General Terms and Conditions
Purpose and Scope
These terms and conditions (“Terms”) apply to any and all purchases of Products made through this Site (Firstbeat Shop) maintained and operated by Firstbeat Technologies (“Firstbeat”, “we” or “us”) (FI17827725, VAT number).
These Terms become valid once a customer (“Customer” or “You”) accepts these Terms upon purchase and receives an order confirmation from the Firstbeat Shop. Please read this document carefully as it contains the terms and conditions that you agree to be bound by when purchasing Products through the Firstbeat Shop. These Terms and the information You provide during the ordering process in the Site constitute a legally binding agreement between You and Firstbeat.
“Firstbeat” means Firstbeat Technologies Oy (Finnish Business ID 1782772-5) a privately owned Finnish corporation duly registered in Jyväskylä, Finland having its registered office at address: Yliopistonkatu 28 A, 40100 Jyväskylä, Finland.
“SITE” means the world wide web pages of Firstbeat Technologies Oy at the URL/domain name shop.firstbeat.com.
“YOU” or “CUSTOMER” means a private person using this Site as a consumer (“Consumer Customer”) or on behalf of a legal entity which he/she is empowered to represent and representing (“Business Customer”); irrespective of whether purchasing Products or not.
“TERMS” means these Firstbeat Shop terms and conditions.
“PRODUCTS” means products that Firstbeat offers for sale under this Site. The Products may refer to devices and accessories of Firstbeat offered in this Site, or contain certain computer software which will be licensed to You subject to these Terms and terms and conditions of the applicable license terms. The detailed description of Products is available on Firstbeat’s web page (www.firstbeat.fi)
“USER ACCOUNT” means the user account granted to You by Firstbeat when / if You have registered to the user of the Site.
In order for Firstbeat to process Your order, You shall give relevant, correct and complete contact information for the delivery and billing of the Products. You hereby acknowledge and agree that You have a valid right to use the User Account and that You have provided accurate and complete information inquired.
Customer shall be at least 18 years of age and consent and agree to these Terms.
After approving to these Terms and filling in an order form as defined in the Site and in other user instruction submitted to the Site, You shall confirm and submit Your order. In the event You need to correct any information given by You during the ordering process, You may make corrections needed, before You confirm and submit Your order. By submitting an order to Firstbeat You submit an order for the Product on the Terms provided herein which shall be accepted or rejected by Firstbeat at it´s own discretion. Firstbeat will provide You with an confirmation of order by e-mail stating the relevant information of the order, including but not limited to the list of ordered Products, price of the ordered Products, delivery terms of ordered Products and the delivery address.
After Firstbeat has sent You such a confirmation a legally binding agreement is deemed to be constituted.
Ordering Products or Software
Firstbeat Products (devices and accessories)
1) Choose the Products
3) You will receive an order confirmation from firstname.lastname@example.org
4) Fedex or Posti (Finland) delivery information
1) Choose the software. Please note that for Firstbeat software products no return policy applies. Please download a trial version before purchasing the final product.
3) You will receive an order confirmation from email@example.com
4) License Details are sent to you in a separate email
Product and Software Availability
Firstbeat software license and Products can be purchased pursuant to these Terms. Firstbeat will inform You of any non-availability of ordered Products without delay.
Licensing and any use of Firstbeat software shall be made pursuant to license terms. You commit to use Firstbeat Software in accordance with such terms. Unless otherwise agreed, a non-transferable and non-exclusive right to use the Firstbeat software has been granted to one (1) installation.
For more information of territory-specific availability restrictions, please contact firstname.lastname@example.org.
Shipping & Delivery
The delivery shall be carried out by mailing. The Products shall be delivered to You within reasonable time after Your order or within the time limit granted during the ordering process (if any).
Firstbeat reserves a right to postpone the delivery without any liability in case the delay is due to any cause beyond Firstbeat’s reasonable control. In the event of such delay, Firstbeat shall inform You via e-mail as soon as it is possible.
The delivery times expressed in these Terms (if any) are estimations only, and the final delivery time depends on availability of Products and the method of delivery You have chosen.
Within Finland, all Products are delivered through Itella Logistics. Time of delivery is approximately 2-5 business days. On Checkout €5 is added to the final sum to cover delivery costs within Finland.
For deliveries outside Finland the Products shall be delivered through Fedex. From placing an order, shipping usually takes 3-6 business days. On checkout a delivery cost of €20 (or equivalent in other currencies) is added to the final sum upon purchase.
According to Fedex requirements no deliveries can be made to PO. Box addresses. For complete Fedex shipping information, please visit www.fedex.com
Payment and Prices
The Product prices shall be identified on the Site at the time of the placement of Your order. Any price quotations provided by Firstbeat on this Site shall be valid as stated on the Site. Prices for Consumer Customers and Business Customers are expressed separately. Prices for Consumer Customers are including value added tax (VAT). Prices for Business Customers are excluding value added tax (VAT) or other corresponding indirect taxes, which shall be payable by You in accordance with the local legislation, unless otherwise agreed between the Parties. For more information of VAT, see Clause “Taxes”.
Any and all prices are exclusive of shipping and mailing costs.
You agree to ensure that the credit card You use is valid at the time of the transaction, that You are the rightful holder of the credit card and that the credit card is used within its card limits.
Any credit card payments are subject to the approval of the financial institution issuing Your credit card, and Firstbeat is entitled to process inquiries for approval and for other related credit status information with appropriate financial institutions and other credit agencies. Firstbeat shall not be liable in any way if such financial institution or credit agency refuses to accept or honour the credit card for any reason.
You shall carry any and all of Your own costs including but not limited to telecommunication expenses and Firstbeat takes no responsibility for the payment of such fees. Firstbeat is entitled but not obliged to take a reasonable insurance to the Products to cover the possible damages or loss of Products during mailing or shipping.
We use the following payment processors to ensure that the payment processes are safe and verified:
PayPal (R.C.S. Luxembourg B 118 349), which enables individuals and businesses to send and receive electronic money online.
Paytrail Oyj (FI2122839), which provides netbank related payment transfer services in co-operation with Finnish banks and credit institutions. Used in Finland only.
Payment with PayPal
PayPal enables easy and secure online payments. You can pay through your PayPal account or directly with a credit or debit card.
PayPal acts as a payment service provider and is responsible for the transmission of transaction information to Financial Processors.
Firstbeat Technologies Oy acts only as the marketer of services and products and delivers the products to buyers. More information about PayPal buyer protection. Customer undertakes to agree upon terms and conditions and meet the eligibility requirements of PayPal service as set forth in the user agreement.
Payments with Paytrail available in Finland: Visa, Visa Electron, MasterCard or Finnish online banking:If you want to pay with Visa, Visa Electron or MasterCard cards, acts Firstbeat Technologies Oy only as the marketer of services and products and delivers the products to buyers. Paytrail Oyj is responsible for reclamations.
Paytrail Oyj acts as the seller in Visa, Visa Electron and MasterCard payments and the deal is made between the customer and Paytrail Oyj. The seller is responsible for all deal related obligations. Paytrail Oyj is also the payment recipient. Paytrail payments available in Finland only.
Innova 2 Lutakonaukio 7 FIN-40100 Jyväskylä
Telephone: +358 207 181830
Netbanks: Paytrail Oyj (FI21228397) provides netbank related payment transfer services in co-operation with Finnish banks and credit institutions. For consumer the service works exactly the same way as traditional web payments.
Value Added Tax (VAT) will be added to the Product prices, unless by the information provided by You, You are not liable to pay such tax.
Payable taxes are available to You when making the order. If You have any questions regarding payment, please contact us on email@example.com
As an example, Business Customer from European Union can purchase Products without the VAT with a valid VAT number. In order to purchase software or Products as a company, You must enter a valid Value Added Tax (VAT) number on the required field upon purchase.
If You wish to place an order as a Business Customer and require a Purchase Order, please send us the PO number firstname.lastname@example.org
For outside-EU deliveries, a Customer is responsible for customs costs. Please note that country-specific customs costs are added to the final sum upon collecting the item from local customs.
You shall adhere to any relevant export control laws and regulations (including, but not limited to the U.S. export control laws and regulations) and shall not export or re-export any information or Products received from Firstbeat.
Refunds and Exchanges
Return policy of Firstbeat Products shall be as set forth below. Firstbeat shall not be liable for any costs and expenses related to Product returns, unless otherwise agreed in advance.
1) Firstbeat Products
Purchases from EU
A return policy of 14 days applies. If a Consumer Customer has not notified and returned the Products to Firstbeat within the period of 14 days after receiving the Products, Firstbeat does not accept any return. In case You wish to return Products, please contact: email@example.com for instructions on how to return the Product.
No return policy applies. Only Products that are damaged can be returned or exchanged within the period of 14 days after receiving the Products. If a Business Customer has not notified and returned the Products to Firstbeat within the period of 14 days after receiving the Products, Firstbeat does not accept any return. In case You have received a damaged Product You wish to return, please contact us for further instructions: firstname.lastname@example.org
Purchases outside EU
No return policy applies.
2) Firstbeat Software
No return policy applies. We recommend downloading a free trial version of our software products at www.firstbeat.com before purchasing the software license.
You shall inspect the delivery packet when picking up at the presence of post-office employee. In the event that the packet has damaged and the ordered Product(s) have damaged during the delivery, You shall immediately make a written reclamation at the post office. Thereafter, please contact our customer service (email@example.com) for further instructions.
Firstbeat shall be liable for defects or loss of Products during the shipment, subject to limitation of liability set forth in these Terms. If the Product is returned pursuant to these Terms and any defect or loss of returned Product is caused during the shipment, the Customer or the shipping company shall be liable for any such damage occurred.
In case the Product is damaged during mailing or shipping or the Product does not operate at the time of receiving of the Product You shall make a written reclamation to Firstbeat within 14 days from receiving the Product.
Risk of damage to or loss of Products shall pass to You when Firstbeat has delivered the Products to the address provided by You. The title to the Products (excluding any intellectual property rights) shall pass to You when Firstbeat has delivered the Products to the address provided by You and a valid payment of the Products has been carried out by You.
You shall read carefully Firstbeat Device Warranty as set forth, product manuals and any user instructions provided by Firstbeat before using the Products.
In the event the delivery contains certain software products, the warranty is in accordance with the applicable license agreement and all other warranties are hereby excluded.
Protection of Privacy
Personal information submitted by Customer during registration procedure will be gathered to an individual personal data file (hereinafter “Register”). Firstbeat is entitled to collect information in accordance with applicable personal data legislation, including information of the use of Firstbeat shop and information provided by Firstbeat’s cooperation partners, provided that they are entitled to provide such information and Firstbeat is entitled to use it.
Information will be used solely in accordance with the valid description of the file. Information may be exploited for direct marketing via telecommunications to the extent allowed by applicable legislation.
Firstbeat does not disclose information without Customer’s consent to any other entities than entity performing IT services to Firstbeat in a manner that the data is identifying a person, except if required by law or court or administrative order, or if it is necessary for the purposes of preventing a breach of law, user terms or good practices.
Consumer Customer has always right to inspect his information and request change his information by contacting Firstbeat. Customer has a right to opt-out use of his information for direct marketing purposes. Customer is obligated to make a written or electronic statement to Firstbeat in accordance with applicable legislation.
Firstbeat shall not be liable for any delay or non-performance of its obligations hereunder in the event and to the extent that such delay or non-performance is due to an event of Force Majeure. For purposes hereof, events of Force Majeure are events beyond the control of Firstbeat whose effects are not capable of being overcome without unreasonable expense and/or loss of time to Firstbeat. Events of Force Majeure shall include (without being limited to) war, acts of government, export regulations, acts of terrorism, natural disasters, fire and explosions.
Firstbeat’s liability shall be limited as follows: a) Firstbeat is not liable to You or any third party in any way for loss of credit card. Firstbeat takes no liability for any unauthorized use of credit card; b) Firstbeat is not liable for the non-availability of this Site caused by transmission problems. Firstbeat assumes no liability of any delay, data loss or damage during the transmission from this Site to You.
Customer shall be liable to ensure the compatibility of Products (if any) with Customer’s technology and devices and the fitness of Products for Customer’s intended purpose. In particular, Firstbeat is not liable for fitness of Products for Your intended purpose, and Firstbeat shall not be liable for any use of Products as professional services or for other commercial purposes.
IN NO EVENT SHALL FIRSTBEAT BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTIAL OR CONSEQUENTAIL DAMAGE, INCLUDING BUT NOT LIMITED TO LOSS OF SALES, BUSINESS OR DATA, LOST PROFITS OR LOSS OF USE OR OTHER EQUIPMENT OR GOODWILL. THE OVERALL LIABILITY OF FIRSTBEAT FOR ANY AND ALL CLAIMS ARISING OUT OF OR IN CONNECTION WITH THE PURCHASE OF THE PRODUCT SHALL NOT EXCEED THE PRICE OF THE PRODUCTS DELIVERED. IRRESPECTIVELY OF THE VALUE OF AN INDIVIDUAL PURCHASE THE OVERALL LIABILITY OF FIRSTBEAT NEVER EXCEEDS 50 €
These Terms, any order and communication between You and Firstbeat shall be given in English language, unless Finnish is used with Finnish-speaking Customers.
All disputes arising out of or in connection with these Terms shall be finally settled in district court of Keski-Suomi, Finland. Irrespective to the aforesaid, all disputes related to Consumer Customer shall be settled in accordance with Finnish Consumer Protection Act. Consumer Customer is also entitled to bring the case to the Consumer Disputes Board in Finland.
Except as expressly required by mandatory law, laws of Finland apply to these Terms, with exception of choice of law provisions and UN Convention on Contracts for the International Sale of Goods.
These Terms shall be valid until further notice. The agreement between You and Firstbeat terminates without notice when both parties have fulfilled their obligations.
Support and Additional Information
For matters related to purchases from Firstbeat Shop, please contact firstname.lastname@example.org
For payment related matters, please contact email@example.com
For matters related to service and technical support, please contact firstname.lastname@example.org
Contact information of Firstbeat
Yliopistonkatu 28 A, 40100 Jyväskylä, Finland
Tel: +358 (0)20 7631 660
Fax. +358 (0)14 213 354
General Terms for Firstbeat Lifestyle Assessment Service 01/2016
These general terms for Firstbeat Lifestyle Assessment service (hereinafter “General terms”) shall apply to delivery agreements of Firstbeat Lifestyle Assessment Service between Firstbeat Technologies Ltd (”Supplier”) and its customer, which desires to obtain the access and right to use Firstbeat Analysis Server as a Service (“Customer”).
“Additional Service” shall mean any additional or Customer-specific service different from the scope of the Service. Additional Service is supplied by the Supplier to the Customer on its request due to Customer’s field of business or other Customer-related reasons. Any terms and fees of Additional Service are to be agreed separately on case-by-case basis.
“Customer Data” shall mean all of the data collected, inserted and stored on the Service by the Customer or the User/Users, for instance personal details and heart rate measurement data of Customer’s customers or other individuals.
“Documentation” shall mean applicable written or electrical material in any medium relating to the operation or functionality of Service including without limitation user’s manual or handbook provided by the Supplier.
“Error” shall mean that software or Service is not functioning from its essential parts as described in the Documentation.
“Main User” shall mean an individual person designated by the Customer to administer and supervise the use of the Service within the Customer’s organization.
“Operating Environment” shall mean the hardware and other equipment as well as operating system software and other third party software and Internet access which are required for the use of the Service.
“Service” shall mean the granted access to Firstbeat Analysis Server as a service and agreed features of the Service through Internet as specifically agreed in the Agreement and/or specific offers by the Supplier.
“Firstbeat Analysis Server” shall mean the Supplier’s standard form software Firstbeat Lifestyle assessment offered as a service. Firstbeat Analysis Server is a tool for professional heart beat analysis as described in the Documentation.
“Update” shall mean a revised version of the Service for correcting error and faults appeared after publication of the previous version. Update may also include new features and functions.
“User/Users” shall mean individual persons authorized by the Customer to use the Service on behalf of the Customer.
“User ID” shall mean user names and passwords provided for the Customer by the Supplier. The number of the provided User ID’s is specified on the Agreement.
“User Training” shall mean mandatory training for Users designated by the Customer.
Subject Matter of Agreement
The General terms shall apply to each and all the agreements concerning Service, whenever applied for/or provided to the Customer, in addition to any specific terms executed and agreed between the parties. A precondition for the use of the Service is always a mutual, written or electronic order or other agreement between the Supplier and the Customer.
The General terms together with any specific terms in Firstbeat’s offer, delivery agreement or corresponding instrument constitute the entire agreement (hereinafter ”Agreement”) on Service, meaning the permission to access and right to use agreed features of Firstbeat Analysis Server as a Service tool for provisioning its own services to its customers as further set forth in the Agreement and the Documentation.
The Agreement sets forth the terms pursuant to which the Customer and User/Users are entitled to use agreed features of Firstbeat Analysis Server from the server of the Supplier for purposes of offering services to its customers.
The Service is designed for professional use. The Users are entitled to do analysis to the Customer’s customers in accordance with the Agreement and the Documentation.
The Service is producing individual and printable reports of each analysis in format further described in the Documentation. The Service is available from the Supplier’s server through suitable computer devices. The Service is available via User ID’s granted by the Supplier.
The scope of the Agreement and contents of the Service are expressly set forth in the Agreement and Documentation. Any expand or alteration to the scope of the Service and Documentation shall be considered as Additional Service and thus shall be subject to a separate agreement between the parties.
General Obligations of the Parties
The Supplier shall offer the Service for the use of the Customer and User/Users as described in the Agreement. Unless otherwise agreed, the Supplier is entitled to offer the Service from Finland or other EU countries. The Supplier is responsible that the Service is provided substantially in compliance with the Agreement. The Customer is responsible for selection, use of the Service to its purposes and costs thereof according to applicable legislation in the Customer’s territory, including fulfilling all regulatory requirements when using the Service.
All payment will be made by the Customer in accordance with the Agreement. The Customer is obligated to use the Service in accordance with the Agreement and applicable Documentation in exchange with full payment of applicable payments. The Customer is responsible for both (i) actions of User/Users using the Service; (ii) interpretations and analysis made by Customer or its representatives from the reports provided by the Service; and (iii) obtaining all consents and permissions necessary according to applicable data protection or privacy legislation. If due to Customer’s field of business or any other Customer-related reason a special legislation regarding, for instance, patient documents is to be applied, the Customer shall be solely responsible for obtaining all necessary consents and permissions.
The Customer is obligated to acquire and maintain Operating Environment for the Service in accordance with the minimum requirements of the Supplier. In the event that the Customer requests for Supplier’s assistance in interpreting or analysing the reports provided by the Service, it shall be separately agreed as Additional Service.
The Customer has selected the technical solution for the Service as further set forth in the Agreement. Provided that due to Customer’s field of business or other Customer-related reasons the Customer has a need for additional data protection level, it shall be separately agreed as Additional Service. The Customer acknowledges and agrees the risk of interruption of the Service and uses its reasonable efforts to prevent damage to User/Users activities caused by interruptions on Internet access or other malfunction on operating environment or temporary downtime of the Service.
The Customer is obligated to acquire and provide User Training as further separately agreed. User training is a prerequisite for use of the Service by the Customer. The Customer shall appoint a Main User to administer and supervise the use of the Service within the Customer’s organization.
The Customer is obligated to ensure that Users keep User ID’s confidential. The Customer is always responsible of the misuse of lost User ID’s or any other misuse of User ID’s. In the event the use of User ID’s is in breach of the Agreement (e.g. same pre-paid code is used for more than one measurement), the Supplier is entitled to charge additional fees. The Customer is obligated to deliver the Supplier all information necessary in a form and time schedule agreed between the parties.
The Customer shall at its own cost provide the Supplier with adequate and accurate information in the agreed form and within the agreed time schedule, and handle the costs, expenses, routines, methods and practices related to the use of the Service (including maintenance).
Access to Service and Right to Use the Service
Upon terms and limitations and against full and timely payment of all applicable fees and charges Firstbeat Technologies Ltd grants the Customer a limited access and a non-exclusive, non-transferable right to use the agreed features of the Service by User/Users during the term of the Agreement via Internet from the server of the Supplier. Access to the Service is granted solely as set forth above. The Customer shall not: acquire any other rights for Service or distribute, rent, lease, loan, sublicense or resell the Service, software or accompanying Documentation or any part thereof or any access rights thereof nor the license or any copy of it; or reverse engineer, decompile, disassemble, re-engineer, or otherwise create or attempt to create or permit, allow, or assist others to create the source code of the software, or the software’s structural framework, or to use the software in whole or in part for any purposes except as expressly set forth herein as being permissible for the Customer pursuant to the Agreement; or modify, enhance or in any other manner change the software, the Service or accompanying Documentation; Remove, obliterate or otherwise alter Firstbeat Technologies Ltd’s or third parties’ proprietary rights notices; Assign or transfer any of its rights and obligations to the Service and/or software arising from the Agreement or any User ID’s or corresponding information to any third party without the prior written consent of Firstbeat Technologies Ltd.
The Supplier shall have the right to deny the access to the Service if the Service is used against the law, orders of the authorities, good customs, the Agreement, Documentation or any written instructions given by the Supplier, or in case the Customer defaults payments or any other fees due and payable to the Supplier and which remains unpaid for fourteen (14) days’ notice of such breach. The Supplier is obligated to notice the Customer in case of access is denied. Forbidden use of the Service is, for instance, misuse of the User ID’s, Users or attempted entering into other software, misuse of Customer Data or file locating in the Service not described in the Agreement.
Delivery and Acceptance of the Service
The Supplier shall deliver to the Customer User ID’s and makes all measures necessary for opening user account and granting access to Users.
The delivery of Service is deemed to be accepted by the Customer, unless the Customer delivers the Supplier a written notice itemizing the errors within fourteen (14) days from the date when the Supplier has granted the Customer access to the Service. In any event the delivery of Service is deemed to be accepted when (i) the Supplier has corrected the Errors reported by Customer to Supplier; or (ii) the said fourteen (14) days period has elapsed; or (iii) the Customer takes the Service into production use by offering the Service to its customers.
The Supplier shall at its sole discretion either correct the Errors reported by the Customer, or terminate the Agreement in which event the Supplier shall as a sole remedy to the Customer refund the payments acquired by the Customer from the Supplier, reduced with amount of analysis which have been made before termination. Irrespective of the aforesaid, all minor errors which have no substantial impact for use of the Service do not prevent acceptance of the Service. The Supplier shall use its commercially reasonable efforts to fix such minor errors when publishing Updates.
Supplier’s Obligations Concerning Error of Service
The Supplier’s warranties and obligations concerning maintenance, support and availability of the Service are exhaustively defined in this clause.
The Supplier shall perform monitoring of the Service according to its then current practices to prevent malfunctions or downtimes of the Service. The Supplier has a right to temporarily interrupt provision of the Service for maintenance purposes. Such interruptions will be made, to the extent possible, during the evenings or weekends. The Supplier informs the Customer concerning scheduled interruptions in the Service, if possible.
An Error of the Service occurs if the Service substantially deviates from the Documentation. In the event of an Error, the Customer shall inform the Supplier without undue delay. The Supplier shall enter into corrective measures at latest on next working day. The Supplier continues corrective measures during normal office hours until the Error is corrected.
The remedy set forth herein is subject to full compliance with the Operating Environment requirements. The Supplier shall perform corrective measures at its own offices.
In the event the Customer requests the Supplier to perform corrective measures at the Customer’s location, the Customer shall reimburse all reasonable travelling costs, including travel time.
The Supplier is not liable for any errors which are a consequence of use of the Service against terms and conditions of the Agreement, Documentation or written instructions of the Supplier, or which are consequence of use of other products than supplied by the Supplier, or any change to the Service. In the event an error reported by the Customer is not belonging to responsibility of the Supplier, the Supplier is entitled to charge the Customer of the investigation such reported error.
The Supplier does not warrant availability of the Service, in particular the Supplier is not liable for any downtime of the Service which is beyond reasonable control of the Supplier, including without limitation to interruptions caused by telecommunications connections and all malfunctions by Users.
The Supplier uses its commercially reasonable efforts to develop the Service and publish Updates of the Service, but is not liable for any such activities. The Supplier is entitled to replace the previous version of the Service by Update, provided that Update contains corresponding features with the previous version. In such event the Customer is obligated to make necessary updates for Operating Environment (such as updates to browser software) at its sole cost and risk. In the event the Customer refuses to take Update into use, the Supplier may provide support to previous version at its sole discretion and provided that the Customer pays additional costs incurred. For avoidance of doubt, electing not to take Update version does not release the Customer to pay payments according to this Agreement.
THE SUPPLIER PROVIDES SOFTWARE, SERVICE AND ACCOMPANYING MATERIALS “AS IS” AND HEREBY SPECIFICALLY DISCLAIM ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED.
Prior to any use of the Service the Customer shall procure that User Training is fulfilled in a scope agreed in the Agreement. The Customer warrants that each User shall obtain necessary knowledge of the use of the Service and results provided by the Service. The Customer agrees ac- tively to follow updates and detailed information of the use of the Service provided by the Supplier.
THE FOREGOING WARRANTIES SET FORTH THE ENTIRE LIABILITY OF THE SUPPLIER AND THE FOREGOING WARRANTIES ARE THE ONLY EXPRESS WARRANTY MADE TO THE CUSTOMER AND/OR USERS AND/OR END- USERS. SUPPLIER HEREBY SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. THE SUPPLIER DOES NOT WARRANT THAT ALL DEFECTS CAN BE CORRECTED, OR THAT THE OPERATION OF THE SOFTWARE WILL BE ERROR FREE AND/OR UNINTERRUPTED.
The Customer shall point a contact person to present the Customer and be responsible for ensuring a fluent com- munication between the parties to the Agreement. Such communication includes obligation to provide all neces- sary information regarding the Service for the Supplier and to review the applicable Documentation.
Fees and Payment Terms
All payments will be made by the Customer in accordance with the Agreement executed between the Customer and the Supplier and/or its resellers. For the purposes of this clause, payments means sums itemized in electronic or- dering procedure (such as web shop or other correspond- ing means) or price list delivered by the Supplier and/or its resellers. In absence of the Agreement, the prices shall be in accordance with the Supplier’s then current price list. The fees may consist of following:
Assessment fee, which shall be charged from each as- sessment started by the Customer. Only expressly agreed promotional or corresponding assessments may be free of charge, if expressly defined in the Agreement.
Monthly subscription fee in accordance with the Agree- ment from each month during the validity of subscription or Agreement.
Sales or rental price of devices in accordance with the Agreement.
User Training, additional training and other fees as agreed in the Agreement or otherwise ordered by the Customer.
Except as otherwise agreed in the Agreement, all pay- ments will be charged monthly. All training and delivery of equipment will be invoiced upon delivery. Payments shall be made in Euro or USD currency according the of- fer. As regards web shop, all payments will be made upon purchase transaction as further set forth in web shop. Pre- payment contains items specifically included in service pack offered.
Other services (such as additional analysis or subscription months) will be charged accordance with the Agreement or in absence of agreed price, monthly in in accordance with then current price list.
Unless otherwise agreed, the Supplier has a right to change prices by submitting a written notice no later than 30 days prior to the effective date of the price increase. In such event the Customer is entitled to terminate the Agreement on the effective date by submitting a written notice of termination within fourteen (14) days from the price increase announcement by the Supplier.
Value added tax or corresponding tax will be added to all prices according to applicable legislation. Unless other- wise agreed, payment term for all payments will be 14 days. In the event of delayed payment, the Supplier is entitled to invoice reasonable collecting charges and delay interest according to annual interest of 8%.
User Training, Service Support, Additional Training
User training: The Supplier provides the User Training as defined in the Agreement.
Service support: The monthly fee includes at maximum two (2) hours of Service support per month either by e- mail or telephone concerning use of the Service and trou- bleshooting. In the event of non-urgent issues the service requests shall be made in the English language to ad- dress: Telephone support is available during normal office days is open 9am – 4pm Finnish time (GMT +2), tel. +358 20 763 1664. The Supplier shall use its reasonable efforts to provide services but does not give any warranties or service level, unless otherwise agreed.
Additional training: In addition to the User Training, which is a prerequisite for the Service, the parties may sepa- rately agree upon additional training. Unless otherwise agreed, the Supplier is entitled to invoice the Customer according to the current price list.
Limitation of Liability
In the event the Supplier is in substantial breach of this Agreement and does not correct such breach within thirty
(30) days from the written notice from the Customer, the Supplier is obligated to compensate damages incurred as a consequence of such breach. Except in the event the damage is caused intentionally or by gross negligence, Supplier’s liability shall in no event exceed 15 % of the amounts actually paid by the Customer to the Supplier during the period of twelve (12) months before occur- rence of the breach. Except in the event the damage is caused intentionally or by gross negligence, in no event is the Supplier liable for any indirect or consequential dam- ages incurred to the Customer.
The Customer acknowledges and agrees that results of assessments created by the software may, based on var- ious reasons including without limitation to unstable con- ditions, induce inaccurate or faulty results or results which are open to various interpretations. The Supplier there- fore does not warrant that the software fits for the in- tended purpose of the Customer and its end-users and is not liable for any costs and damages incurred as a conse- quence of use of the software. In the event the Supplier informs the Customer of any factors which cause unstable results of assessment, the Customer is obligated to take such information into account and to ensure that the Cus- tomer’s customers approve such conditions. In the event the Customer’s customer presents any claims against the Customer concerning faulty results, the Customer is liable for such claims and holds the Supplier harmless from such claims. In the event the fault is a consequence of defect in the software, as evidenced by the Customer, the Sup- plier is obligated to refund reasonable part of price reduc- tion paid by Customer to its customers, provided that the Supplier and Customer agree upon such payment before- hand. Any such payment is subject to limitations of first chapter of this clause.
Neither party shall be liable for delay and damage caused by an impediment beyond the party’s control and which the party could not have reasonably taken into account at the time of conclusion of the Agreement and whose con- sequences the party could not reasonably have avoided or overcome. Such force majeure events shall include, if not proven otherwise, inter alia, war or insurrection, earthquake, flood or other similar natural catastrophe, in- terruptions in general traffic, data communication or sup- ply of electricity, import or export embargo, strike, lock- out, boycott or other similar industrial action. A strike, lockout, boycott or other similar industrial action shall also be considered, if not proven otherwise, a force majeure event when the party concerned is target or a party to such an action. Each party shall without delay inform the other party in writing of a force majeure event and the termination of the force majeure event.
The Service, software and Documentation are confidential information of the Supplier. The Customer agrees and un- dertakes to maintain such materials in confidence and not to use for any other purposes than the purpose of this Agreement any material delivered by the Supplier to the
Customer. The Customer is not allowed to disclose any such material or information to any third party.
The Supplier agrees to hold in confidence all Customer Data and other non-public information obtained from the Customer.
The confidentiality obligations shall remain in force during validity of this Agreement and five (5) years thereafter. Nothing in this clause is intended to decrease the protec- tion of applicable legislation concerning confidential infor- mation. The parties shall maintain the content of the Agreement confidential, unless expressly otherwise agreed.
The parties shall use all reasonable efforts to prevent the unauthorized use, copying, publication or dissemination of the confidential information of the other party.
Intellectual Property Rights
The Supplier retains all rights to the Service and related technology including, without limitation, the title and in- terest to and in the software and all informational, intel- lectual property, industrial property and proprietary rights. Firstbeat Technologies Ltd neither grants nor oth- erwise transfers any rights of ownership or copyrights in the software or Documentation to the Customer, and the Customer shall have only such license rights to use the software as are specified herein. Software and other prod- ucts are protected by copyright, trade secret, industrial and other intellectual property laws and treaties. The Cus- tomer shall not sell, transfer, publish, display, disclose or otherwise make such materials available to others.
In the event authorized use of the unmodified software or Service should infringe upon the intellectual property rights of a third party due to the reason attributable to the Supplier, and at the Supplier’s opinion such infringe- ment prevents or endangers to prevent the Customer or the Users to continue the use of the Service or any part thereof, the Supplier may either procure the right to con- tinue using the Service, or replace, or modify it to make it non-infringing. If none of the aforementioned options is reasonably feasible to the Supplier, the Supplier shall ter- minate the Agreement. As a consequence of such termi- nation the Customer shall cease using the infringing Ser- vice or portions of it and is not obligated to pay any fur- ther payments. The Supplier is not obligated to refund any fees which are compensation of use of the Service from the period before termination. As a sole remedy to the Customer the Supplier refunds the payments corre- sponding the time period during which the Service has not been in use due to such infringement.
Term of Agreement
The Agreement shall be in force in accordance with the Agreement. In the event the Agreement is in force until further notice, the termination period is 12 months.
Upon expiration of this Agreement the Supplier is entitled to prevent the end-user’s access to the Service and delete Customer Data. Upon expiration of the Agreement the Supplier shall without additional costs to the Customer maintain Customer Data for one (1) month period, and after that the Supplier is entitled to delete such Customer Data. Upon request of the Customer the Supplier may maintain such Customer Data, if allowed by applicable legislation, including legislation concerning personal data. Provided that due to Customer’s field of business and/or applicable legislation the Customer Data should be maintained longer than stated above, such maintaining is sub- ject to a separate agreement as Additional Service. In the event the Customer desires to obtain a copy of Customer Data and the Customer presents sufficient grounds and legal authorization to such transfer, the Supplier may transfer such Customer Data to the Customer subject to separate reasonable compensation of costs.
Regulatory Requirements. Privacy and Data Protection
The Customer acknowledges that the Service is standard form and that the Customer is solely liable for analysis concerning regulatory requirements (e.g. applicable leg- islation in the Customer’s territory, field of business etc). In the event it is necessary to make any customization work or order any additional services, such issues must be agreed in the Agreement.
The Customer hereby warrants that the Customer has ob- tained all consents and permissions necessary according to applicable data protection or privacy legislation (i) for collecting, processing and storing information and data concerning the individuals to be tested by the Customer in the software and/or Service; and (ii) in the event any services are requested from the Supplier, for transferring the said data to the Supplier’s data center located in the territory of Finland or elsewhere in the European Union. The Customer hereby warrants that it has taken any and all needed organizational and other actions to ensure that the technical and other performance of the Service is in accordance with the local applicable laws and other rele- vant regulations. The Customer warrants that both its cur- rent and planned Customer Data processing is in conform- ity with the local legislation, including but not limited to regulation of data transfer from a country to another. Use of the Service in any other form than expressly stated in the Agreement and Documentation (e.g. locating the Ser- vice in the territory of the Customer) is subject to sepa- rate agreement as Additional Service. In the event the Customer has not obtained all necessary consents, or in the event the Customer at its sole discretion decides not to collect, process and store personal data, the Customer agrees to insert, process and store solely anonymous data from each individuals, which is not subject to data protec- tion or privacy legislation (e.g. by using nick-names or corresponding numbers which are not related to individu- als).
If any matter in Customer’s responsibility causes extra costs to Supplier, shall the Customer be fully liable for compensating such costs to the Supplier.
Unless otherwise agreed, the Customer is a data control- ler (as defined in Directive 95/46/EC of the European Par- liament and of the Council of 24 October 1995 on the pro- tection of individuals with regard to personal data and on the free movement of such data or corresponding legisla- tion) with respect of Customer Data and shall fulfill all ob- ligations pursuant to applicable data protection and pri- vacy laws. The Supplier shall act as data processor for purpose of provision of the Services for the Customer. In the event the Customer’s obligations set forth in this clause constitute costs or obligations to the Supplier, the Customer agrees to compensate such costs to the Sup- plier.
The Supplier shall deliver to the Customer basic infor- mation concerning data processing in the Service. The Customer is, however, obligated to maintain all register extracts and other documents required by applicable law.
In the event it is necessary to agree upon changes for this Clause based on field of business of the Customer or na- ture of activities of the Customer or other reasons, such changes must be agreed in the separate agreement be- tween the parties. Furthermore, in the event the Supplier shall have an active role other than technology provider’s role, any terms and conditions must be expressly agreed in the Agreement.
Marketing Communications. Firstbeat Brand.
The Supplier and the Customer may jointly publish press releases concerning the use of the Service. Unless ex- pressly prohibited by the Customer, the Supplier is enti- tled to use the Customer as a reference. The Supplier is entitled to forward a limited amount of its potential new customers to request user experiences from the contact person designated by the Customer.
Each party is entitled to set a link from its own Web page to the Web page of the other party.
The Customer is entitled to use in its marketing activities pictures and other marketing material which is available at download section offered by Firstbeat Technologies Ltd. The Customer shall use the Supplier’s trade-marks, trade names or any other symbols which are available in the download section only for the purpose of identifying and advertising the Service, within the scope of the Agreement and in the Supplier’s sole interest and prior express consent. All such use must be in strict compliance with the Supplier’s instructions of use of such material.
The Customer shall neither register nor have registered any trade-marks, trade names or symbols which are sim- ilar to those of the Supplier’s. The Customer is not allowed to add its own name to any material of the Supplier with- out the Supplier’s written permission or terms defined in the download section of the Supplier’s web pages. The Customer’s right to use the Supplier’s trade-marks, trade names, symbols or other material shall cease immediately upon the expiration or termination of this Agreement.
The Customer must either by displaying the Supplier’s logo or otherwise clearly identify in its marketing commu- nication (at minimum service description and Web pages) that it is using the software when providing services to its customers. The Customer shall follow reasonable instruc- tions provided by the Supplier from time to time.
The Customer shall deliver or authorize the Supplier to provide a copy of certain results of measurements for sta- tistical and research and development purposes. The de- livery of any such data shall be performed periodically by the Supplier without any payment obligations from a party to the other party. For avoidance of doubt, any such data shall contain solely statistical information (such as age and gender) and measurement results. Any such data shall NOT contain information which might be combined to any natural person NOR any information which makes it possible to identify any individual person behind the data.
This Agreement shall be governed by and construed in accordance with the laws of Finland, excluding its choice of law provisions.
Any dispute arising out of this Agreement or a breach or alleged breach, shall be finally settled in district court of Helsinki, Finland.
The Customer shall not be entitled to assign or transfer all or any of its rights, benefits and obligations under this Agreement without the prior written consent of the Sup- plier. The Supplier is entitled to transfer the Agreement as part of total or partial transfer of its business.
A failure to exercise, or any delay in exercising, on the part of either party, any right or remedy hereunder shall neither operate as a waiver thereof, nor shall any single or partial exercise of any right or remedy prevent any fur- ther or other exercise thereof or the exercise of any other right or remedy.
If, at any time, any provision of the Agreement is deemed by a court of competent jurisdiction to be illegal, invalid or unenforceable in any respect, the legality, validity or enforceability of the remaining provisions shall in no way be affected or impaired thereby. The invalid provision shall be replaced by a valid one which achieves to the extent possible the original purpose and commercial goal of the invalid provision.
No party shall be deemed by operation of the Agreement or otherwise to be the agent or representative of the other party for any purpose hereunder whatsoever. The parties shall at all times be considered independent contractors. No party shall have any right or authority to assume, cre- ate, or incur any liability or obligation of any kind in the name of or on behalf of the other party except in accord- ance with the provisions hereof, or as may otherwise be agreed by the parties in writing.
A breach by one party of any of the promises or agree- ments contained in this Agreement may result in irrepa- rable and continuing damage to the other party for which there may be no adequate remedy at law, and the other party is therefore entitled to seek injunctive relief as well as such other and further relief as may be appropriate.
Headings are used for the purposes of references only and shall not affect the interpretation of the Agreement.
The Agreement and all correspondence between the par- ties and relating hereto shall be in the English or Finnish language unless the parties agree to the contrary, in re- spect of some specific documents.
These General terms shall be valid from 1 January 2016.