices send via traditional mail.

    3. The Customer is solely responsible for providing and updating a valid billing address. If the Customer billing address changes the Customer must inform Happeo at Customer’s earliest convenience. Failing to provide or update billing address doesn’t waive the Customers obligation to pay the invoice or any lateness penalty due to not receiving the original invoice.

    4. The term of payment is 14 days net. Happeo has the right to charge lateness penalty from the Customer if Happeo hasn’t received payment within 3 bank days from the due date. The penalty shall be calculated from the due date to the day the payment is received by Happeo. Penalty shall be calculated by actual days. The Customer has 5 days to notify a dispute to the Invoice. The 5 days is calculated from the date the Customer has received the invoice. If no other means of determine the receive date it is determined to be the next work day form the date the Invoice was sent by Happeo. If the Customer doesn’t react to the Invoice in 5 days the Invoice is considered undisputed and valid. Undisputed late payments may be subject to a service charge equal to the lesser of 1.5% per month of the amount due or the maximum amount allowed by law.

    5. The Customer shall inform Happeo about all necessary reference information needed to process the invoice. If Customer has not provided such information to Happeo the Customer cannot waive the obligation to pay the Invoice even if it doesn’t have the reference information needed to internally process the payment.

  10. FEES AND PAYMENT

    1. The Customer is billed according to the licences and fees determined in the applicable Order Form.

    2. Customer agrees to pay all fees in the currency and payment period specified in the applicable Order Form. Happeo’s fees are exclusive of all taxes. If Happeo is obligated to collect or pay Taxes, the Taxes will be invoiced from Customer, unless Customer provides Happeo with a valid tax exemption certificate authorized by the appropriate taxing authority. If Customer is required by law to withhold any Taxes from its payments to Happeo, Customer must provide Happeo with an official tax receipt or other appropriate documentation to support such payments. Any applicable taxes shall be added to the customer invoice.

    3. If the Customer adds additional licences in excess of the amount on the applicable Order Form Happeo may charge additional fees. The Additional Licence Fee is charged monthly in arrears. Additional licenses will be priced at the  same cost per licence as agreed in the applicable Order Form. After additional users have been licenced and an invoice issued all future invoicing will be based on the increased licence number for the remainder of the Subscription Term. If changes have minimal financial effect the changes can be pooled on its own invoice on a later date. Billing of changes made will commence from the beginning of the month of the Change Date

    4. The payment shall be made via wire transfer to Happeo’s bank account (Bank Name: Nordea Bank Oyj, Account number: FI77 1800 3081 6100 28, BIC / Swift: NDEAFIHH, Bank Address: Satamaradankatu 5, 00020 Nordea, Finland). The message of the payment shall include the applicable invoice number or the reference number of the invoice. The payment shall be made latest on the due date specified in the applicable invoice.

  11. TERMINATION

    1. Either party may terminate this Agreement with thirty (30) days’ advance written notice if all Subscription Terms for the Happeo Service(s) have expired or are terminated as expressly permitted in this Agreement If the termination notice is submitted later than 60 days prior to the Subscription End, the subscription shall renew as defined in section [9.3] and the termination shall commence at the end of the renewed subscription.

    2. The Customer shall submit the termination notice via email to support@happeo.com. The termination is considered to be received on the date it has arrived to the designated inbox. Only termination notices submitted to support@happeo.com are considered valid termination notices.

    3. The Contract can be terminated with immediate effect, if:

  1. the other party is in material breach of the Contract and fails to cure that breach within Sixty days after receipt of written notice.

  2. the other party ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within ninety days.

  3. the other party is in material breach of these Terms more than two times notwithstanding any cure of such breaches.

    1. The Happeo has the right to suspend the Customers accounts and terminate this contract if the Customer has either two undisputed outstanding unpaid invoices past due, or at least one undisputed invoice outstanding unpaid, past due minimum of 90 days. Customers liability to pay any undisputed invoice does not cease with the suspension or termination. The Happeo may withhold any customer data in the service and shall have the right not to release it to the Customer until all undisputed overdue invoices have been paid in full.

    2. At the termination of this agreement, the: (i) rights granted by one party to the other will cease immediately (except as set forth in this Section); (ii) Happeo shall provide Customer access to, and the ability to export, the Customer Data for a commercially reasonable period of time at Company’ then-current rates for the applicable Services (except as set in 12.4.); (iii) after a commercially reasonable period of time, Happeo shall delete Customer Data by removing pointers to it on Company’ active servers and overwriting it over time; and (iv) upon request each party will promptly use commercially reasonable efforts to return or destroy all other Confidential Information of the other party. If a Customer on an annual plan terminates the Contract prior to the conclusion of its annual plan, Happeo will bill Customer, and Customer is responsible for paying Happeo, for the remaining unpaid amount of Customer’s annual commitment.

    3. The Following sections survive any expiration or termination of this Contract: 7, 11, 12.4, 12.5, 13, 14, 15, 16, 17, 20

      CONFIDENTIAL INFORMATION

    1. Each party (as the receiving party) must: (i) hold in confidence and not disclose the other party’s Confidential Information to third parties except as permitted by this Contract; and (ii) only use the other party’s Confidential Information to fulfill its obligations and exercise its rights under this Contract. Each party may share the other party’s Confidential Information with its, and its Affiliates’, employees, agents or contractors having a legitimate need to know (which, for Happeo, includes the subcontractors referenced in Section 16.5), provided that the party remains responsible for any recipient’s compliance with the terms of this Section 10 and that these recipients are bound to confidentiality obligations no less protective than this Section.

    2. These confidentiality obligations do not apply to (and Confidential Information does not include) information that: (i) is or becomes public knowledge through no fault of the receiving party; (ii) was known by the receiving party before it received the Confidential Information; (iii) is rightfully obtained by the receiving party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by the receiving party without using the disclosing party’s Confidential Information, as can be shown by documentary evidence. A party may also disclose the other party’s Confidential Information to the extent required by law or court order, provided it gives advanced notice (if permitted by law) and cooperates in any effort by the other party to obtain confidential treatment for the information.

    3. The parties acknowledge that disclosing Confidential Information may cause substantial harm for which damages alone may be an insufficient remedy, and so on breach of this Section, each party is entitled to seek appropriate equitable relief in addition to any other remedies it may have at law.

      INTELLECTUAL PROPERTY RIGHTS

    1. Except as expressly set forth herein, these Terms does not grant either party any rights, implied or otherwise, to the other's content or any of the other's intellectual property. As between the parties, Customer owns all Intellectual Property Rights in Customer Data, and Happeo owns all Intellectual Property Rights in the Service.

      HAPPEO TECHNOLOGY

    1. This is a subscription agreement for access to and use of the Happeo Service. Customer acknowledges that it is obtaining only a limited right to use the Happeo Service and that irrespective of any use of the words “purchase”, “sale” or similar terms, no ownership rights are transferred to Customer under this Contract. Customer agrees that Happeo (or its suppliers) retain all rights, title and interest (including all intellectual property rights) in and to all Happeo Technology (which is deemed Happeo Confidential Information) and reserves any licenses not specifically granted in this Contract. The Happeo Service is offered as an online, hosted product. Accordingly, Customer acknowledges and agrees that it has no right to obtain a copy of the software behind any Happeo Service and that Happeo at its option may make updates, bug fixes, modifications or improvements to the Happeo Service from time-to-time.

    2. If Customer elects to provide any suggestions, comments, improvements, information, ideas or other feedback or related materials to Happeo (collectively, “Feedback”), Customer hereby grants Happeo a worldwide, perpetual, non-revocable, sublicensable, royalty-free right and license to use, copy, disclose, license, distribute, and exploit any Feedback in any format and in any manner without any obligation, payment, or restriction based on intellectual property rights or otherwise, however Happeo will not identify Customer as the source of the Feedback. Nothing in this Contract limits Happeo’s right to independently use, develop, evaluate, or market products, whether incorporating Feedback or otherwise.

      INDEMNIFICATION

    1. Happeo agrees to defend and indemnify Customer from and against any third-party claims and liabilities to the extent resulting from infringement of any Australian, Canadian, European Union member state, United Kingdom, or United States: patent, copyright, trademark, or trade secret by the Happeo Service itself, as provided by Happeo and used by Customer in accordance with this Contract. In response to any claim or potential claim of infringement, if required by settlement or injunction, or if Happeo determines these actions are reasonably necessary to avoid material liability, Happeo may at its option: (i) procure a license for the affected portion of the Happeo Service; (ii) modify the Happeo Service so as to avoid infringement but be materially equivalent; or (iii) terminate the Order Form for the affected Happeo Service and refund any subscription fees Customer has pre-paid for the terminated portion of the applicable Subscription Term. Notwithstanding the above, Happeo’s obligations under this Section do not apply to the extent infringement results from: (a) Third-Party Products or combinations with these items; (b) modification of the Happeo Service by someone other than Happeo or its subcontractors; or (c) use of the Happeo Service other than the then-most current release. Happeo’s obligations under this Section also do not apply to use in breach of this Contract, to Customer Data or Beta Releases. THIS SECTION 12.1 STATES THE SOLE AND EXCLUSIVE REMEDY OF CUSTOMER AND THE ENTIRE LIABILITY OF HAPPEO, OR ANY OF ITS SUPPLIERS, OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, CONTRACTORS OR REPRESENTATIVES, WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT.

    2. Customer agrees to defend and indemnify Happeo from and against any third-party claims and liabilities to the extent resulting from: Customer Data or a breach or alleged breach of Section 5 (Customer Obligations).

    3. Each party’s defense and indemnification obligations are subject to the indemnifying party receiving: (i) prompt written notice of a claim; (ii) the exclusive right to control and direct the investigation, defense, and settlement of the claim; and (iii) all reasonable necessary cooperation of the indemnified party at the indemnifying party’s expense (as to reasonable out-of-pocket costs). The indemnifying party must not settle any claim without the indemnified party’s prior written consent if the settlement would require the indemnified party to admit fault, pay amounts that the indemnifying party must pay under this Section, or take or refrain from taking any action (other than with respect to the Happeo Service or features). The indemnified party may participate in a claim through counsel of its own choosing at its own expense.

      WARRANTY; DISCLAIMERS

    1. Limited Warranty. During the Subscription Term, Happeo warrants, for Customer’s benefit only, that: (i) the Happeo Service will operate in substantial conformity with the applicable Documentation; (ii) any support and onboarding services provided by Happeo will be provided in a professional manner substantially in accordance with Happeo’s applicable service descriptions; (collectively, the “Performance Warranty”). Customer must notify Happeo in writing within thirty (30) days of discovery and include a brief reference to the applicable warranty and detailed description of the potential breach. If Happeo receives a valid warranty claim within this period, it will use commercially reasonable efforts in its discretion to repair the affected portion of the Happeo Service or re-perform the services (as applicable), or if it determines this remedy is not commercially reasonable, either party may terminate the applicable Order Form with prompt written notice. Upon termination as a result of a warranty claim under this Section, Customer will receive a refund of any subscription fees it has pre-paid for the terminated portion of the applicable Subscription Term. The remedy in this Section will be Customer’s sole and exclusive remedy (and Happeo’s sole liability) for any breaches of the Performance Warranty. Notwithstanding the above,  Performance Warranty does not cover and Happeo will not be responsible for: (a) errors in or resulting from Third-Party Products or Third-Party Content; (b) Customer’s misuse or failure to follow the Documentation; (c) modifications or services by anyone other than Happeo or its subcontractors; (d) any version of Happeo Service other than the then most recent release; or (e) any Alpha and Beta Releases.

    2. EXCEPT FOR THE ABOVE PERFORMANCE WARRANTY, ALL HAPPEO TECHNOLOGY AND RELATED SERVICES ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. NEITHER HAPPEO NOR ITS SUPPLIERS MAKE ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. HAPPEO MAKES NO OTHER REPRESENTATION, WARRANTY OR GUARANTEE THAT HAPPEO TECHNOLOGY WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS, THAT CUSTOMER DATA WILL BE ACCURATE, COMPLETE, OR PRESERVED WITHOUT LOSS, OR THAT HAPPEO TECHNOLOGY WILL BE TIMELY, UNINTERRUPTED OR ERROR-FREE. HAPPEO DOES NOT GUARANTEE THAT SECURITY MEASURES WILL BE ERROR-FREE AND WILL NOT BE RESPONSIBLE OR LIABLE FOR UNAUTHORIZED ACCESS BEYOND ITS REASONABLE CONTROL. HAPPEO WILL NOT BE RESPONSIBLE OR LIABLE IN ANY MANNER FOR ANY THIRD-PARTY PRODUCTS, THIRD-PARTY CONTENT, OR NON-HAPPEO SERVICES (INCLUDING FOR ANY DELAYS, INTERRUPTIONS, TRANSMISSION ERRORS, SECURITY FAILURES, AND OTHER PROBLEMS CAUSED BY THESE ITEMS), FOR REGULATED DATA RECEIVED FROM CUSTOMER IN BREACH OF THIS CONTRACT. FOR THE COLLECTION, USE AND DISCLOSURE OF CUSTOMER DATA AUTHORIZED BY THIS CONTRACT, OR FOR DECISIONS OR ACTIONS TAKEN (OR NOT TAKEN) BY CUSTOMER BASED UPON HAPPEO TECHNOLOGY OR HAPPEO’S RELATED SERVICES. THE DISCLAIMERS IN THIS SECTION WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS CONTRACT. CUSTOMER MAY HAVE OTHER STATUTORY RIGHTS. HOWEVER, ANY STATUTORILY REQUIRED WARRANTIES UNDER APPLICABLE LAW, IF ANY, WILL BE LIMITED TO THE SHORTEST PERIOD AND MAXIMUM EXTENT PERMITTED BY LAW.

      LIMITATIONS OF LIABILITY

    1. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY OR ITS SUPPLIERS BE LIABLE FOR ANY LOSS OF USE, LOST OR INACCURATE DATA, INTERRUPTION OF BUSINESS, LOST PROFITS, COSTS OF DELAY, REPUTATIONAL HARM, OR ANY INDIRECT, SPECIAL, INCIDENTAL, COVER, RELIANCE OR CONSEQUENTIAL DAMAGES OF ANY KIND HOWEVER CAUSED, EVEN IF INFORMED IN ADVANCE OF THE POSSIBILITY OF THESE DAMAGES.

    2. EACH PARTY’S AND ITS SUPPLIERS’ TOTAL LIABILITY WILL NOT EXCEED IN AGGREGATE THE AMOUNT ACTUALLY PAID OR PAYABLE BY CUSTOMER TO HAPPEO FOR THE APPLICABLE HAPPEO SERVICE OR RELATED SERVICES IN THE TWELVE (12) MONTHS PRECEDING THE CLAIM, EXCEPT THAT THIS SECTION 17.2 DOES NOT APPLY TO: (i) DEFENSE COSTS AND DAMAGES PAYABLE BY AN INDEMNIFYING PARTY TO THIRD PARTIES UNDER SECTION 15 (INDEMNIFICATION); AND (ii) CUSTOMER’S PAYMENT OBLIGATIONS AS EXPRESSLY PROVIDED IN THIS CONTRACT. FOR BETA RELEASES, HAPPEO’S TOTAL LIABILITY WILL NOT EXCEED IN AGGREGATE FIFTY EURO (50 EUR).

    3. NOTWITHSTANDING THE FOREGOING, NONE OF THE LIMITATIONS IN THIS SECTION 18 EXCLUDES EITHER PARTY’S LIABILITY FOR FRAUD OR FOR DEATH OR PERSONAL INJURY TO THE EXTENT CAUSED BY A PARTY’S NEGLIGENCE. IN ADDITION, THE LAWS IN SOME JURISDICTIONS MAY NOT ALLOW SOME OF THE LIMITATIONS OF LIABILITY IN THIS SECTION. IF ANY OF THESE LAWS IS FOUND TO APPLY TO THIS CONTRACT, THIS SECTION 17 WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY LAW.

    4. EACH PARTY ACKNOWLEDGES AND AGREES THAT THIS SECTION 18 IS A FUNDAMENTAL BASIS OF THE BARGAIN AND A REASONABLE ALLOCATION OF RISK BETWEEN THE PARTIES AND WILL SURVIVE AND APPLY TO ANY CLAIMS ARISING OUT OF OR RELATED TO THIS CONTRACT, ANY HAPPEO TECHNOLOGY OR ANY RELATED SERVICES, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE), EVEN IF ANY LIMITED REMEDY IN THIS CONTRACT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.

      THIRD-PARTY PRODUCTS AND INTEGRATIONS

    1. If Customer uses Third-Party Products in connection with the Happeo Services, those products may make Third-Party Content available to Customer and may access Customer’s instance of the Happeo Service, including Customer Data. Happeo does not warrant or support Third-Party Products or Third-Party Content (whether or not these items are designated by Happeo as “powered”, “verified” or otherwise) and disclaims all responsibility and liability for these items and their access to the Happeo Services, including their modification, deletion, disclosure, or collection of Customer Data. Happeo is not responsible in any way for Customer Data once it is transmitted, copied, or removed from the Happeo Services by Customer or under Customer’s direction.

      GENERAL TERMS

    1. NOTICES: Any notice or communication under this Contract must be in writing. Customer must send any notices under this Contract (including breach notices and warranty and indemnity claims) to Happeo, in English, at the following address, support@happeo.com, and include “Attn. Legal Department” in the subject line. Happeo may send notices to the email addresses on Customer’s account or, at Happeo’s option, to Customer’s last-known postal address. Happeo may also provide operational notices regarding the Happeo Service or other business-related notices through conspicuous posting of the notice on Happeo’s website or the Happeo Service. Each party consents to receiving electronic notices. Happeo is not responsible for any automatic filtering Customer or its network provider may apply to email notification

    2. ASSIGNMENT: This Contract will bind and inure to the benefit of each party’s permitted successors and assigns. Neither party may assign this Contract without the advance written consent of the other party, except that each party may assign this Contract without consent in connection with a merger, reorganization, acquisition, or other transfer of all or substantially all of its assets or voting securities. Any attempt to transfer or assign this Contract except as expressly authorized under this Section 20.2 will be void.

    3. PUBLICITY: Unless otherwise specified in the applicable Order Form, Happeo may use Customer’s name, logo, and marks to identify Customer as a Happeo customer on Happeo’s website and other marketing materials

    4. SUBCONTRACTORS: Happeo may use subcontractors and permit them to exercise the rights granted to Happeo in order to provide the Happeo Service and related services under this Contract. These subcontractors may include, for example, Happeo’s hosted service. However, subject to all terms and conditions of this Contract, Happeo will remain responsible for: (i) compliance of its subcontractors with the terms of this Contract; and (ii) the overall performance of the Happeo Services if and as required under this Contract.

    5. INDEPENDENT CONTRACTORS:  The parties to this Contract are independent contractors, and this Contract does not create a partnership, joint venture, employment, franchise, or agency relationship. Neither party has the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.

    6. FORCE MAJEURE: Neither party will be liable for any delay or failure to perform its obligation under this Contract if the delay or failure is due to causes beyond its reasonable control, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or reduction of power or telecommunications or data networks or services, or government act.

    7. EXPORT: Customer is responsible for obtaining any required export or import authorisations or control laws for the use of any Happeo Service.

    8. AMENDMENTS; WAIVERS: Any modification or amendment to this Contract must be made in writing and executed by an authorized representative of each party. If, during Customer’s Subscription Term, Happeo modifies the Service-Specific Terms relevant for a specific Happeo Service purchased under an Order Form, the modified version will take effect upon Customer’s next renewal. If Happeo launches new products or optional features that require opt-in acceptance of new terms, those terms will apply upon Customer’s acceptance or use. For Customer accepts new Order Forms or Order Form changes following the modification, the changes will take effect immediately. However, during a Subscription Term, Happeo may update Happeo’s Security page, Privacy Policy, and Acceptable Use Policy from time-to-time to reflect process improvements or changing practices, provided these changes do not substantially diminish Customer’s rights or create substantial additional Customer obligations during a Subscription Term, and these changes will take effect thirty (30) days from the date of posting. Happeo’s  Documentation is available online and constantly being developed and improved, and as a result, during a Subscription Term Happeo may update the Documentation to reflect best practice with the relevant Happeo Service, provided that these changes do not substantially diminish Customer’s rights or create substantial Customer obligations. In the event of any conflict between this Contract and any Order Form, this Contract will take precedence unless otherwise expressly provided. No waiver will be implied from conduct or failure to enforce or exercise rights under this Contract. Waivers must be made in writing and executed by an authorized representative of the waiving party.

    9. NO WAIVER: Failure to enforce any provision of these Terms will not constitute a waiver.

    10. SEVERABILITY: If any provision of this Contract is found by any court of competent jurisdiction to be unenforceable or invalid, that provision will be limited to the minimum extent necessary so that this Contract may otherwise remain in effect.

    11. NO THIRD PARTY RIGHTS: Nothing in this Contract confers on any third party the right to enforce any provision of this Contract. Customer acknowledges that each Order Form only permits use by and for the legal entity or entities identified in the Order Form(s).

    12. ENTIRE AGREEMENT:. This Contract represents the parties’ complete and exclusive understanding relating to the Contract’s subject matter. It supersedes all prior or contemporaneous oral or written communications, proposals and representations with respect to the Happeo Technology or any other subject matter covered by this Contract. The terms of the United Nations Convention on Contracts for the Sale of Goods do not apply to this Contract. Any terms provided by Customer (including as part of any purchase order or other business form used by Customer) are for administrative purposes only, and have no legal effect. This Contract may be signed in counterparts, including by electronic copy, each of which will be deemed an original, and all counterparts together constituting one and the same Contract.

    13. DISPUTE RESOLUTION: All disputes will primarily be resolved by negotiation between parties. If such negotiations fail the disputes will be resolved in Arbitration. Arbitration shall consist of one arbitrator and the language of the arbitration shall be English.

    14. GOVERNING LAW: This Contract is governed by the laws of Finland without regard to any conflict of law provisions. The jurisdiction and venue for arbitration arising out of or relating to the subject matter of this agreement will be the courts located in Helsinki, Finland.

      ORDER OF PRECEDENCE

    1. The Order of Precedence is i) This Contract, ii) DPA, iii) Annexes in descending order, iv) written communication between the Parties.

Annex 1. EU Standard Data Protection Clauses

Clause 1

Definitions

For the purposes of the Clauses:

(a) 'personal data', 'special categories of data', 'process/processing', 'controller', 'processor', 'data subject' and 'supervisory authority' shall have the same meaning as in Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data;

(b) 'the data exporter' means the controller who transfers the personal data;

(c) 'the data importer' means the processor who agrees to receive from the data exporter personal data intended for processing on his behalf after the transfer in accordance with his instructions and the terms of the Clauses and who is not subject to a third country's system ensuring adequate protection within the meaning of Article 25(1) of Directive 95/46/EC;

(d) 'the subprocessor' means any processor engaged by the data importer or by any other subprocessor of the data importer who agrees to receive from the data importer or from any other subprocessor of the data importer personal data exclusively intended for processing activities to be carried out on behalf of the data exporter after the transfer in accordance with his instructions, the terms of the Clauses and the terms of the written subcontract;

(e) 'the applicable data protection law' means the legislation protecting the fundamental rights and freedoms of individuals and, in particular, their right to privacy with respect to the processing of personal data applicable to a data controller in the Member State in which the data exporter is established;

(f) 'technical and organisational security measures' means those measures aimed at protecting personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing.

Clause 2

Details of the transfer

The details of the transfer and in particular the special categories of personal data where applicable are specified in Appendix 1 which forms an integral part of the Clauses.

Clause 3

Third-party beneficiary clause

1. The data subject can enforce against the data exporter this Clause, Clause 4(b) to (i), Clause 5(a) to (e), and (g) to (j), Clause 6(1) and (2), Clause 7, Clause 8(2), and Clauses 9 to 12 as third-party beneficiary.

2. The data subject can enforce against the data importer this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where the data exporter has factually disappeared or has ceased to exist in law unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law, as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity.

3. The data subject can enforce against the subprocessor this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity. Such third-party liability of the subprocessor shall be limited to its own processing operations under the Clauses.

4. The parties do not object to a data subject being represented by an association or other body if the data subject so expressly wishes and if permitted by national law.

Clause 4

Obligations of the data exporter

The data exporter agrees and warrants:

(a) that the processing, including the transfer itself, of the personal data has been and will continue to be carried out in accordance with the relevant provisions of the applicable data protection law (and, where applicable, has been notified to the relevant authorities of the Member State where the data exporter is established) and does not violate the relevant provisions of that State;

(b) that it has instructed and throughout the duration of the personal data processing services will instruct the data importer to process the personal data transferred only on the data exporter's behalf and in accordance with the applicable data protection law and the Clauses;

(c) that the data importer will provide sufficient guarantees in respect of the technical and organisational security measures specified in Appendix 2 to this contract;

(d) that after assessment of the requirements of the applicable data protection law, the security measures are appropriate to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing, and that these measures ensure a level of security appropriate to the risks presented by the processing and the nature of the data to be protected having regard to the state of the art and the cost of their implementation;

(e) that it will ensure compliance with the security measures;

(f) that, if the transfer involves special categories of data, the data subject has been informed or will be informed before, or as soon as possible after, the transfer that its data could be transmitted to a third country not providing adequate protection within the meaning of Directive 95/46/EC;

(g) to forward any notification received from the data importer or any subprocessor pursuant to Clause 5(b) and Clause 8(3) to the data protection supervisory authority if the data exporter decides to continue the transfer or to lift the suspension;

(h) to make available to the data subjects upon request a copy of the Clauses, with the exception of Appendix 2, and a summary description of the security measures, as well as a copy of any contract for subprocessing services which has to be made in accordance with the Clauses, unless the Clauses or the contract contain commercial information, in which case it may remove such commercial information;

(i) that, in the event of subprocessing, the processing activity is carried out in accordance with Clause 11 by a subprocessor providing at least the same level of protection for the personal data and the rights of data subject as the data importer under the Clauses; and

(j) that it will ensure compliance with Clause 4(a) to (i).

Clause 5

Obligations of the data importer

The data importer agrees and warrants:

(a) to process the personal data only on behalf of the data exporter and in compliance with its instructions and the Clauses; if it cannot provide such compliance for whatever reasons, it agrees to inform promptly the data exporter of its inability to comply, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;

(b) that it has no reason to believe that the legislation applicable to it prevents it from fulfilling the instructions received from the data exporter and its obligations under the contract and that in the event of a change in this legislation which is likely to have a substantial adverse effect on the warranties and obligations provided by the Clauses, it will promptly notify the change to the data exporter as soon as it is aware, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;

(c) that it has implemented the technical and organisational security measures specified in Appendix 2 before processing the personal data transferred;

(d) that it will promptly notify the data exporter about:

(i) any legally binding request for disclosure of the personal data by a law enforcement authority unless otherwise prohibited, such as a prohibition under criminal law to preserve the confidentiality of a law enforcement investigation,

(ii) any accidental or unauthorised access, and

(iii) any request received directly from the data subjects without responding to that request, unless it has been otherwise authorised to do so;

(e) to deal promptly and properly with all inquiries from the data exporter relating to its processing of the personal data subject to the transfer and to abide by the advice of the supervisory authority with regard to the processing of the data transferred;

(f) at the request of the data exporter to submit its data processing facilities for audit of the processing activities covered by the Clauses which shall be carried out by the data exporter or an inspection body composed of independent members and in possession of the required professional qualifications bound by a duty of confidentiality, selected by the data exporter, where applicable, in agreement with the supervisory authority;

(g) to make available to the data subject upon request a copy of the Clauses, or any existing contract for subprocessing, unless the Clauses or contract contain commercial information, in which case it may remove such commercial information, with the exception of Appendix 2 which shall be replaced by a summary description of the security measures in those cases where the data subject is unable to obtain a copy from the data exporter;

(h) that, in the event of subprocessing, it has previously informed the data exporter and obtained its prior written consent;

(i) that the processing services by the subprocessor will be carried out in accordance with Clause 11;

(j) to send promptly a copy of any subprocessor agreement it concludes under the Clauses to the data exporter.

Clause 6

Liability

1. The parties agree that any data subject, who has suffered damage as a result of any breach of the obligations referred to in Clause 3 or in Clause 11 by any party or subprocessor is entitled to receive compensation from the data exporter for the damage suffered.

2. If a data subject is not able to bring a claim for compensation in accordance with paragraph 1 against the data exporter, arising out of a breach by the data importer or his subprocessor of any of their obligations referred to in Clause 3 or in Clause 11, because the data exporter has factually disappeared or ceased to exist in law or has become insolvent, the data importer agrees that the data subject may issue a claim against the data importer as if it were the data exporter, unless any successor entity has assumed the entire legal obligations of the data exporter by contract of by operation of law, in which case the data subject can enforce its rights against such entity.

The data importer may not rely on a breach by a subprocessor of its obligations in order to avoid its own liabilities.

3. If a data subject is not able to bring a claim against the data exporter or the data importer referred to in paragraphs 1 and 2, arising out of a breach by the subprocessor of any of their obligations referred to in Clause 3 or in Clause 11 because both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, the subprocessor agrees that the data subject may issue a claim against the data subprocessor with regard to its own processing operations under the Clauses as if it were the data exporter or the data importer, unless any successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law, in which case the data subject can enforce its rights against such entity. The liability of the subprocessor shall be limited to its own processing operations under the Clauses.

Clause 7

Mediation and jurisdiction

1. The data importer agrees that if the data subject invokes against it third-party beneficiary rights and/or claims compensation for damages under the Clauses, the data importer will accept the decision of the data subject:

(a) to refer the dispute to mediation, by an independent person or, where applicable, by the supervisory authority;

(b) to refer the dispute to the courts in the Member State in which the data exporter is established.

2. The parties agree that the choice made by the data subject will not prejudice its substantive or procedural rights to seek remedies in accordance with other provisions of national or international law.

Clause 8

Cooperation with supervisory authorities

1. The data exporter agrees to deposit a copy of this contract with the supervisory authority if it so requests or if such deposit is required under the applicable data protection law.

2. The parties agree that the supervisory authority has the right to conduct an audit of the data importer, and of any subprocessor, which has the same scope and is subject to the same conditions as would apply to an audit of the data exporter under the applicable data protection law.

3. The data importer shall promptly inform the data exporter about the existence of legislation applicable to it or any subprocessor preventing the conduct of an audit of the data importer, or any subprocessor, pursuant to paragraph 2. In such a case the data exporter shall be entitled to take the measures foreseen in Clause 5 (b).

Clause 9

Governing Law

The Clauses shall be governed by the law of the Member State in which the data exporter is established, namely Finland

Clause 10

Variation of the contract

The parties undertake not to vary or modify the Clauses. This does not preclude the parties from adding clauses on business related issues where required as long as they do not contradict the Clause.

Clause 11

Subprocessing

1. The data importer shall not subcontract any of its processing operations performed on behalf of the data exporter under the Clauses without the prior written consent of the data exporter. Where the data importer subcontracts its obligations under the Clauses, with the consent of the data exporter, it shall do so only by way of a written agreement with the subprocessor which imposes the same obligations on the subprocessor as are imposed on the data importer under the Clauses. Where the subprocessor fails to fulfil its data protection obligations under such written agreement the data importer shall remain fully liable to the data exporter for the performance of the subprocessor's obligations under such agreement.

2. The prior written contract between the data importer and the subprocessor shall also provide for a third-party beneficiary clause as laid down in Clause 3 for cases where the data subject is not able to bring the claim for compensation referred to in paragraph 1 of Clause 6 against the data exporter or the data importer because they have factually disappeared or have ceased to exist in law or have become insolvent and no successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law. Such third-party liability of the subprocessor shall be limited to its own processing operations under the Clauses.

3. The provisions relating to data protection aspects for subprocessing of the contract referred to in paragraph 1 shall be governed by the law of the Member State in which the data exporter is established, namely Finland.

4. The data exporter shall keep a list of subprocessing agreements concluded under the Clauses and notified by the data importer pursuant to Clause 5 (j), which shall be updated at least once a year. The list shall be available to the data exporter's data protection supervisory authority.

Clause 12

Obligation after the termination of personal data processing services

1. The parties agree that on the termination of the provision of data processing services, the data importer and the subprocessor shall, at the choice of the data exporter, return all the personal data transferred and the copies thereof to the data exporter or shall destroy all the personal data and certify to the data exporter that it has done so, unless legislation imposed upon the data importer prevents it from returning or destroying all or part of the personal data transferred. In that case, the data importer warrants that it will guarantee the confidentiality of the personal data transferred and will not actively process the personal data transferred anymore.

2. The data importer and the subprocessor warrant that upon request of the data exporter and/or of the supervisory authority, it will submit its data processing facilities for an audit of the measures referred to in paragraph 1.

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