PONSSE MANAGER – GENERAL TERMS AND CONDITIONS

BY ACCEPTING THESE TERMS ON-LINE OR THROUGH A WRITTEN AGREEMENT THAT INCORPORATE THESE TERMS BY REFERENCE, YOU AGREE TO FOLLOW AND BE BOUND BY THESE GENERAL TERMS AND CONDITIONS FOR PONSSE MANAGER (“TERMS”).

1.	PARTIES AND SCOPE OF THE TERMS

These Terms shall be applied to the provision of PONSSE Manager (as defined in Section 2) by PONSSE Plc. (“PONSSE”) to the customer (“Customer”), unless otherwise agreed between the Parties in writing. 

PONSSE and Customer shall be referred to individually as a ”Party” and together as ”Parties”. 

2.	 DEFINITIONS

“Agreement” means the individual agreement for provision of PONSSE Manager to the Customer, entered into on-line or formed by a service agreement signed by the Parties and to which these Terms are attached.

”Confidential Information” means any information and material in whatever form disclosed to one Party by the other Party and either marked as confidential or which should be understood to be confidential. The structure and the user interfaces of PONSSE Manager and their underlying ideas are always considered as PONSSE’s Confidential Information. 

“Customer Data” means all visual, written or other form of information, material or data regarding, without limitation, the Customer’s forest machinery (including, without limitation, location data), production, business, customers and/or employees (including, without limitation, personal data), which is uploaded to, transferred through, generated, processed, analyzed, displayed and/or stored by PONSSE Manager.

“Equipment” means the forest machine(s) and/or other equipment of the Customer into which PONSSE Manager is installed.

“Intellectual Property Rights” means patents, inventions, trade secrets, rights in databases, trademarks, trade names, domain names, techniques, model rights, industrial designs, rights in know-how, methods, rights of author and copyrights (including without limitation the right to amend and further develop as well as to assign one’s rights), whether registered or not and including applications for grant of any of the foregoing and any other intellectual property rights and rights or forms of protection having equivalent or similar effect to any of the foregoing which may now or at any time hereafter exist anywhere in the world. 

“PONSSE Manager” means a web and/or mobile application -based operations management system accessed by the Customer via data network and the related user interface for the purpose of managing the Customer’s Equipment and producing various reports relating to the Equipment. PONSSE Manager is further specified in the Agreement and/ or in the service description of PONSSE Manager, the latter of which may be modified by PONSSE from time to time.

3.	IMPLEMENTATION AND USE; SYSTEM REQUIREMENTS

The Agreement has been concluded once the Customer (i) has provided the required information to PONSSE on PONSSE’s website or otherwise in writing for the implementation of PONSSE Manager, (ii) has accepted these Terms either on-line via data message or by written agreement and (iii) PONSSE has accepted the Customer as a user of PONSSE Manager. 

The Customer agrees that the certain login information of the Customer, such as the e-mail address and contractor ID, may be shared with other digital services provided by PONSSE, if such sites are accessed by the Customer via PONSSE Manager.

The Customer shall have the right to add and remove individual Equipment and/or users from PONSSE Manager and manage the Customer Data flow of any Equipment via the user interface of PONSSE Manager. The Customer shall manually disable PONSSE Manager from any Equipment in case such Equipment is sold, leased or assigned to a third party or otherwise removed from PONSSE Manager.

The Customer shall at its expense be responsible for having available all equipment, software versions and connections for the use of PONSSE Manager in accordance with the compatibility requirements set by PONSSE from time to time. PONSSE may provide updates and upgrades from time to time to PONSSE Manager in its sole discretion.

The Customer and its users shall maintain the user names and passwords diligently and the user names and passwords may not be disclosed to third parties. The Customer shall be responsible for all use of its users’ user names and passwords.

4.	FEES AND PAYMENT

Fees
The fees for PONSSE Manager services shall be in accordance with PONSSE’s price list current at the time the Parties enter into the Agreement. Some services or service packages in PONSSE Manager may be provided free of charge upon PONSSE’s sole discretion. Fees for other services provided in connection with PONSSE Manager, such as installation and maintenance work, shall be charged in accordance with PONSSE’s maintenance service prices valid from time to time. 
PONSSE shall have the right to adjust the fees by notifying the Customer thereof at least one (1) month prior to the fee change. 
Invoicing and Payment Term
The fees for PONSSE Manager shall be invoiced monthly or as a lump-sum payment depending on the purchased services. If PONSSE Manager is included in the Customer’s maintenance service agreement with PONSSE, PONSSE Manager shall be invoiced in connection with the maintenance service invoicing. If an individual Equipment is removed from PONSSE Manager during a calendar month, the invoicing period for such Equipment shall, however, continue until the end of the calendar month in question, as applicable.
Fees for any other services shall be invoiced monthly afterwards.
All payments shall be made in Euros within fourteen (14) days from the date of the invoice. Value-added tax, withholding tax, duties, levies and other taxes and governmental charges shall be borne by the Customer and be added to the fees. Any overdue payment shall be subject to an overdue interest in accordance with the Finnish Interest Act (633/1982, as amended). 
PONSSE may, upon its discretion, suspend the provision of and access to PONSSE Manager of the Customer in the event that the Customer is delayed in making any payment.

5.	LICENSE TERMS

The Customer is granted a non-exclusive, non-assignable and non-transferable license during the term of the Agreement to access and use PONSSE Manager solely for its forest machinery business in accordance with the terms and conditions of this Agreement.

The Customer shall not have the right to license, resell, transfer, assign, share, maintain, outsource or otherwise commercially exploit PONSSE Manager or disclose PONSSE Manager to third parties without PONSSE’s prior written approval. 

Even if these actions would be technically possible, Customer may not disassemble, decompile or reverse engineer or otherwise attempt to derive the source code of the software of PONSSE Manager.

PONSSE shall be entitled to make changes to PONSSE Manager at any time, as long as the main purpose of PONSSE Manager does not change.

6.	INTELLECTUAL PROPERTY RIGHTS

Any and all Intellectual Property Rights of a Party existing prior to the entering into effect of this Agreement or developed independently thereafter without any material or information received from the other Party shall vest solely in such Party.

All Intellectual Property Rights to PONSSE Manager and any amendments thereto, including without limitation improvements, modifications or new versions to the same, shall vest in PONSSE or its licensors. Nothing in this Agreement may be construed or interpreted as transferring of any Intellectual Property Rights of PONSSE Manager (or any derivative work thereof) to the Customer.

If PONSSE Manager is deemed to infringe or PONSSE reasonably suspects it to infringe any Intellectual Property Rights of a third party, PONSSE may terminate this Agreement immediately, close PONSSE Manager and delete the Customer’s user account. 

7.	PONSSE’S LIABILITY FOR ERRORS 

PONSSE endeavors to have PONSSE Manager operating as uninterruptedly and error-free as possible but does not warrant that PONSSE Manager shall be uninterrupted or error-free. PONSSE shall not be responsible for the accuracy, reliability, availability or other qualities of any data, material or service accessed through PONSSE Manager. 

PONSSE endeavors to correct without unnecessary delay any material errors in PONSSE Manager that are attributable to PONSSE.

PONSSE may suspend the delivery of or access to PONSSE Manager (each a ”Service Break”):
i)	for the purposes of installation, change or maintenance work, or
ii)	due to interruption in public networks, repair of errors or equipment, security risks, problems in electricity supply, if required by law or an order by an authority or if PONSSE suspects misuse of PONSSE Manager or breach of these Terms.

If the suspension is due to a Service Break planned by PONSSE, PONSSE shall, where reasonably possible, inform the Customer of the suspension in advance. PONSSE will inform the Customer of other suspensions, where reasonably possible, without delay. PONSSE may make such notifications in the user interface of PONSSE Manager.

8.	LIMITATION OF LIABILITY

THE TOTAL LIABILITY OF PONSSE TOWARDS THE CUSTOMER IN RESPECT OF ANY DIRECT COSTS AND DAMAGES ARISING OUT OF PONSSE’S BREACH OF THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT PAID BY THE CUSTOMER UNDER THIS AGREEMENT DURING THE LAST THREE (3) MONTHS PRIOR THE CAUSE FOR THE CLAIM HAS ARISEN.

NEITHER PARTY SHALL BE LIABLE FOR ANY SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES. 

PONSSE SHALL NOT BE LIABLE FOR THE LOSS OF, DAMAGE TO, NOR ALTERATION OF DATA OR DATA FILES OF THE CUSTOMER DUE TO ANY CAUSE AND THE RESULTING DAMAGES AND EXPENSES INCURRED, SUCH AS EXPENSES BASED ON THE RE-CREATION OF DATA FILES. THE CUSTOMER SHALL BE LIABLE FOR THE DATA SECURITY OF ITS OWN WORK STATIONS AND NETWORKS, VIRUS PROTECTION, FIREWALLS AND FOR THE MANAGEMENT OF THE USER RIGHTS OF PONSSE MANAGER.

PONSSE SHALL NOT BE LIABLE FOR ANY DAMAGES CAUSED BY PONSSE MANAGER TO OTHER PROPERTY OR PERSONS. 

The limitations of liability shall not be applicable to damages caused by willful intent or gross negligence or by Customer’s breach of Section 5 (Intellectual Property Rights) or Section 9 (Confidentiality).

9.	CONFIDENTIALITY

Each Party shall keep in confidence all Confidential Information and shall not disclose the Confidential Information to any third party or use the Confidential Information for any purpose other than for the purpose of this Agreement. Each Party warrants the observance and proper performance of this Section 9 by its employees and any possible subcontractors used by such Party and to which Confidential Information has been disclosed.
The confidentiality obligation in this Section 9 shall not, however, be applied to any material or information: (i) 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 (ii) which is generally available or otherwise public other than by a breach of this Agreement on the part of the receiving Party; or (iii) which the Party has received from a third party without any obligation of confidentiality; or (iv) which a Party has developed independently without using material or information received from the other Party; or (v) which must be disclosed by the receiving Party subject to law or an order by an authority or a court.

10.	 CUSTOMER DATA 

Collection of Customer Data

The Customer hereby accepts and gives express and written authorization to PONSSE so that it may collect and process the Customer Data for the purpose of i) offering, performing and invoicing PONSSE Manager, ii) testing, supporting and maintaining the Customer’s Equipment, iii) inspecting any cases of misuse or investigating and repairing a technical or similar failure in PONSSE Manager and iv) offering new services to the Customer. Customer warrants that the processing of Customer Data by PONSSE as contemplated in this Agreement will not violate any rights of third parties.

PONSSE may, at its option, also collect data obtained from third parties (such as data relating to environmental conditions) to provide certain additional services and/or reports in PONSSE Manager. For the sake of clarity, no Customer Data is disclosed to any such third parties at any time. The Customer may authorize PONSSE to grant access to a third party to PONSSE Manager to view certain parts of the Customer Data, as separately agreed by the Parties.

PONSSE gives no undertaking as regards the legality of the use of PONSSE Manager in any given situation. The Customer acknowledges and agrees that it is entirely responsible for its use of the Customer Data in PONSSE Manager and for any use that it or any third party may make of it for any purposes and that PONSSE shall have no responsibility for any such data or such use. 

Processing of personal data included in Customer Data

PONSSE is committed to ensure the necessary level of data protection and data security of the Customer Data. PONSSE and its subcontractors shall be responsible for detecting and identifying data protection and data security related risks together with the prevention and minimizing of such risks. 

PONSSE processes personal data included in the Customer Data of PONSSE Manager on behalf of the Customer. Personal data means information that concerns an identified or identifiable natural person (hereafter referred to as “Data Subject”). Customer Data may include personal data of the Customer’s contact person or forest machine operator, such as name, contact information and location data. The Customer is the controller for the personal data processed in PONSSE Manager and PONSSE is the data processor.

The Customer shall comply with all data protection regulations applicable to its operations under the Agreement. To the extent applicable, the Customer shall, as the controller, be responsible for ensuring that it has the necessary rights and has acquired the consents necessary to process the personal data (including location data), as well as for drafting a record of the data processing and keeping it accessible and providing the necessary information about the data processing to the Data Subjects.

PONSSE has the right to process the personal data of the Customer only according to the Agreement, these Terms and the written guidance of the Customer and only insofar as it is necessary to provide PONSSE Manager.

PONSSE may engage subcontractor(s) in processing the personal data of the Customer. PONSSE informs the Customer of the subcontractor(s) used by PONSSE and any changes therein. The Customer has the right to prohibit the use of new subcontractors on reasonable grounds. PONSSE shall sign a written agreement with its subcontractor(s) and is responsible for ensuring that the subcontractor(s) will adhere to these terms concerning the processing of personal data. PONSSE shall regularly supervise the operation of its subcontractor(s). 

In case the Customer is situated in the EU/EEA: Customer Data and the personal data included in the Customer Data are stored on servers located in Finland and EU/EEA. Personal data shall not be transferred or processed in a country outside of the EU/EEA without prior authorization of the Customer. 

In case the Customer is situated outside the EU/EEA: PONSSE and its subcontractors may process personal data outside the EU/EEA. In such case, PONSSE ensures that the transfer is only to: (a) countries for which the Commission has decided that they have an adequate level of data protection or (b) parties, which use standard contractual clauses or other appropriate safety measures as they are described in article 46 of the General Data Protection Regulation. When the above-mentioned prerequisites are met and presuming that PONSSE keeps the Customer aware of transfers of personal data outside the EU/EEA, the Customer gives its consent to the transfers and authorizes PONSSE to agree on the use of privacy clauses on behalf of the Customer and to represent the Customer regarding those conditions of the standard contractual clauses that refer to the rights and liabilities of the Customer.

PONSSE shall transfer all requests to inspect, rectify, erase, or ban the processing of data or other requests received from the Data Subjects, to the Customer and shall, upon request of the Customer, support the Customer in fulfilling the statutory requests of the Data Subjects. PONSSE shall forward all inquiries by the data protection authorities to the Customer.
PONSSE shall, upon request, demonstrate that it and its subcontractor(s) adhere to these terms concerning the processing of personal data. The Customer or an auditor authorized by the Customer (not, however, a competitor of PONSSE) may once a year perform an audit to verify that PONSSE and its subcontractor(s) are processing the personal data of the Customer in accordance with these terms, based on the Customer’s written notice given at least 30 days in advance. PONSSE shall rectify the detected faults and deficiencies without undue delay. Each Party shall bear its own costs for the audits. 

PONSSE and its subcontractor(s) shall carry out the appropriate technical and organizational measures to protect the personal data included in the Customer Data in accordance with the applicable privacy legislation, taking into account the available technical options, the special risks relating to the data processing at hand and the sensitivity of the personal data in question. The personnel of PONSSE or its subcontractor(s) taking part in the processing of data is obligated to maintain secrecy as regards the data.

PONSSE shall use all reasonable efforts to protect the Customer Data from any unauthorized disclosure to any third parties and shall inform the Customer of any possible data security breaches relating to Customer Data in accordance with the applicable legislation. 
PONSSE and its subcontractor(s) shall work together with the Customer and ensure that the Customer has the documentation required by law and data protection authorities regarding any data security breaches. The Customer grants PONSSE and its subcontractor(s) the right to copy the Customer Data for the purposes of data security and maintaining system availability of PONSSE Manager.

The Customer acknowledges and agrees that PONSSE shall have the right to collect and use Customer Data that does not relate to individuals, or is in anonymized form (“Statistical Data”) for the purpose of improving, managing, selling and/or marketing PONSSE Manager or other products or services of PONSSE.

Storage of Customer Data

PONSSE undertakes to store the Customer Data during the term of the Agreement, provided that such data storage complies with the applicable legislation. Upon the termination of the Agreement, PONSSE undertakes to store the Customer Data for a period of three (3) months after which the Customer Data shall be destroyed. Transfer of the Customer Data to the Customer after the termination of the Agreement shall be agreed separately and invoiced in accordance with the PONSSE’s price list valid from time-to-time.

PONSSE reserves the right to store the Statistical Data for an unlimited period of time, or to delete such data at any time. 

11.	TERM AND TERMINATION 

This Agreement shall be in force until further notice, unless terminated by either Party with a prior written notice of one (1) month. The termination period shall commence on the 1st day of the calendar month following the termination notice. In the event of termination of this Agreement, any outstanding fees shall be invoiced in thirty (30) days after the termination period has ended.  

Each Party shall have the right to terminate this Agreement with immediate effect upon written notice to the other Party if 
a)	the other Party commits a material breach of any of the terms and conditions of this Agreement and fails to remedy such a breach within 30 days of the other Party’s written notice thereof; or
b)	the other Party is or becomes insolvent, declared bankrupt, is put into liquidation, sells all of its assets, ends its business or it otherwise ceases with its payments. In any such case PONSSE may alternatively require an advance payment as a condition for fulfilling 
PONSSE’s contractual duties under this Agreement; or
c)	there is a material change in control or ownership of a Party. A change is deemed material if control or ownership is acquired by a competitor of the other Party. A Party shall notify the other Party of such material changes in the ownership or control without undue delay.

PONSSE may also terminate the Agreement with immediate effect upon written notice to the Customer if legislative changes in the Customer’s country in any way prohibit compliance with the Agreement and these Terms. 

12.	MISCELLANEOUS 

Assignment and Subcontractors; Neither Party may assign the Agreement to a third party without the prior written consent of the other Party. However, PONSSE may assign the Agreement without the consent of Customer to a transferee, when assigning the ownership of PONSSE’s business or part thereof, or to PONSSE’s affiliate, and by operation of law. PONSSE may also assign its receivables based on the Agreement to a third party. 
PONSSE shall have the right to subcontract its obligations under this Agreement. PONSSE shall be liable for the work of its subcontractors as work of its own. 

Export; The Customer shall not export, or transfer for the purpose of re-export, any products, technical information, software or documentation relating to PONSSE Manager in violation of any regulation, treaty, executive order, law, statute, amendment or supplement thereto. It is the responsibility of the Customer, at the Customer’s expense, to obtain all approvals and consents required for any export or re-export.

Survival; Upon termination of the Agreement, the provisions relating to intellectual property rights, confidentiality, limitations of liability and governing law and dispute settlement, shall survive. Also, any other provisions which by their nature contemplate effectiveness beyond the termination of the Agreement, shall survive the termination.  

Entire Agreement; The Agreement and the information which is incorporated into the Agreement by written reference constitute the complete agreement between the Parties with respect to the subject matter of the Agreement and supersedes all previous or contemporaneous agreements, representations, proposals, marketing materials and other communications between the Parties with respect to the subject matter of the Agreement.

Severability; If any provision of the Agreement is found to be contrary to law, the other provisions of the Agreement will remain in full force and effect. Such invalid provision shall be amended by the Parties and the Agreement shall be interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law. 

Waiver and Amendment; A failure by a Party to use any of its rights based on the Agreement shall not be construed as a waiver of such right. 
PONSSE may change these Terms at any time. If the Customer uses the PONSSE Manager after the changes in the Terms have entered into effect, the Customer shall be bound by the new Terms. It is the responsibility of the Customer to check the up-to-date versions of the Terms when signing in to the PONSSE Manager user interface. 
In the event the Customer terminates the PONSSE Manager due to PONSSE’s change of these Terms, the date of the termination in accordance with Section 11 shall be the effective date of the changes. 

Force Majeure; Save for the obligations to pay money properly due and owing, a Party shall not be liable for delays, defects or damages caused by factors due to an impediment beyond his control, which such Party cannot reasonably be deemed to have taken into account at the time of the conclusion of the Agreement, and the consequences of which such Party could not reasonably have avoided or overcome. Such events of force majeure shall include, without being limited to, natural disasters, breakdown of electricity or networks, security attacks, strikes and other labor disputes or acts of government. A labor dispute shall be considered a force majeure event also when the Party concerned is the target or a party to such an action. The force majeure events suffered by subcontractors shall also be deemed as force majeure events. A Party shall notify the other Party without delay in writing of a Force Majeure event. The Party shall correspondingly notify the other Party of the termination of a Force Majeure event. PONSSE shall not have any liability for failures in Internet or other public networks.

Governing Law and Dispute Settlement; The Agreement shall be construed and enforced in accordance with the laws of Finland excluding both its choice of law provisions and the UN Convention on Contracts for the International Sale of Goods. All disputes arising out of the Agreement shall be finally settled by one (1) arbitrator in accordance with the Arbitration Rules of the Finland Chamber of Commerce. The arbitration shall take place in Helsinki, Finland, and shall be conducted in English.
Notwithstanding the above, each Party shall be entitled to seek equitable and/or injunctive relief to prevent or stop a violation of the terms and conditions in the Agreement and PONSSE may take legal actions concerning overdue payments, in any court of law. The Parties agree that the arbitration procedure and all thereto related material and information shall be treated as Confidential Information in accordance with Section 9.
The Customer acknowledges that i) the governing law and dispute resolution provision contained in this Section constitute a material inducement for PONSSE to enter into this Agreement, ii) PONSSE would not be able to offer the terms set forth in this Agreement in the absence of such provisions, and iii) such provision constitute a fair and reasonable bargain of the Parties regarding the subject matter thereof. 
Each Party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement or the transactions contemplated hereby.