These terms and conditions (“Terms of Use“) apply to the use of the SaaS based marketing tools (the “Service”) provided by, and proprietary to Nosto Solutions Oy, a Finnish limited liability company with a Finnish business identity code 2418911-9 (“Nosto”) to the customer (the “Customer“).

These Terms of Use apply to the Service made available via Internet on Nosto and by any other means via which the Service is made available or can be used, such as, but not limited to, browser plugins and applications. By using the Service the Customer accepts these Terms of Use. Nosto may update and modify these Terms of Use from time to time and by continuing to use the Service after having been informed of the modification on Nosto website or otherwise, the Customer accepts the modification. All material changes to these Terms of Use shall be informed to the Customer via email prior to them becoming effective.

1. Service

1.1 The Service consists of SaaS marketing tools and documentation provided by Nosto used by Customer via Internet. The Service can be used to create, manage and optimize advertising campaigns on the Internet. The Service is set out in more detail in the service description which are available on http://www.nosto.com.

1.2 The Service is designed to help the Customer in optimizing its marketing campaigns but the Customer remains responsible for how the Customer uses the Services and for achieving the intended goals and results of Customer’s marketing campaigns. It is the responsibility of the Customer to ensure that the output and results of the Services meet Customer’s expectations and requirements.

1.3 The Service is constantly evolving and the features and availability of the Service may change without notice. Nosto will endeavour to inform the Customer of any substantial changes in the Service on http://www.nosto.com

1.4 Nosto may provide use assistance to the Customer upon request. If required, the Customer must allow Nosto access to the necessary information and facilities, and, to the best of its ability, also otherwise contribute to the delivery of the Service. If requested by the Customer, Nosto personal can modify Customer’s marketing campaigns and other settings based on mutually agreed instructions.

1.5 The Customer undertakes not to use the Service for unlawful purposes or against the terms and policies applicable to the media in which the marketing campaigns are conducted. The Customer also undertakes to comply with Nosto’s reasonable directions and requests related to the Service. In the case the Customer grants its end-customers an access to the Service, such end-customers shall be considered equivalent to the Customer for the purposes of these Terms of Use and the Customer shall be responsible for the actions and compliance of such end-customers.

2. License

2.1 Subject to Customer registration Nosto grants Customer a non-exclusive, non-transferable limited licence, against due payment of the agreed fees, to use the Service.

2.2 No intellectual property rights shall be transferred pursuant these Terms of Use.

2.3 In case the use of the Service includes third-party solutions, regardless of anything to the contrary stated hereunder, they shall be exclusively governed by their provider’s standard terms and conditions applicable to such solutions.

3. Fees

3.1 Nosto’s fee for the Service is 3 % of Customer’s Revenue generated by the Customer through Email Widgets. Revenue generated through Email Widgets means all revenue generated through Email Widgets that are generated through Nosto’s service. A sale is attributed to Nosto if a Customer clicks an Email Widget ad generated by Nosto and then during the same browsing session makes a purchase.

3.2 The fee shall be calculated and invoiced after each calendar month based on the actual Revenue generated through Email Widgets. Unless otherwise agreed, possible additional service is separately chargeable on time and material basis.

3.3 Fees are subject to change from time to time upon 30 days notice. The change shall not affect the fees for invoicing periods commenced before the effective date of the change. In case of a price change the Customer shall be entitled to terminate the Service to end on the effective date of the price change by notifying Nosto thereof in writing at least 14 days before the effective date of the change.

3.4 The Services are invoiced monthly afterwards via credit card or invoice, depending on the payment method chosen by the Customer. Unless otherwise agreed, the term of payment is 14 days net from the date of invoice.

3.5 All payments shall be paid in Euros, and in the event revenue is earned by Customer in currencies other than in Euros, then Service Provider shall convert said amounts each month into Euros based upon the latest foreign exchange reference rates on the day merchant’s bill is created. The Service Provider adopts the exchange rates from a publicly available source and reserves the right to change the source at any time without a notice. At the moment the Service Provider uses the rates published by the Open Exchange Rates (www.openexchangerates.org)

3.6 Interest shall be payable on any amounts paid later than the date due hereunder in accordance with Finnish Interest Act. In the event of delay in payment, Service Provider is entitled to suspend or terminate the use of Service without prejudice to Service Provider’s other rights and remedies.

3.7 The fees are exclusive of VAT and any other governmental taxes and levies.

4. Warranty, limitation of liability

4.1 Nosto makes commercially reasonable efforts to ensure that the Service will be available for use on 24/7 basis excluding temporary maintenance, updating or repair breaks. Nosto does not assume any liability for usage interruptions or breaks, but it shall inform the Customer of the breaks whenever reasonably possible. Nosto does not warrant that the Service will be uninterrupted or error-free. However, Nosto agrees to use commercially reasonably efforts to be at Customer’s disposal in order to support the Customer and to correct any material error or deficiency in the Service.

4.2 The warranty does not cover errors or deficiencies attributable to (a) changes to the Service made by the Customer which have not been approved by Nosto in writing; (b) use contrary to these Terms of Use, or the written instructions given by Nosto; (c) disturbances or interruptions in the Service due to data network; or (d) a service or product not supplied by Nosto or other similar reason outside of the Services.

4.3 The Customer acknowledges that the use of the Service is dependent on media in which Customer’s marketing campaigns are carried out and that the actions of the third party operating the media may affect the use of the Service. Nosto does not accept any liability for the operation and function of third party products and services or actions or omissions of any third party providers including the third parties who operate the media in which Customer’s marketing campaigns are carried out.

4.4 TO THE EXTENT NOT OTHERWISE EXPRESSLY AGREED IN THESE TERMS OF USE, THE SERVICE IS PROVIDED “AS IS” AND “AS AVAILABLE” AND NOSTO EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, INCLUDING THE WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, CORRECTNESS AND FITNESS FOR A PARTICULAR PURPOSE.

4.5 TO THE EXTENT ALLOWED BY MANDATORY LAW, NOSTO DOES NOT HAVE ANY OTHER RESPONSIBILITY OR LIABILITY FOR THE SERVICE. IN ALL CASES NEITHER PARTY SHALL BE LIABLE FOR ANY LOSS OF PRODUCTION, LOSS OF OR CORRUPTION TO SOFTWARE OR DATA, LOSS OF PROFITS OR OF CONTRACTS, LOSS OF BUSINESS OR OF REVENUES, LOSS OF OPERATION TIME, LOSS OF GOODWILL OR REPUTATION, WHTHTER CAUSED DIRECTLY OR INDIRECTLY, OR FOR ANY INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER IN ANY WAY ARISING IN CONNECTION WITH THE SERVICE OR THESE TERMS OF USE.

4.6 NOSTO’S TOTAL AGGREGATE LIABILITY UNDER THIS AGREEMENT MAY NOT IN ANY CALENDAR YEAR STARTING FROM THE DAY THE CUSTOMER STARTED USING THE SERVICE EXCEED AN AMOUNT EQUAL TO TWENTY (20) PERCENT OF THE FEES RECEIVED BY NOSTO FROM THE CUSTOMER UNDER THESE TERMS OF USE DURING THE CALENDAR YEAR IN WHICH THE CAUSE OF CLAIM OCCURRED.

5. Term and termination

5.1 Each party may terminate these Terms of Use and the use of the Service for convenience upon 14 days prior written notice. The Customer may also give a written termination notice to support@nosto.com.

5.2 A party may terminate these Terms of Use and the Customer’s use of the Service with immediate effect, if the other party is in material breach of its obligations hereunder, and fails to remedy such breach within 30 days written notice.

5.3 Upon termination for whatever reason, no paid fees will be returned by Nosto, and the Customer is obliged to pay the fees past due at the effective date of such termination. In case the agreed fees are not fully paid or the obligations set out herein are not otherwise followed by the Customer, Nosto reserves the right to terminate the licence to use the Service with immediate effect.

6. Processing of personal data

6.1 When the Customer uses Service, Nosto’s servers (which may be hosted by a third party service provider) collect information automatically from your Online Store.

6.2 Nosto will act as the data controller with respect of the personal data Nosto may have collected from the Customer during Customer’s registration process or provision of support services, if any. To the extent Nosto collects any personal data of consumer customers of Customer’s Online Store, Nosto will act as data processor in respect of such personal data. The Customer may send Nosto the following personal data only: first name, last name, email address and customer reference number of Online Store’s registered customer. Nosto will collect the information sent by the Customer and the information seen when the Online Store’s customer uses Online Store and connects to Nosto servers, including but not limited to: online store browsing and purchasing activities (such as browsed products and pages visited), IP-address and browser-agent. Sending or storing any other personal data in Nosto is strictly forbidden.

6.3 Nosto may use the information collected and created through the Service for Nosto’s own business purposes provided, however that such information is made anonymous in a manner that the information is not identifiable to any person or to Customer’s Online Store.

6.4 Nosto stores and process the information collected on computers/servers located in the USA or EU/ETA or in such countries which the Commission of European Union has determined to ensure adequate protection of personal data. We will not move personal data from these countries without notifying you, unless required to comply with the law or requests of governmental entities. Should Nosto transfer personal data to our third party service providers located in the USA we mainly transfer personal data to them based on the Data Processing Agreements which incorporate the Standard Contractual Clauses 2010/87/EU (often referred to as “Model Clauses). Nosto has implemented technical and organisational precautions to protect the security and integrity of personal data processed by Nosto. By using Nosto, the Customer gives Nosto the consent to store, process and transfer Customer’s information (including Online Store customers’ personal information, if any) outside of Customer’s country of residence within the countries referred to above. If the Customer objects to such information (if any) being transferred or used in this way, the Customers should not use the Service.

6.5 The Customer may request Nosto to remove the personal data processed by Nosto. Nosto removes the requested personal data within reasonable time from the request unless Nosto has statutory obligation to store such data.

6.6 Functionality of an Online store always requires cookies, if not for other purpose, but at least for shopping cart functionality. The Service should not be confused with other online store functions or cookies, as the Service is technically separate service and is not involved with the online store’s core functionality, e.g orders, payments, deliveries. However, Nosto uses and sends cookies to the browser of your Online Store visitors, with the following functions: (i) visit in store and (ii) visit history (cart restore and product browsing information). Customer’s visitors can prevent the use of cookies, but then all features of the Service, or the Online store cannot be used. Also javascript needs to be enabled.

7. Applicable law and dispute resolution

7.1 These Terms of Use will be governed by the laws of Finland excluding its provisions relating to choice of law.

7.2 Any dispute, controversy or claim arising out of or relating to these Terms of Use, 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 proceedings shall take place in the English language in Helsinki, Finland.

8. Miscellaneous

8.1 Nosto is entitled to produce the Service as it deems best. Nosto is entitled to change the working methods, hardware, data communication links, software, user interface or other system components used in the production of the Service. Nosto may also use subcontractors. Unless otherwise agreed, Nosto is responsible for the work of its subcontractors as for its own.

8.2 Nosto is entitled to use Customer’s name and logo as a reference for marketing purposes.

8.3 Neither party may assign these Terms of Use without the written consent of the other party. Nosto shall, however, be entitled to assign these Terms of Use to its affiliates and in connection with merger or acquisition process.

8.4 Neither party shall be liable for delays and damages caused by an impediment beyond its control, which he could not have reasonably taken into account at the time of the conclusion of these Terms of Use, and whose consequences he could not reasonably have avoided or overcome.

8.5 These Terms of Use and the information submitted by the Customer during the registration process for the Service constitute the entire agreement with respect to its subject matter and replaces and supersedes any prior written or verbal communications. If any provision herein is held to be invalid or unenforceable to any extent, then such provision will be interpreted, construed and reformed to the extent reasonably required to render it valid, enforceable and consistent with its original intent.