Service Agreement

Emooter is the owner of the Emooter platform and service provided for companies for the purposes of conducting personnel surveys and analyzing for example employee satisfaction.

By subscribing to the Emooter platform and online service (hereinafter "Emooter Service"), the customer subscribing to the service (the "Customer") will be bound by this Service Agreement (hereinafter the "Agreement") with Emooter Ltd (Business ID: 2801778-7) ("Emooter").

By finalising the subscription, you hereby warrant to have the required authority to subscribe to the Emooter Service on behalf of the Customer and to make the subscription payment on behalf the Customer.

You shall read this Agreement with due care. By finalising the subscription to the Emooter Service you accept the terms of this Agreement in their entirety as part of the subscription procedure. By clicking the box referring to this Agreement in the Emooter Service, a binding contract is formed between the Customer and Emooter (each party is hereinafter individually referred to as the "Party" and together as the "Parties"), to which the terms set forth herein are applied.

In addition to this Service Agreement, separate Terms of Use are applied to the use of the Emooter Service and to the Emooter website accessible at https://www.emooter.com.

RIGHT TO USE THE EMOOTER SERVICE

Subject to due payment of the general subscription fee valid at the time of the conclusion of this Service Agreement and set forth in the pricelist available on the Emooter website as well as compliance with the terms agreed herein, Emooter grants and the Customer hereby accepts a limited, non-exclusive, non-transferable, and non-sublicensable right to the Customer to use the Emooter Service during the term of this Agreement for the purposes set out herein.

RESTRICTIONS OF USE

The Customer may use the Emooter Service only and strictly in accordance with the terms of this Agreement and the Terms of Service.

Unless otherwise permitted in this Agreement, the Customer may not:

  1. circumvent or attempt to circumvent any usage control features of the Emooter Service;
  2. probe, scan or test the vulnerability of the Emooter Service; or
  3. disrupt other users of the Emooter Service or use the Emooter Service for phishing or spamming.

SERVICE

Emooter may make modifications or changes to the Emooter Service at any time at its sole discretion and without notifying the Customer thereof provided that such changes do not materially affect the Customer or the Customer’s use of the Emooter Service. If Emooter introduces changes materially affecting the Emooter Service, Emooter will notify the Customer thereof in advance in writing and the Customer is entitled to terminate this Service Agreement and the subscription of the Emooter Service in case the Customer does not accept the changes.

Except as specifically provided under this Agreement, the Emooter Service is provided "as is" and with the functionalities available at each time without warranty of any kind, either express or implied, including but not limited to the warranties of merchantability and fitness for a particular purpose.

The Emooter Service may create or generate certain analyses and results regarding e.g. employee satisfaction and general workload of the employees. Emooter is not liable for any deficiencies or inaccuracies in the analyses generated by the Emooter Service or the usability of such analyses and results. The use and exploitation of any analyses or reports is the sole responsibility of the Customer.

GENERAL OBLIGATIONS OF THE CUSTOMER

The Customer is responsible for preparing the Customer’s hardware, connections, software and data systems to meet the operating environment of the Emooter Service and for ensuring that the Emooter Service fulfils the Customer's intended purpose.

For the avoidance of doubt, the Customer is responsible for all the data it enters into the Emooter Service and the validity and accuracy thereof.

SUBSCRIPTION MODEL AND PAYMENT OF THE SUBSCRIPTION FEE

The functionalities of the Emooter Service set out in the Terms of Service and in the service descriptions included in the Emooter Service become available to the Customer through subscription to the Emooter Service and after the payment of the applicable subscription fee valid at the time of the subscription. The subscription fee may vary depending e.g. on the amount of users or how widely the Emooter Service is in use in the Customer’s organization and other possible additional functionalities chosen by the Customer. The amount of the subscription fee is defined in the pricelist available in the Emooter Service and on the Emooter website. For the avoidance of doubt, the basic subscription fee entitles the Customer to the basic functionalities of the Emooter Service as set out in the Terms of Service, service descriptions and the pricelist. The basic subscription fee does not entitle the Customer to receive, inter alia, separate customer support services or consultation services. The Customer may acquire additional functionalities or services for the prices set forth in the pricelist or as separately agreed between the Parties.

Emooter shall be entitled to adjust the subscription fee of the Emooter Service by notifying the Customer of the change in writing at least 30 days before the effective date of the change. The change shall not affect the subscription fee for billing periods commenced before the effective date of the change. If the Customer does not accept the price change, the Customer may terminate its subscription before the commencement of the next billing period. If the Customer does not terminate the subscription, the subscription shall automatically continue with the amended price and such price shall apply for the Customer’s subscription.

Payment of the subscription fee shall be conducted with a valid credit card by submitting the relevant credit card information, as required in the Emooter Service, in connection with the subscription. If a payment cannot be charged successfully, due to e.g. expiration of the registered credit card or insufficient funds and the Customer does not provide Emooter with valid credit card information, Emooter has the right to suspend the Customer’s access to the Emooter Service until valid credit card information has been provided by the Customer.

The applicable subscription fee for the Emooter Service will be charged from the Customer’s credit card. . The date of the charging shall be defined on the basis of the billing cycle the Customer has chosen and the date of the commencement of the subscription of the Emooter Service (after the free trial-period, if applicable). In some cases, the payment day may change, for example if it has not been possible to charge the Customer’s subscription fee due to insufficient funds.

All payments made in accordance with this Agreement are non-refundable.

AUTHORIZED USERS

Only the Customer’s authorized personnel are allowed to access and use the Emooter Service. In connection with the subscription, the Customer is granted an administration account with a user name and a password. The named administrator is entitled to invite other employees of the Customer both as administrators and as regular users of the Emooter Service by sending an access link to the employees’ email addresses.

Unauthorized use is strictly prohibited and the Customer shall be responsible for any unauthorized use of the Emooter Service conducted with the user names and/or passwords given to the Customer.

The Customer shall use all reasonable endeavours to prevent unauthorised access to, or use of, the Emooter Service. In the event of or if the Customer has reason to suspect any unauthorised access or use of the Emooter Service, or if any password has been revealed to a third party, the Customer shall promptly notify Emooter.

The Customer shall have the right to remove and manage the access rights to the Emooter Service from individual employees when necessary, such as in case of termination of employment of an employee.

AVAILABILITY

The Emooter Service will be available for the Customer's use 24 hours a day 7 days a week ("Service Hours") during the term of this Agreement.

Notwithstanding the above mentioned, Emooter shall have the right to temporarily suspend the provision of the Emooter Service during the Service Hours in accordance with the following, without any obligation to compensate any damages or service level failures to the Customer:

Emooter shall have the right to suspend the availability of the Emooter Service for a reasonable duration, if this is necessary in order to perform installation, change or maintenance work in respect of the Emooter Service. If Emooter suspends the Emooter Service for this reason, it shall inform the Customer of the suspension and the estimated duration of the suspension in advance and strive to minimize any inconvenience resulting from the suspension.

Emooter shall have the right to suspend the availability of the Emooter Service due to installation, change or maintenance work of Emooter network or due to severe data security risk to the Emooter Service or if required by law or public authorities. If Emooter suspends the Emooter Service for this reason, it shall inform the Customer of the suspension and the duration of the estimated suspension in advance or, if this is not reasonably possible, without undue delay after Emooter has become aware of such occurrence.

Emooter shall have the right to deny the Customer's access to the Emooter Service without any prior notice to the Customer, if Emooter suspects that the Customer burdens or uses the Emooter Service in a manner which may jeopardize the availability of the Emooter Service to other users. Emooter shall without undue delay inform the Customer of the reasons for such denial.

The Customer acknowledges that interruptions to the availability of the Emooter Service may also occur due to no fault of Emooter, for example, in the event of data connection disruptions. In the event of such interruptions, Emooter shall not have any obligation to compensate any damages or service level failures to the Customer.

CUSTOMER AND ACCOUNT DATA

In connection with the use of the Emooter Service the Customer may enter various data into the Emooter Service ("Customer Data").

The intellectual property rights and the title to the Customer Data shall belong to the Customer and the Customer shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data.

The Customer shall ensure that the use of the Customer Data does not infringe any third party intellectual property rights or violate any applicable laws or legislation.

The Customer hereby authorizes Emooter and its subcontractors to process and store the Customer Data for the purposes of providing the Emooter Service as well as for managing the customer relationship and developing the Emooter Service. The purposes of processing the Customer Data as well as practices relating to the processing and storing of Customer Data are defined in Emooter’s Privacy Policy available at the Emooter website www.emooter.com/privacy.

When processing Customer Data, Emooter undertakes to comply with the confidentiality obligations set forth in this Agreement.

In addition to processing of the Customer Data Emooter and its subcontractors process data on contact details, payment information and identification data on the Customer and its employees and other representatives ("Account Data").

If Emooter processes Account Data or any other data considered personal data on behalf of the Customer:

  1. the parties record their intention that the Customer shall be considered as the data controller and Emooter shall be a data processor in respect of such personal data;
  2. the Customer acknowledges and agrees that the personal data may be transferred to or stored outside of Finland in order to provide the Emooter Service and perform Emooter’s other obligations under this Agreement. However, the personal data shall not be transferred to or stored in a country outside of the EEA;
  3. the Customer shall ensure that the Customer is entitled to transfer the relevant personal data to Emooter so that Emooter may lawfully use, process and transfer the personal data in accordance with this Agreement on behalf of the Customer;
  4. the Customer shall ensure that the relevant third parties have been informed of, and have given their consent to, such use, processing, and transfer as required by all applicable data protection legislation;
  5. Emooter shall process the personal data only in accordance with the terms of this Agreement and the Privacy Policy as well as any lawful instructions reasonably given by the Customer from time to time; and
  6. each Party shall take appropriate technical and organisational measures against unauthorised or unlawful processing of the personal data or its accidental loss, destruction or damage;
  7. Emooter shall promptly provide such information to Customer, as Customer may reasonably require, to allow Customer to comply with the rights of data subjects, including access rights, or with information notices served by any data protection authorities.

Unless otherwise agreed in writing, Emooter shall provide the Customer with the Customer Data upon the Customer's written request within 30 days of Customer’s written request. Customer Data shall be delivered in an electronic form commonly in use. Emooter shall have the right to charge for the collection, processing and delivery of the information in accordance with its then current price list.

Emooter shall destroy the personal data identifiable to the Customer’s employees ("Data Subject") upon a Data Subject’s written request as set forth in the Privacy Policy.

Emooter shall within reasonable time delete all personal data relating to Customer’s employees or otherwise processed by Emooter for the purposes of this Agreement after the termination of this Agreement.

INTELLECTUAL PROPERTY RIGHTS RELATED TO THE EMOOTER SERVICE

All right, title and interest in and to all copyright, patent, trademark, design right, database protection right, and any other form of statutory protection of any kind (whether registered or unregistered) and applications for any of the foregoing respectively as well as any know-how, inventions, and trade secrets in or related to the Emooter Service and thereto related documentation (including modifications, if any) and all parts and copies thereof shall remain exclusively vested with and be the sole and exclusive property of Emooter and/or its subcontractors.

Except as expressly stated herein, this Agreement does not grant the Customer any intellectual property rights in the Emooter Service and all rights not expressly granted hereunder are reserved by Emooter and its subcontractors or licensors, as the case may be.

INTERFACES AND INTEGRATION TOOLS

For the avoidance of doubt, all interfaces and integration tools relating to the Emooter Service are provided on "as is" basis. Emooter may provide the Customer with such interfaces and integration tools as developed and implemented by Emooter from time to time. The Customer shall acknowledge that some interfaces or integration tools may be provided by third parties and/or may have connections or links to third party service providers’ software or systems. Emooter shall not, under any circumstances, be liable for the actions of such third parties or the parts of the interfaces or integration tools which are delivered, maintained or owned by third parties.

LIMITATION OF LIABILITY

Emooter shall not be liable for any indirect or consequential damages. Emooter's total aggregate liability under or in connection with this Agreement shall be limited to the aggregate subscription fees paid by the Customer for the Emooter Service for the last 6 months preceding the occurrence for which damages are claimed.

Nothing contained herein shall be deemed to limit Emooter's liability towards the Customer in the event of and to the extent that the liability results from wilful misconduct or gross negligence of Emooter.

Emooter has no other obligations or liabilities than those that have expressly been agreed upon in this Agreement.

TERM AND TERMINATION OF THE AGREEMENT

This Agreement shall enter into force immediately after the Customer has finalised the subscription to the Emooter Service and accepted this Agreement as part of the subscription procedure (by clicking the "I agree" box).

This Agreement shall stay in effect for the initial subscription period the Customer has chosen ("Subscription Period") and shall continue automatically for the duration of as many successive Subscription Periods as come into existence until the Customer terminates the subscription and consequently this Agreement by following the termination instructions in the Emooter service or the Emooter website. The Customer shall continue to have access to the Emooter Service until the end of the current Subscription Period in force when the termination is made and Emooter is entitled to charge the subscription fee for such Subscription Period. In case the Customer has chosen a free-trial period, the subscription will continue automatically in force after such free-trial period has ended and Emooter shall be entitled to charge the Customer for the relevant subscription fee.

For the avoidance of doubt, the subscription shall renew automatically for successive Subscription Periods until the Customer terminates the subscription.

Both Parties may terminate this Agreement with immediate effect by giving written notice thereof to the other Party, if the other Party fails to comply with any of the terms of this Agreement and does not remedy the failure within reasonable time.

For the avoidance of doubt, after terminating the subscription (and this Agreement) for any reason, the Customer shall lose its access right to the Emooter Service as soon as the current Subscription Period has ended. The Customer is nevertheless not obliged to return the reports and other materials generated by the Emooter Service and received by the Customer prior to the end of the said Subscription Period.

For the avoidance of doubt, upon termination of the subscription (and this Agreement) for any reason, Emooter shall not be obliged to refund any payments effected in accordance with this Agreement.

MISCELLANEOUS

Governing Law

This Agreement shall be exclusively governed by and construed in accordance with the laws of Finland without regard to its choice of law provisions.

Dispute Resolution

Any dispute, controversy or claim arising out of or relating to this Agreement, or the breach, termination or validity thereof, shall be finally settled by arbitration in accordance with the Arbitration Rules of the Finland Chamber of Commerce. The number of arbitrators shall be one (1). The seat of arbitration shall be Helsinki, Finland. The language of the arbitration shall be English. The arbitral proceedings and award shall be confidential.

Nothing in this Agreement shall be deemed to limit the Parties' rights to seek interim injunctive relief or to enforce an arbitration award in any court of law. With respect to any violation by the Customer of any intellectual property rights and/or confidential information of Emooter and/or payment obligations against Emooter under this Agreement, Emooter shall have the right, at its sole discretion, to seek remedies in public courts within any applicable territory.

Force Majeure

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 this Agreement and whose consequences 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, interruptions in general traffic, data communication or supply of electricity, import or export embargo, strike, lockout, boycott or other similar industrial action. A strike, lockout, boycott and other similar industrial action shall also be considered, if not proven otherwise, a force majeure event when the Party concerned is the 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 ceasing of such event.

Confidentiality

Neither Party shall disclose to third parties any material or information received from the other Party and marked as confidential or which should be understood to be confidential, and shall not use such material or information for any other purposes than those stated in this Agreement.

The confidentiality obligation shall, however, not be applied to material and information, (a) which is generally available or otherwise public; or (b) which the Party has received from a third party without any obligation of confidentiality; or (c) which was in the possession of the receiving Party prior to receipt of the same from the other Party without any obligation of confidentiality related thereto; or (d) which a Party has independently developed without using material or information received from the other Party.

Reference Use

Emooter shall be entitled to use the business relationship between Emooter and the Customer as a reference provided that the Customer has not explicitly denied such reference use.

Severability

If any part of this Agreement is held to be invalid or unenforceable by any court, tribunal or other authority having jurisdiction, this shall not affect the validity or enforceability of the rest of this Agreement. Instead, this Agreement shall be construed and interpreted so that its effect shall remain as close as legally possible to the effect it would have had without such invalidity or unenforceability.

Assignment

The Customer may not assign this Agreement or any rights or obligations hereunder without the prior written consent of Emooter. Emooter may at any time assign any or all of its rights under this Agreement to a third party by informing the Customer thereof in writing.