LEADDESK GENERAL TERMS AND CONDITIONS
These LeadDesk General Terms and Conditions shall apply to provision of the LeadDesk Products and LeadDesk Contacts provided by LeadDesk Oy (business ID 2299022-8) or, as the case may be, its affiliate or distributor (hereinafter “Supplier”) to the Customer under the subscription agreement (fi. tilaussopimus) (the “Agreement”) that incorporates these LeadDesk General Terms and Conditions as well as to any LeadDesk Products or LeadDesk Contacts otherwise provided by Supplier to the Customer. Any referral to “Agreement” shall include these LeadDesk General Terms and Condition.
As used in the Agreement, capitalized terms shall have the meanings ascribed to such terms in the following:
“Customer” (fi. asiakas) shall mean the entity having subscribed to or purchased the LeadDesk Products and/or LeadDesk Contacts under this Agreement.
“Customer Data” shall mean all Customer’s data that Customer, a Designated User or another party acting on the Customer’s behalf processes, stores, generates in or submits to the LeadDesk Service. The Customer Data may include personal data.
“Designated Users” shall mean those employees, sales agents or contractors of Customer or designated by Customer who are entitled to use the LeadDesk Service under this Agreement the amount of which users shall be specified in the Order Sheet.
“Intellectual Property Rights” shall mean copyrights and other similar rights and related rights (including database and catalogue rights), patents, utility models, trademarks, trade secrets, know-how and any other form of registered or unregistered intellectual property rights as well as any applications for any of the foregoing.
“LeadDesk Contacts” shall mean any and all consumer or business contact information provided by Supplier pursuant to Customer’s request as specified in the Order Sheet.
“LeadDesk Products” shall mean LeadDesk Service and any additional service, product, database, software or equipment provided by Supplier to the Customer, including without limitation Telecommunication Services and LeadDesk Contacts, as applicable.
“LeadDesk Service” shall mean the proprietary “LeadDesk” online software service as specified in the Order Sheet.
“Order Sheet” (fi. tilauslomake) shall mean Appendix 1 to the Agreement.
“Party” shall mean Customer or the Supplier (jointly the ”Parties”).
“Telecommunication Services” shall mean the telephone network services provided by Supplier to Customer under this Agreement. In this Agreement the terms “data controller”, “data processor”, “personal data” and “processing” shall have the same meanings as set out in the Finnish Personal Data Act (523/1999) or any other applicable data protection legislation and shall be construed accordingly.
2 LEADDESK PRODUCTS
2.1 Upon the subscription of the LeadDesk Service by the Customer, Supplier grants to Customer and any Designated Users, subject to the terms and conditions of this Agreement and the payment of the fees set out in the Order Sheet or in Supplier’s price list in force from time to time, a limited, non-exclusive and nontransferrable license to access and use the LeadDesk Service solely for Customer’s internal use during the term of this Agreement.
2.2 Upon lease by the Customer of LeadDesk Appliances (as set out in the Order Sheet), the Customer and the Designated Users shall have the right to use the LeadDesk Appliances solely for the purpose of using the LeadDesk Products as set out in this Agreement during the term hereof. Customer shall handle the LeadDesk Appliances with due care and not provide access to the LeadDesk Appliances to any third party without Supplier’s prior written consent. Supplier shall at all times retain title and ownership to the LeadDesk Appliances leased to the Customer under this Agreement. LeadDesk Appliances may also be purchased from Supplier in which case title to LeadDesk Appliances shall pass to Customer when Customer has paid the full price for the same in accordance with Supplier’s price list in force from time to time. All risk of loss or damage to both leased and purchased LeadDesk Appliances shall pass to Customer upon delivery to carrier and, as the case may be, return to Supplier when the LeadDesk Appliances has been returned to Supplier.
2.3 Customer shall not on the basis of this Agreement have any rights to modify, decompile, reverse engineer, access the source code of or transfer, assign, sublicense or distribute the LeadDesk Products.
2.4 All Intellectual Property Rights in and to the LeadDesk Products are and shall at all times remain the sole and exclusive property of Supplier and/or any relevant third parties. Nothing in this Agreement shall constitute a transfer of any Intellectual Property Rights of Supplier or any third party to Customer. All rights not expressly granted to Customer shall be retained by Supplier.
2.5 Suppliershall use its commercially reasonable efforts to deliver the setup services for the LeadDesk Products agreed upon in this Agreement and any material related thereto within a reasonable time. Telecommunication Services must be delivered to Customer not later than one (1) month from the commencement of the Agreement or as separately agreed between the Parties. The Customer shall be responsible for installing the LeadDesk Products to its data system environment unless otherwise agreed. Supplier shall, however, provide support to the Customer as stipulated under Clause 3 herein. If Customer has not reported any claims for nonconformity, delay or deficiency relating to the LeadDesk Products or any contract breach within seven (7) days of delivery or from the moment when such deficiency was first visible or such breach occurred, all LeadDesk Products will be deemed accepted and delivered in accordance with this Agreement.
2.6 The Customer is responsible for acquiring any and all network, internet and telecommunications connections and all technical equipment required for using the LeadDesk Products (other than such technical equipment provided by Supplier, as the case may be).
3.1 As a part of the LeadDesk Service provided herein Supplier shall use its commercially reasonable endeavors to provide general remote support and remote assistance to the Customer in using and setting up the LeadDesk Service acquired herein and provide consultation for the Customer’s reasonable questions related to the LeadDesk Service for a period of one (1) month as of the commencement of the LeadDesk Services, however, such support amounting at most to fifteen (15) personnel hours of Supplier.
3.2 In addition to the general support services set forth above in 3.1, Customer may order from Supplier additional setup, support, onsite support, consultancy and training services related to the use of the LeadDesk Products at the prices set out in Supplier’s price list from time to time.
4 CHANGES TO THE LEADDESK PRODUCTS
4.1 Supplier may, from time to time, under its sole discretion, modify and update any of the LeadDesk Products or a part thereof and may cease to provide the same. If such changes of the LeadDesk Products require changes to be made to the Customer’s equipment or software, LeadDesk shall notify the Customer of all such necessary changes at least one (1) week in advance prior to implementing such changes to the LeadDesk Products. The Customer is responsible for carrying out such changes to its equipment or software at its own expense.
4.2 Any additional development work of the LeadDesk Products requested by Customer and any fees and prices payable thereof shall always be separately agreed upon with Supplier in writing.
5 LEADDESK CONTACTS
5.1 Supplier may, at Customer’s request, make available to the Customer LeadDesk Contacts. The Customer is granted a limited, non-exclusive and non-transferrable right to use the LeadDesk Contacts. The Customer may not transfer, assign, disclose or sublicense the LeadDesk Contacts to any third party.
5.2 When providing the LeadDesk Contacts to Customer, Supplier either
- offers telephone directory data to Customer on behalf of and authorized by a third-party telephone directory data provider (as defined in Section 25 of the Act on the Protection of Privacy in Electronic Communications 516/2004) in which case the telephone directory data provider acts as data controller and Supplier as data processor of such telephone directory data under any applicable laws; or
- offers other types of personal data to Customer by procuring or collecting personal data on behalf of the Customer in which case Customer acts as data controller and Supplier as data processor of such personal data under any applicable laws.
5.3The Customer may use the LeadDesk Contacts only in compliance with all applicable data protection laws and any other laws. For the avoidance of doubt, Customer shall process the personal data included in the LeadDesk Contacts only to the extent and for the duration permitted by applicable data protection laws and ensure the security and confidentiality of the LeadDesk Contacts. The Customer shall be solely responsible for its own use of the LeadDesk Contacts.
5.4 The Customer undertakes to not erase, cover or delete any possible ownership and/or copyright labelling from the LeadDesk Contacts.
6 CUSTOMER DATA AND DATA PROTECTION
6.1 Customer acknowledges that Supplier stores Customer Data only for a limited time determined by Supplier in its sole discretion and Customer shall be solely responsible for storing appropriate backup copies of the Customer Data. Customer especially acknowledges that Supplier stores telephone call recordings or tapes only for a period of three (3) months. The Customer may purchase extended storage time from Supplier at a price set out in Supplier’s current price list from time to time.
6.2 Customer is solely responsible for the legality, accuracy and non-infringing nature of its Customer Data and of the means by which it acquired the personal data included in its Customer Data. When submitting Personal Data to the LeadDesk Service, Customer acts as data controller under applicable data protection laws.
6.3The Customer shall
- acquire any and all necessary consents from or inform its employees and subcontractors and other concerned data subjects,
- compile any necessary data file descriptions and
- make any necessary notifications to any relevant data protection authorities required in order for the Parties’ to legally process personal data (whether LeadDesk Contacts or Customer Data) for the purposes set forth herein in accordance with the requirements set out by applicable law.
6.4 For the purposes of providing the LeadDesk Service and for the purposes of this Agreement, Supplier acts as data processor with regard to the personal data included in Customer Data. Supplier shall, as data processor, process the personal data included in the Customer Data duly and in accordance with good data protection practice as required by applicable data protection laws. Supplier undertakes to process personal data, whether LeadDesk Contacts or Customer Data, only to the extent required to perform its duties under this Agreement and to provide the LeadDesk Products and the LeadDesk Contacts, unless otherwise agreed upon.
6.5 Supplier shall implement appropriate technical and organizational measures in order to protect, secure and safeguard the personal data which is processed by Supplier on behalf of the Customer, whether LeadDesk Contacts or Customer Data. Such security measures must at least reach a level of security equivalent of what is prescribed by applicable law. The Supplier shall immediately inform Customer of any threats to the security of the personal data processed under this Agreement.
6.6 The Customer retains the title and all Intellectual Property Rights in and to the Customer Data. The Customer grants Supplier a non-exclusive, sublicensable, transferrable, worldwide, royalty-free license and permission to use, copy, process, store, modify and otherwise exploit
- Customer Data for the purpose of providing the LeadDesk Products to Customer; and
- generalized and anonymised Customer Data for the purposes of, and subject to restrictions set by applicable data protection laws, developing the LeadDesk Products. The license granted to Supplier under Clause 6.6(ii) herein shall survive the expiry or any termination of this Agreement.
6.7 The Customer shall be responsible for having the competence and licenses required for granting the licenses granted herein under any applicable laws. 6.8 The Customer shall indemnify Supplier from and against any loss, damage, claim or liability arising from its breach of this Clause 6.
7 GENERAL RIGHTS AND RESPONSIBILITIES OF CUSTOMER
7.1 The person signing or otherwise accepting the Agreement represents that it has the authority to bind the organization indicated on the Order Sheet.
7.2The Customer must maintain confidential and secure all identifying codes, passwords and any other confidential information relating to the LeadDesk Products and the provision thereof and ensure that all Designated Users comply with the obligations set out herein.
7.3 The Customer must immediately inform Supplier regarding any threats or suspected threats against the security of the LeadDesk Products and of any unauthorized disclosure of confidential information or personal data related to the LeadDesk Products.
7.4 In relation to all telemarketing, direct marketing and other marketing performed by the Customer or a subcontractor of Customer by using the LeadDesk Products or the LeadDesk Contacts, the Customer ensures that all applicable data protection and consumer protection laws and other laws are complied with, including without limitations direct marketing regulation.
8 FEES AND PAYMENT
8.1 In return for the use of the LeadDesk Products and LeadDesk Contacts under this Agreement, Customer shall pay Supplier the fees set forth in Supplier’s price list in force from time to time. Such fees shall be payable as of the calendar month during which the LeadDesk Service has commenced and in accordance with the invoices and payment instructions issued by Supplier. The Customer has the right to request information from Supplier on how the fees payable for Telecommunication Services have been calculated and accrued by sending Supplier a request thereof within one (1) month from the receipt of the invoice relating to such fees. Late payment interest for due but unpaid amounts shall be calculated in accordance with the Finnish Interest Act (633/1982, as amended).
8.2 All fees and prices set out in this Agreement are exclusive of any value-added taxes, sales or use taxes and any other taxes or levies. The Customer shall be liable for any taxes and levies that may be imposed on the use or purchase of the LeadDesk Products.
8.3 Recurring fees (e.g. licenses) shall be fixed from the first invoice date of this contract until the end of the following year if the invoicing has been started between 1.6.-31.12. and until the end of the current year if the invoicing has been started between 1.1.-31.5. The Recurring Fees for any subsequent annual shall be increased by maximum 5 % (five percent) and the increased prices take effect in the beginning of each year.
9 NO WARRANTY
9.1 The LeadDesk Products provided by Supplier to Customer shall be provided on an “as is” basis. Supplier makes no representations, warranties or guarantees regarding the LeadDesk Products and disclaims all implied and express warranties and representations, including without limitation warranties of merchantability, fitness for a particular purpose and non-infringement.
9.2 Supplier does not warrant that the LeadDesk Products will meet or fulfil Customer’s requirements, expectations or purposes of use, or that the LeadDesk Products will be free of defects or errors or interruptions.
10 LIMITATION OF LIABILITY
10.1 Neither Party shall be liable for any indirect, special or consequential damages resulting from this Agreement, including but not limited to loss of profits or business or damage or loss caused as a result of interruptions in business.
10.2 Supplier shall not be liable for the destruction or loss of Customer Data, nor for any damages and expenses incurred to the Customer as a result. Supplier shall not in any way be liable for the Customer’s own use of the LeadDesk Products or any damages or losses resulting thereof.
10.3 Supplier accepts no liability whatsoever for any problems caused by network connections or electricity supply, or any other problems relating to any service or product provided by any third party service provider.
10.4 As the Customer’s sole and exclusive remedy for any delay or deficiency in relation to the Telecommunication Services, Supplier
- shall use its commercially reasonable efforts to repair or correct the Telecommunication Services; or
- may terminate this Agreement by serving prior notice in writing to the Customer whereupon Supplier will reimburse any Customer’s prepayments of the terminated Telecommunication Services. Customer’s payments relating to the period preceding the termination are not reimbursed to Customer.
10.5 Supplier’s aggregate maximum liability for any damages arising out of or related to this Agreement shall not exceed fifty (50) per cent of the fees actually paid by Customer to Supplier for the LeadDesk Services during the last two (2) months preceding the receipt of the claim for damages.
10.6 Notwithstanding the above in this Clause 10, neither party seeks to exclude or restrict its liability for any matter in respect of which, by law, it is not permitted to restrict its liability, such as liability for damage caused by gross negligence or intent.
11.1 The Parties each undertake and agree to keep secret the other Party’s confidential information including but not limited to technical, financial and commercial information (hereinafter referred to as “Confidential Information”), unless such Confidential Information is required to be disclosed in order to comply with the obligations set out in this Agreement. The Parties are also liable to ensure that those of its employees and subcontractors who have access to the information, are bound by a similar confidentiality obligation.
11.2 The obligations set forth herein regarding Confidential Information shall not apply to information which is:
- in the public domain other than by a breach of this Agreement on the part of the receiving Party;
- rightfully received from a third party not bound by any obligation of confidentiality;
- rightfully known to the receiving Party, as shown by the records of the receiving Party;
- required to be disclosed by law or an authority decision or by a court of competent jurisdiction.
12 TERM AND TERMINATION
12.1 The term of this Agreement is specified on the Order Sheet. If no term has been set out in the Order Sheet, the Agreement shall commence as of both Parties having signed the Agreement and continue for a one (1) year period and shall automatically renew for additional periods of one (1) year at the list price in effect at the time of renewal, unless either Party gives the other a written notice of nonrenewal at least three (3) months’ prior to the end of the relevant subscription year. Notwithstanding the foregoing, the Supplier may at any time terminate the Agreement for convenience with a three (3) months’ prior notice to Customer.
12.2 Supplier shall upon the Customer’s request provide reasonable termination assistance for a maximum of one (1) month after the termination of this Agreement, such termination assistance being assistance in the transfer of the Customer Data from the LeadDesk Service to a new service substituting the LeadDesk Service. Supplier shall charge the Customer for the termination assistance in accordance with the Supplier’s price list in force from time to time. Any and all out of the pocket expenses of Supplier related to termination assistance shall be reimbursed to Supplier.
12.3 A Party may terminate this Agreement with immediate effect if the other Party substantially breaches the provisions of this Agreement and fails to correct the breach within fourteen (14) days of having received written notice of the breach. The Customer acknowledges that a failure by the Customer to pay the fees set forth in in this Agreement shall constitute a material breach of this Agreement and the Customer acknowledges that Supplier may cease to provide the LeadDesk Products to Customer due to such failure by the Customer without prior notice.
12.4 Supplier may terminate this Agreement with immediate effect, in whole or in part, if Customer becomes bankrupt, liquidated or insolvent or enters any proceedings in this regard which can reasonably be considered to weaken its ability to make payments.
12.5 Upon expiry or termination of this Agreement, the Customer shall promptly return any hired LeadDesk Appliances and any possible Confidential Information of Supplier. 16.7 The provisions of this Agreement which by their nature reasonably should survive the termination or other expiration of this Agreement shall survive any expiration or termination of this Agreement.
13.1 Governing Law and Dispute Resolution. This Agreement shall be governed by and construed in accordance with the laws of Finland, without reference to its conflict of laws or private international law provisions. Any dispute, controversy or claim arising out of or in connection with this Agreement or the breach, termination or invalidity thereof, shall be attempted to be amicably settled through negotiations between the Parties for a period of thirty (30) days and failing the same, shall be finally settled in arbitration in accordance with the Arbitration Rules of the Central Chamber of Commerce of Finland by one (1) arbitrator. The arbitration shall take place in Helsinki, Finland and shall be conducted in the English language. The award of the arbitration shall be final and binding on both Parties. Notwithstanding the above, Supplier may always institute legal action in the District Court of Helsinki against the Customer.
13.2 Subcontractors. Each Party shall have the right to subcontract its obligations under this Agreement. Each Party shall ensure that his subcontractor shall comply with the provisions of this Agreement. Each Party shall be liable for the actions of its subcontractors as for its own.
13.3 Force Majeure. A Party shall not be deemed to be in breach of this Agreement as long as its failure to perform any of its obligations hereunder is caused solely by labour disturbance, fire, act of war or nature, information network or telecommunication network malfunction, government order or any other, similar cause beyond the Party’s reasonable control. If such event persists for over one (1) month, a Party may terminate this Agreement immediately upon written notice to the other Party.
13.4 Assignment. Unless expressly agreed otherwise herein, neither this Agreement, nor any interest hereunder shall be assignable by Customer without the prior written consent of the Supplier. Supplier shall be entitled to assign and transfer this Agreement to an affiliate or third party or as a part of a sale of its business operations pertaining to this Agreement or a part thereof.
13.5 Amendments. Supplier is entitled to amend the Agreement and any appendices including without limitation the fees charged for the LeadDesk Products by providing the Customer with a one (1) month prior written notice to the Customer’s address or email address indicated on the Order Sheet. If the Customer does not accept the change made by Supplier to this Agreement or its appendices, the Customer has the right to terminate the Agreement by notifying Supplier thereof in writing at least two (2) weeks prior to the effective date of such change.
13.6 No waiver. A failure by any Party at any time or times to require performance of any provisions of this Agreement shall in no manner affect its right to enforce the same, and the waiver by any Party of any breach of any provision of this 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.
13.7 Entire Agreement and Headings. This Agreement represents the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior negotiations, understandings and agreements relating to the subject matter hereof. This Agreement shall be construed as having been mutually drafted by the Parties without regard to any actual division of responsibility in the drafting hereof. Headings and captions are for convenience of reference only and do not alter the meaning or interpretation of the Agreement.
13.8 Severability. If any term or provision of this Agreement is held to be illegal or unenforceable, the validity of the remainder of this Agreement shall not be affected.