as of 7 Feb 2024

1. Scope of application

These Terms of Service (“Terms of Service”) apply to the contractual relationship between the Client (as defined below) and Focal (as defined below) and constitute an integral part of the Agreement (as defined below) between the Parties (as defined below).

PLEASE READ THESE TERMS CAREFULLY. BY REGISTERING FOR, ACCESSING, BROWSING, AND/OR OTHERWISE USING THE FOCAL SERVICES, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THESE TERMS. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, DO NOT ACCESS, BROWSE OR OTHERWISE USE ANY FOCAL SERVICES.

2. Definitions

In the Agreement and the Terms of Service:

• “Agreement” means the agreement between the Client and Focal concerning Terms of Service together with the Order Form(s) and any appendices thereto which shall govern the provision of the Service by Focal and the use of the Service by the Client.
• “Client” means a company or other entity who has accepted these Terms of Service and is a Party of the Agreement.
• “Fee” means a price charged for a specific service provided by Focal.
• “Parties” means the Client and Focal collectively.
• “Party” means the Client or Focal, each separately.
• “Price List” means Focal’s standard price list for the Clients.
• “Service” means the online marketing tool provided by Focal.
• “Focal” means Focal Technologies Ltd., a limited company registered in Finland under company number 3235589-3, whose registered post address is at Paasivuorenkatu 4A, 00530 HELSINKI, FINLAND.

3. Client services

Focal provides the online collaboration tool that the Client can use in, for example, marketing campaigns and projects. Focal grants the Client and its authorized users a non-exclusive, non-transferable, non-sublicensable license to use the Service to: collect, store, and organize Client’s data, such as adding new photos and videos and creating marketing projects; assigning activities to a particular user; modifying and deleting Client’s data; customizing the standard features or functionality of the Services.

Focal reserves the right to modify the Services or any part or element thereof from time to time without prior notice. Focal may from time to time make additional features available through the Services, which may be subject to additional terms. The Client's use of any such feature is subject to their acceptance of additional terms presented within the relevant feature or these Terms of Service.

Focal may offer certain features of functionality for the purpose of testing and evaluation (“Beta Service”). Focal reserves the right to fully or partially discontinue, at any time and from time to time, temporarily or permanently, any of the Beta Services with or without notice to the Client. The Client agrees that Focal will not be liable to the Client or any third party for any harm related to, arising out of the Client's use of the Beta Services, or caused by the modification, suspension or discontinuance of any of the Beta Services for any reason.

Although the Service is designed to assist as a tool for improving your team collaboration and productivity, the Service may not be appropriate for your particular purposes. You agree that you are solely responsible for determining whether the use of Focal is appropriate for your business, AND YOU HEREBY AGREE TO HOLD FOCAL HARMLESS FOR ANY LOSS ARISING FROM OR RELATING TO YOUR USE OF OUR SERVICE(S).

3.1 Suspension of Service

Focal does not guarantee uninterrupted use of the Service. Focal shall seek to repair errors notified by the Client within a reasonable time or, depending on the nature of the error, in connection with the further development of the service.

Focal is entitled to suspend the use of the service if it is necessary for the maintenance, repair or development of the service or if there is some other justified reason for doing so. Focal shall seek to notify the Client of any interruptions in the use of the service in advance.

If the Client does not make a payment to Focal and the payment is more than thirty (30) days late, Focal has the right to suspend the use of the Service from the Client.

3.2 Operations of the Client

The Client shall comply with the laws, decrees, and orders of the public authorities in its operations pursuant to the Agreement.

3.3 Fees

The use of the Service is subject to a Fee. Upon sign-up for the Service, the Client must select a Plan. Different rates apply to different Plans under the Price List. The applicable Fee is charged in advance on monthly or annual payment intervals. All Fees are non-refundable, i.e. there are no refunds or credits for periods where the Client did not use the Service, used it only partially or terminated this Agreement during an ongoing payment interval. If, after signing up, Client elects to upgrade to a more expensive version of the Service, the unused portion of any prepaid Fees shall be applied to the Fee of the more expensive version of the Service.

All Fees are exclusive of all taxes, levies or duties applicable under any applicable law. Client is solely responsible for the payment of such taxes, levies or duties.

4. Payment

Focal may seek pre-authorization of Client’s payment card account prior to purchase of the Services in order to verify that the card is valid and has the necessary funds or credit available to cover your purchase. The Client authorizes such payment card account to pay any amounts described herein and authorize Focal to charge all sums described in the Terms of Service to such card account. The Client agrees to provide updated information regarding Client’s payment card account upon Focal’s request and any time the information earlier provided is no longer valid.

If Focal has not sought pre-authorization of your payment card, then before the end of each payment interval, the Client will be issued an electronic invoice for payment of the Fee of the next payment interval. Client must pay the invoice by the due date indicated on the invoice.

Upon delay with any payments, Focal may require the Client to pay interest on the delay (penalty for late payment) for the period as of the time the payment obligation falls due until conforming performance is rendered.

5. Privacy and personal data

The Parties will comply with applicable (e.g., EU, Finnish and US) privacy and personal data legislation. Focal's Privacy Policy (https://app.focal.inc/assets/focal_pp.pdf) is hereby incorporated into these Terms of Service. When Focal processes personal data, Focal's Data Processing Agreement (https://app.focal.inc/assets/focal_dpa.pdf) applies to these Terms of Service, and thus this Focal's Data Processing Agreement is hereby incorporated into these Terms of Service.

Please read the Privacy Policy and Processing Agreement carefully as it governs collection, use, and disclosure of Client’s and/or its user’s personal information.

5.1 Roles

In providing the Service, Focal will process personal data submitted to and stored within the Service by the Client or third parties. To the extent that Focal processes personal data in the course of providing the service, it will do so only as a processor acting on behalf of the Client, who is the controller.

5.2 Uploading Client Data to Platform

If the Client uploads Client's data to the Service, such data and any processing of such data must be in compliance with these Terms of Service and applicable law. All rights, title and interest in and to the Client's data belong to the Client or third persons (including users, persons and organizations). By uploading Client's data to the Service, Client authorizes Supplier to process the Client Data.

5.3 Third Party Services

You have the option to utilize the Service alongside third-party websites, platforms, or applications ("Third Party Service(s)"). When using a Third Party Service, you are bound by the terms and conditions specific to that service. Focal does not provide any assurances or guarantees regarding Third Party Services and explicitly denies any liability arising from your utilization of such services.

• Google Drive. Terms of Service and Privacy Policy.
• Youtube. Terms of Service and Privacy Policy.
• Slack. Terms of Service and Privacy Policy.
• Meta. Terms of Service and Privacy Policy.
• TikTok. Terms of Service and Privacy Policy.
• Figma. Terms of Service and Privacy Policy.

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6. Confidentiality

The parties undertake to keep confidential all information obtained from the other parties that are marked as confidential or should be understood to be confidential. A Party is not entitled to disclose any confidential information to any third parties or to use such information for any other purpose than those in accordance with the Agreement without the written consent of the other Parties.

However, Focal is entitled to disclose confidential information relating to the activities in accordance with the Agreement of the Client to one another, their group companies, subcontractors and authorities, as well as to any necessary third party who shall assist Focal to provide these Services. And Focal may disclose a Client’s confidential information to the extent compelled by law to do so. In such instance, Focal will use commercially reasonable efforts to provide Client with prior notice of the compelled disclosure (to the extent legally permitted) and Client shall provide reasonable assistance, at its cost, if Client wishes to contest the disclosure.

For the sake of clarity, derogation from confidentiality, Focal may use the Client's name and logo for reference purposes.

The confidentiality obligation shall remain in force for the term of the Agreement and for three (3) years after its termination unless a longer confidentiality period for certain information is required by law.

7. Intellectual Property Rights

The Services, Materials, Focal trade names and trademarks, and any parts or elements thereof are solely and exclusively owned and operated by Focal and its third-party vendors and hosting partners. Use of the Services, and any parts or elements does not grant any ownership right or intellectual property rights therein.

Any commercial or promotional distribution, publishing or exploitation of the Focal’s materials is strictly prohibited unless you have received the express prior written permission from Focal or the otherwise applicable rights holder. Focal reserves all rights to the Services, materials and its trade names and trademarks not expressly granted in the Terms of Service.

Focal may use Client's data in an aggregated or anonymized format for research, educational and other similar purposes. Focal may not otherwise use or display Client's data without Client’s written consent. Focal respects your right to exclusive ownership of your Client's data.

Unless specifically permitted by the Client, use of the Services does not grant Focal the license to use, reproduce, adapt, modify, publish or distribute the Client's data created by the Client or stored in its Account for Focal’s commercial, marketing or any similar purpose. Client expressly grants Focal the right to use and analyze aggregate system activity data associated with use of the Services by the Client and its users for the purposes of optimizing, improving or enhancing the way the Services operate, and to create new features and functionality in connection with the Services in the sole discretion of Focal.

8. Disclaimers; No Warranty

UNLESS OTHERWISE EXPRESSLY STATED BY FOCAL, FOCAL AND ITS AFFILIATES DO NOT WARRANT THAT THE SERVICES AND ANY CONTENT, OR FEATURES MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SERVICES AND ANY CONTENT, CLIENT DATA, SERVICES, OR FEATURES MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE SERVICES OR THE SERVER THAT MAKES THEM AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.

UNLESS OTHERWISE EXPRESSLY STATED BY FOCAL, FOCAL AND ITS AFFILIATES DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SERVICES, MATERIAL OR ANY LINKED SITES, IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE.

9. Compensation for damage and limitations of liability

The Parties shall be liable for damages caused to the other Party in breach of the terms of the Agreement in accordance with this section with the limitations stated below.

No party is liable for any indirect or consequential damage, including loss of market share, turnover or production, or for unaccrued interest.

Focal’s liability for an error in or delay of the service is limited to rectifying the error or, alternatively, to the re-performance of an erroneous or delayed service. However, Focal is liable for direct damage caused to the Client through negligent breach of the Agreement and demonstrated by the Client, to an amount that is limited, as per each such event, to a maximum of the commissions for one month immediately preceding such event, and as per each contract year, to a maximum of three (3) months’ commissions. For the sake of clarity, Focal is not liable for any corruption or loss of the Client's data, or for any other events under circumstances deemed exceptional.

Under no circumstances shall Focal be liable for any error, delay or damage that has been caused by a matter that Focal is not responsible for, such matters including, for example, the functionality of payment cards, payment terminals or their data.

However, the limitations of liability set out in this section do not apply to Section 5 (Privacy and personal data) and 6 (Confidentiality) or damage caused by wilful misconduct or gross negligence.

The Client is not entitled to receive compensation for an error or delay or for damage that has been caused by a breach of the obligations under this Agreement unless the Client has submitted a written demand to Focal, within a reasonable time, but at the latest 30 days from when the Client noticed or should have noticed it.

10. Amendments to the Agreement and service

Focal is entitled to amend the service, the terms and conditions of the Agreement and/or the prices or pricing structure by notifying the Client of this in writing or electronically either in the card settlement report or using other electronic communications tools at least one (1) month before the change enters into force.

If the amendment is not due to an act, a decree, an order or decision given by an authority or amendments to the rules or instructions of the International Card Organisations and the amendment is detrimental to the Client, the Client is entitled to terminate the Agreement before the amendment enters into force by a written notice to Focal. If the Client has not terminated the Agreement in writing prior to the entry into force of the amendment, the Client will be deemed to have approved the amendment and the Agreement will be binding upon the Client in its amended form.

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11. Force majeure

A Party is not liable for any errors, delays or damage caused by an unusual and unforeseeable reason beyond the Party’s control, the consequences of which the Party could not have avoided taking all due care. Events considered to be force majeure include, e.g., actions taken by an authority that prevents or essentially impede the performance of the Agreement, war or insurrection, telephone or data traffic or of any other electronic communications networks, interruptions of general payment transactions, strikes or any other industrial actions.

12. Discrepancies

In case of any discrepancies between the documents of the agreement, they shall apply in the following order:

1. these Terms of Service;
2. Privacy Policy; and
3. other annexes.

13. Assignment of the agreement

A Party is not entitled to assign or transfer this Agreement or a part thereof without the written consent of the other Party. However, Focal is entitled to assign the Agreement in full or in part to a company or other entity within the same group of companies or to the receiving company in a transfer of business operations.

14. Settlement of disputes

This Agreement shall be governed by the laws of Finland, and any disputes will be settled at the District Court of Helsinki as the court of the first instance.

15. Validity of the Agreement and terms

These Terms of Service will enter into force on 1 June 2022 and will be in force until further notice. The use of the Services is subject to acceptance of these Terms.

The Agreement is valid until further notice and may be terminated upon one (1) month notice. Derogation from the above, the Agreement is in any event valid as long as the Client has paid the service fee. Therefore, if the Client has paid the one-year fee, the Agreement is valid for the entire paid period.

In any event, Focal may in its sole discretion, elect to suspend or terminate access to, or use of the Services to anyone who violates these Terms.

Each Party is entitled to cancel the Agreement with immediate effect by a written notice to other Parties if:

1. the other Party has materially breached the Agreement, or
2. the other Party has applied for bankruptcy or has been placed in liquidation or in restructuring proceedings or has been found to be insolvent in foreclosure.

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