TERMS OF SERVICE

ProductSense

General

These Terms of Service govern all licenses granted and services provided by ProductSense Oy (“ProductSense”) to its Customers to use ProductSense’s services (each a “Party”, and together, the “Parties”) as specified in the relevant Main Agreement between the Parties. These Terms of Service, together with the Main Agreement and all exhibits, schedules, and/or attachments appended thereto, constitute an integral part of the agreement between the Parties (the “Agreement”). No standard terms of the Customer are applicable. Any such Customer terms will not be deemed incorporated into or form any part of this Agreement, and all such terms or conditions are null and void. Unless otherwise agreed, the terms of the Main Agreement take precedence over these Terms of Service.

If you are accepting these Terms of Service on behalf of your employer or another entity, you represent and warrant that: (i) you have full legal authority to bind your employer or such entity to these Terms of Service; (ii) you have read and understand these Terms or Service; and (iii) you agree to these Terms or Service on behalf of the party that you represent.

These Terms of Service do not have to be signed in order to be binding. You indicate your acceptance to these Terms of Service by clicking “Sign Up” (or similar button or checkbox) at the time you register for the Software Service, create an account with ProductSense, or place an order form or otherwise conclude a Main Agreement.

Definitions

For the purpose of these Terms of Service and the Agreement, the following terms shall have the following meanings:

"Access Credentials" shall mean the identifiers, usernames and passwords required for the access and use of the Software Service by the Customer’s Authorized Users.

“Affiliate(s)” shall mean another entity directly or indirectly controlled by a party, under the same direct or indirect ownership or control as such party or directly or indirectly controlling such party. Control shall mean the direct or indirect ownership of fifty percent (50%) or more of the shares or interests, which entitle to vote for the directors on an entity or equivalent, for as long as such entitlement subsists, or which mean equivalent power over the management of an entity.

“AI” shall mean artificial intelligence.

“Authorized User” shall mean each user that is authorized pursuant to these Terms of Service to access and use the Software Service. 

“Confidential Information” shall mean all confidential and proprietary information of a Party (the “Disclosing Party”) disclosed to the other Party (the “Receiving Party”), whether orally or in writing, or otherwise accessed by the Receiving Party marked as proprietary or confidential or which should be understood to be confidential given the nature of the information and the circumstances under which it is disclosed

"Customer" shall mean the entity having subscribed to or purchased the Software Service under the Agreement.

“Customer Data” shall mean any data, information or material submitted to the Software Service by the Customer or a third party acting on behalf of the Customer, including usage data generated by the Customer’s use of the Software Service. 

“Effective Date” shall mean the date on which the Main Agreement is signed, or another date as may be specifically defined in the Main Agreement.

“Feedback” shall mean any input, suggestions, development ideas, proposals or other comments related to the Software Service.

“Intellectual Property Rights” shall mean the copyrights and other similar rights and related rights (including database and catalogue rights), inventions, whether patentable or not, patents, utility models, trademarks, trade secrets, know-how and any form of legal protection of any kind and applications for any of the foregoing respectively.

“Main Agreement” shall mean the document, including but not limited to email correspondence, order forms, online orders or other forms of communication, which refer to these Terms of Service and in which the Parties have defined and agreed on provision of the Software Service.

“Software Service” shall mean ProductSense’s proprietary SaaS service as defined in the Main Agreement, and related documentation provided by ProductSense to the Customer.

“Term” shall mean the period set forth in the Main Agreement during which ProductSense agrees to provide the Software Service to the Customer. Unless otherwise agreed, the term is one (1) year as of the Effective Date. If the Agreement is renewed, the “Term” refers to such renewal period.

1 Use of software service

1.1 Subject to the terms and conditions of the Agreement and subject to the timely payment of the fees set out hereunder, ProductSense grants to the Customer a limited, non-transferable, non-assignable, non-sublicensable and non-exclusive right to access and use the Software Service solely for the Customer’s own internal business operations. The limited license granted in this Section 1.1 shall be valid for the Term.

1.2 The number of Authorized Users permitted to access the Software Service is defined in the Main Agreement. If the number of Authorized Users is not specified, the default number shall be one (1) Authorized User. If the Customer wishes to (i) reduce the number of paid-for Authorized Users during the applicable Term, the Customer must provide ProductSense with written notice (email acceptable) at least thirty (30) days prior to the end of the then-current Term, and ProductSense will reflect such reduction in the next applicable Term.

1.3 Access to the Software Service is restricted to the Authorized Users of the Customer and its Affiliates. Should the Customer wish to grant access to third-party users, prior written consent from ProductSense is required. The Customer remains responsible and liable for any use of the Software Service by the Authorized Users and use of the Access Credentials, irrespective of the user's identity.

1.4 In relation to the Authorized Users, the Customer undertakes that:

a) the maximum number of Authorized Users that it authorizes to access and use the Software Service shall not exceed the number of user rights it has purchased from time to time as defined in the Main Agreement;

b) it will not allow any Access Credentials to be used by more than one individual Authorized User unless it has been reassigned in its entirety to another individual Authorized User, in which case the prior Authorized User shall no longer have any right to access or use the Software Service;

c) each Authorized User shall keep a secure password for his use of the Software Service and that each Authorized User shall keep his password confidential;

d) it shall maintain a written, up to date list of current Authorized Users and provide such list to ProductSense within five (5) business days of ProductSense’s written request at any time or times;

e) it shall permit ProductSense to audit the Customer’s use of the Software Service in order to establish the name and password of each Authorized User. Such audit may be conducted no more than once per quarter, at ProductSense's expense, and this right shall be exercised with reasonable prior notice, in such a manner as not to substantially interfere with the Customer's normal conduct of business;

f) if any of the audits reveal that any password has been provided to any individual who is not an Authorized User, then without prejudice to ProductSense's other rights, the Customer shall promptly disable such passwords and ProductSense shall not issue any new passwords to any such individual; and

g) if any of the audits reveal that the Customer has underpaid fees, the Customer shall pay to ProductSense an amount equal to such underpayment as calculated in accordance with the prices set out ProductSense's then-current price list within ten (10) business days of the date of the relevant audit.

1.5 The Customer shall not access all or any part of the Software Service in order to build a product or service which competes with the Software Service or use the Software Service to provide services to any third parties.

1.6 The Customer is responsible for procuring and maintaining the network connections that connect the Customer’s network to the Software Service, including, but not limited to, “browser” software. ProductSense assumes no responsibility for the reliability or performance of any such connections or software.

1.7 ProductSense may provide the Customer with a free trial period for the Software Service, allowing access for one (1) Authorized User to evaluate its functionalities. Unless otherwise agreed, the trial period shall be fourteen (14) days as of the Effective Date. At the end of the free trial period, the Customer may opt to subscribe to the Software Service under the terms of the Agreement, enabling additional users to access the Software Service as defined in the Main Agreement. ProductSense reserves the right to modify or terminate the free trial period at any time without prior notice. These Terms of Service shall apply to the Customer’s use of the Software Service during the trial period.

2 Enhancements to software service

During the Agreement, ProductSense may, at its discretion, provide updates, upgrades, new versions or other enhancements to the Software Service to the Customer. ProductSense will provide reasonable advance notice to the Customer regarding any significant changes. Such changes shall not materially degrade the functionality or performance of the Software Service.

3 Customer data

3.1 The Customer shall be solely responsible for making its own back-ups of any data, including Customer Data. Except as otherwise agreed, ProductSense shall not be responsible for any loss, destruction or alteration of any Customer Data or any related data or for any resulting costs and damages, including any costs related to the recreating of such Customer Data or any related data.

3.2 Subject to the terms and conditions of the Agreement, the Customer grants to ProductSense a limited, irrevocable, non-transferable, non-assignable, non-sublicensable and non-exclusive license to use the Customer Data solely for the purposes providing and developing the Software Service. ProductSense agrees to use the Customer Data strictly in compliance with all applicable laws and regulations and to maintain the confidentiality of the Customer Data in accordance with the confidentiality provisions of Section 7 of these Terms of Service.

3.3 The Customer acknowledges that the Software Service is an “AI-native” solution, wherein AI is an integral component of its functionality. ProductSense shall strive to ensure that Customer Data is not utilized for AI learning or training purposes beyond the Customer's designated environment within the Software Service. Furthermore, Customer Data will at all times remain distinct and will not be aggregated or intermingled with data from other customers in a way that the Customer and/or the Customer Data is recognized from the data. Any application of Customer Data for AI purposes will be exclusively directed towards enhancing the Customer's experience within their own environment, with no transfer or integration of Customer Data into external AI models or systems.

4 Fees and invoicing

4.1 The Customer agrees to pay ProductSense the fees specified in the Main Agreement. If the fees are not specified in the Main Agreement, the Customer shall be charged according to ProductSense's rates in force at the time. Fees are quoted and payable in Euro and exclude VAT and similar taxes imposed by applicable legislation or authorities.

4.2 If the Agreement is renewed in accordance with Section 10.1, ProductSense may increase Fees at renewal by providing the Customer with prior written notice of such increase. Any promotional pricing offered in a previous Term is one-time only and does not apply for a renewal Term. For clarity, pricing for a renewal Term will be based on ProductSense ’s pricing in effect at the time of the applicable renewal.

4.3 By providing a credit card or other payment method accepted by ProductSense for the Software Service, the Customer agrees that ProductSense is authorized to charge to the elected payment method all applicable Fees when due, and any other charges the Customer may incur in connection with Customer’s use of the Software Service. The Customer is responsible for ensuring that payment information and primary contact information for billing, notices, and renewals is up-to-date at all times. If the Customer does not provide a payment at the time of purchase, ProductSense will invoice the Customer for the charges at the email address provided by the Customer to ProductSense. 

4.4 Unless otherwise agreed in the Main Agreement, payment term is net thirty (30) days from the date of the invoice. Interest on overdue payments under the Agreement is determined pursuant to the Finnish Interest Act (633/1982, as amended). The interest period for the entire amount shall run from the due date for payment until receipt of the full amount by ProductSense.

4.5 ProductSense reserves the right to modify the fees for the Software Service with at least forty-five (45) days' prior notice. If a fee increase exceeds ten percent (10%) annually, the Customer may terminate the Agreement for convenience, effective on the date of the price change, by providing written notice to ProductSense at least thirty (30) days before the change takes effect.

4.6 If any charge owed by the Customer remains overdue for thirty (30) days or more, ProductSense reserves the right to suspend the Customer's access to the Software Service under the Agreement, without incurring any liability, until the overdue payment, including any accrued interest, is paid and received in full.

5 Intellectual Property Rights

5.1 The Customer acknowledges that the Software Service, and its structure, organisation and its underlying source code contain copyrighted material, trade secrets and other proprietary material owned by ProductSense and its licensors. Accordingly, the Customer may not create derivative works from the Software Service, seek to merge the Software Service with any other internal or external service, modify, decompile, reverse engineer, access the source code of or transfer, assign, sublicense or distribute the Software Service in whole or in part. 

5.2 It is expressly stated that the Customer is prohibited from modifying the Software Service in any manner that would classify it as a high-risk AI system under the Regulation (EU) 2024/1689 of the European Parliament and of the Council of 13 June 2024 (AI Act).

5.3 All Intellectual Property Rights in the Software Service, content and materials, including, but not limited to, any and all enhancements released in accordance with Section 2, shall remain the exclusive property of ProductSense, its sub-contractors or licensors, and all rights in and to the Software Service not expressly granted to the Customer under the Agreement are reserved to ProductSense and its licensors.

5.4 The Customer is and will remain the sole and exclusive owner of all right, title and interest in and to all Customer Data, including all Intellectual Property Rights relating thereto, subject to the rights and permissions granted in Section 3.2.

5.5 In the event the Customer, at its sole discretion, provides ProductSense any Feedback, ProductSense shall have a royalty-free right to use the Feedback for the development of the Software Service.

6 Indemnification

6.1 The Customer is responsible for ensuring the accuracy, legality, and appropriateness of all Customer Data and for its compliance with all applicable laws, regulations, and standards. The Customer agrees to indemnify, defend, and hold harmless ProductSense, its Affiliates, and their respective officers, directors, agents and employees from any and all liabilities, claims and expenses arising from or related to: (i) any use of the Software Service by the Customer that breaches the Agreement or applicable laws; and (ii) any claim that Customer Data infringes or misappropriates a third party’s Intellectual Property Rights, or violates any applicable law. 

6.2 The Customer’s obligations under this Section 6 are contingent upon ProductSense (i) promptly notifying the Customer in writing of the claim or demand; (ii) allow the Customer to assume full control of the defense and settlement of such claim or demand; and (iii) provide the Customer with reasonable assistance, at the Customer's expense, in the defense of such claim or demand. The Customer shall not settle or consent to an adverse judgment in any such claim that adversely affects the rights or interests of ProductSense without the prior express written consent of ProductSense, which shall not be unreasonably withheld.

7 Confidentiality

7.1 The Receiving Party shall keep in confidence all Confidential Information received from the Disclosing Party in the same manner that it protects the confidentiality of its own proprietary and confidential information of a like kind (which in no event shall be less than a reasonable degree of care)and may not use Confidential Information for any other purposes than those set forth in the Agreement and only to the extent necessitated by the Agreement, and shall have the right to disclose the Confidential Information to its Affiliates, employees, subcontractors and/or advisors only on a need-to-know basis provided, however, that they are obligated to keep the Confidential Information in confidence, in each case consistent with the terms and conditions hereof. Furthermore, the Customer shall keep all Access Credentials confidential.

7.2 The confidentiality obligation shall, however, not be applied to material and information (i) which is generally available or otherwise public, (ii) which the Receiving Party has received from a third party without any obligation of confidentiality, (iii) which was in the possession of the Receiving Party prior to receipt of the same from the Disclosing Party without any obligation of confidentiality related thereto, (iv) which the Receiving Party has developed independently without using material or information received from the other Party, and/or (v) which the Receiving Party shall disclose pursuant to a law, decree or other order issued by the authorities or a judicial order.

7.3 At any time upon the request of the Disclosing Party, the Receiving Party will destroy all Confidential Information of the Disclosing Party, including all copies thereof and notes and other materials incorporating such Confidential Information, whether in physical or electronic form; provided, however, the Receiving Party shall not be required to return or destroy electronic copies that are automatically stored in accordance with Receiving Party’s generally applicable backup policies and which are not reasonably accessible by the Receiving Party.

7.4 Each Party’s representatives shall be entitled to use the professional skills and experience acquired in connection with the provision of the Software Service.

7.5 The confidentiality obligations under this Section 7 shall continue to be binding beyond the termination or expiration of the Agreement and shall remain in effect for a period of five (5) years from the expiry or termination of the Agreement.

8 Limitation of liability

8.1 NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF PROFITS, GOODWILL, REVENUE, DATA OR DATA USE HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.

8.2 PRODUCTSENSE SHALL NOT BE LIABLE, UNDER ANY CIRCUMSTANCES, FOR ANY DAMAGES, OR ANY LOSS OF PROFITS, GOODWILL, REVENUE, DATA OR DATA USE RESULTING FROM THE AVAILABILITY OF THE SOFTWARE SERVICE, OR LOSS OF DATA OR CUSTOMER DATA.

8.3 PRODUCTSENSE’S MAXIMUM LIABILITY FOR ANY DAMAGES ARISING OUT OF OR RELATED TO THE AGREEMENT, WHETHER IN CONTRACT, TORT, OR OTHERWISE, SHALL BE LIMITED TO THE FEES PAID BY THE CUSTOMER TO PRODUCTSENSE UNDER THE AGREEMENT DURING THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO THE LIABILITY. IN NO EVENT SHALL PRODUCTSENSE’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THE AGREEMENT EXCEED THE TOTAL FEES PAID BY THE CUSTOMER IN THE TWELVE (12) MONTHS PRECEDING THE CLAIM.

8.4 THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 8 SHALL NOT APPLY TO DAMAGES RESULTING FROM WILLFUL MISCONDUCT OR GROSS NEGLIGENCE, NOR TO DAMAGES THAT CANNOT BE LIMITED UNDER MANDATORY APPLICABLE LAWS. ADDITIONALLY, THESE LIMITATIONS DO NOT APPLY TO CLAIMS ARISING UNDER SECTION 6 (INDEMNIFICATION), OR BREACHES OF SECTION 5 (INTELLECTUAL PROPERTY RIGHTS) OR SECTION 7 (CONFIDENTIALITY).

9 WARRANTIES and DISCLAIMERS

9.1 Each Party represents and warrants that it has the legal power and authority to enter into this Agreement. The Customer warrants that (i) it will not use the Software Service for unlawful purposes or in a manner that infringes or otherwise violates the rights of any third party, (ii) its use of the Software Service is in compliance with applicable laws, and (iii) that it is legally entitled to transfer and/or upload the Customer Data to the Software Service.

9.2 THE CUSTOMER ACCEPTS THAT EXCEPT AS OTHERWISE EXPRESSLY AGREED IN THE AGREEMENT AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SOFTWARE SERVICE IS PROVIDED ON "AS IS" AND "AS AVAILABLE" BASIS, AND PRODUCTSENSE MAKES NO WARRANTIES, EXPRESS OR IMPLIED, AND EXPRESSLY DISCLAIMS ANY IMPLIED AND EXPRESS WARRANTIES AND CONDITIONS OF NON-INFRINGEMENT, CORRECTNESS, AVAILABILITY, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. PRODUCTSENSE EXERCISES NO CONTROL OVER AND EXPRESSLY DISCLAIMS ANY LIABILITY ARISING OUT OF OR BASED UPON THE RESULTS OF CUSTOMER’S OR AUTHORIZED USERS’ USE OF THE SOFTWARE SERVICE.

10 Term and Termination

10.1 The Agreement shall become effective on the Effective Date and shall remain in force for the Term or until terminated by either Party in accordance with these Terms of Service. The Agreement shall automatically renew for successive periods equal to the initial Term, unless either Party elects not to renew the Agreement providing the other Party a written notice at least thirty (30) days prior to the renewal, in which case the Agreement shall terminate upon the expiry of the applicable Term.

10.2 Notwithstanding anything in the contrary, the Agreement may be terminated with an immediate effect upon written notice to the other Party as follows:

i. by ProductSense, if the Customer fails to pay any undisputed sum due hereunder within thirty (30) days of written notice of default issued by ProductSense; and

ii. by either Party, if the other Party commits a material breach of the Agreement, and which, if the breach may be remedied, has not been remedied within thirty (30) days of a written notice issued to the breaching Party.

10.3 Upon cancellation, expiry or termination of the Agreement, ProductSense shall not be obligated to return any fees or amounts paid by the Customer to ProductSense before the cancellation, expiry or termination, unless the termination is due to ProductSense’s material breach of the Agreement.

10.4 On termination of this Agreement for any reason, all licenses and rights granted to the Customer with respect to the Software Service hereunder shall immediately terminate.

10.5 In the event of termination of this Agreement, upon the Customer’s written request made within thirty (30) days after the effective date of termination, the Customer shall be entitled to export Customer Data for the Software Service for up to ninety (90) days from the date such written request is received. After such ninety (90) day period, ProductSense shall have no obligation to maintain or provide any Customer Data and may thereafter, unless legally prohibited, delete all Customer Data.

10.6 The terms of the Agreement, which due to their nature should survive termination of the Agreement, including confidentiality obligations and warranties and representations, shall survive the termination hereof.

11 Data protection

11.1 The Parties acknowledge that, with respect to Access Credentials and other personal data relating to the Authorized Users, ProductSense acts as the data controller. Such processing is subject to the Privacy Notice available on ProductSense’s website at https://productsense.com/privacy/

11.2 If ProductSense processes personal data on behalf of the Customer as a processor, the processing shall be governed by ProductSense’s standard Data Processing Addendum, which is accessible at https://productsense.com/dpa/

12 Reference use

ProductSense shall be entitled to use the Customer as a reference only with the Customer's prior written consent. This includes the right to mention the Customer’s name and logo in marketing materials, case studies and on ProductSense’s website. ProductSense agrees to comply with any guidelines provided by the Customer regarding the use of its name and logo.

13 Miscellaneous

13.1 Subcontractors. ProductSense shall have the right to subcontract its obligations, or a part thereof, under the Agreement. ProductSense shall ensure that its subcontractors shall comply with the confidentiality provisions specified in Section 7. ProductSense shall be liable for the work of its subcontractors as for its own.

13.2 Assignment. Neither Party may assign, transfer or novate this Agreement any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior express written consent of the other Party. Notwithstanding the foregoing, ProductSense may assign the Agreement without a prior written consent of the Customer to its Affiliate or as part of a sale of a relevant business or similar corporate transaction. Any attempt by a Party to assign its rights or obligations under this Agreement in breach of this Section shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the Parties, their respective successors and permitted assigns.

13.3 Entire Agreement. The Agreement, including the Data Processing Addendum (if applicable) along with any annexes attached hereto and incorporated herein by reference, sets forth the entire agreement between the Parties in this subject matter and supersedes any prior proposals and representations between the Parties, whether written or oral. To the extent of any conflict or inconsistency between the provisions these Terms of Service and remaining parts of the Agreement, the terms of such remaining parts of the Agreement shall prevail.

13.4 Severability. If any provision of the Agreement is or becomes illegal, invalid or unenforceable in any jurisdiction that shall not affect: (a) the legality, validity or enforceability in that jurisdiction of any other provision of the Agreement; or (b) the legality, validity or enforceability in any other jurisdiction of that or any other provision of the Agreement.

13.5 Waivers. All waivers must be in writing. Any waiver or failure to enforce the Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.

13.6 Amendments. All amendments and modifications to the Agreement shall be made by a written document signed by both Parties. Notwithstanding the foregoing, ProductSense has the right to continuously improve and develop the Software Service.

13.7 Notices. Any notice required or permitted to be given under the Agreement shall be in writing and shall be deemed to have been duly given if sent by registered mail, courier or email to the respective addresses of the Parties as set forth in the Main Agreement.

13.8 Force Majeure. If the performance of any part of the Agreement or any obligation under it (other than for the payment of amounts due hereunder) is prevented, restricted or interfered with due to act of government, embargo, trade sanctions, strike or labor dispute, failure of transportation, fire or flood or other casualty, internet or telecommunications failure, or failure of licensors, subcontractors or suppliers arising from a like cause or from any other cause beyond the reasonable control of the affected Party, the affected Party will be excused from such performance for so long as and to the extent that such force prevents, restricts or interferes with that Party’s performance provided the affected Party (i) provides prompt written notice of such interference, the nature of such interference and the expected duration of such interference to the other Party; and (ii) resumes performing its obligations hereunder promptly following the removal of such interfering condition. If any of these conditions continue for a period of more than three (3) consecutive months, either Party may terminate the Agreement with one (1) month’s prior written notice to the other Party.

14 Governing Law and Dispute Resolution

14.1 The Agreement shall be governed by and construed in accordance with the laws of Finland, excluding its choice of law provisions. The United Nations Convention on Contracts for the International Sale of Goods does not apply to transactions under the Agreement. 

14.2 Any dispute, controversy or claim arising out of or relating to the 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 by sole arbitrator. The place of arbitration shall be Helsinki, Finland. The language of the proceedings shall be English unless the Parties otherwise agree.

14.3 Notwithstanding Section 14.2, ProductSense shall have nevertheless the right to file a claim for outstanding receivables under the Agreement at the district court of ProductSense’s domicile.