Terms of Service
TERMS OF SERVICE
GENERAL
These terms of service (the ”Terms”) shall apply to all services (the “Service(s)”) provided to Plug’s customer (the ”Customer”) by us (“Plug”) unless otherwise expressly agreed in writing between the Customer and Plug. We are a Finnish limited liability company with an official business name “FKFH & Co Oy” (Finnish business ID 3389148-7). In these Terms, we shall refer to ourselves by our brand name “Plug” or by referring to “we/us”. The contract parties (i.e. Plug and the Customer) shall together be referred to as “Parties” or separately as a “Party”.
The Customer acknowledges that these Terms apply solely to the Services provided by Plug. The Customer accepts not to make competing agreements with employees, key persons or subcontractors of Plug without an express written consent from Plug.
These Terms form an integral part of the entire agreement between the Customer and Plug (the “Agreement”). The Agreement governs the rights and obligations regarding the use of our Services. By signing or otherwise accepting the Agreement or by using our Services, the Customer agrees that they are also subject and bound to these Terms. The Agreement can be made with us by accepting our Order Form or by accepting other similar contract documents with us (such as an offer).
GENERAL DEFINITIONS OF OUR SERVICES
Our Services will be described to the Customer in the Agreement. However, sometimes we need to clarify the contents and definitions of our Services also in other communication forms, such as in the email correspondence with the Customer or in the marketing and online material published by us. In case, there should be discrepancies or confusion between different definitions of our Services, the definitions laid out in the Agreement shall prevail. If there would be a client-specific service description defined in the Order Form (or appendices or similar contract documents thereof), this client-specific service description should prevail.
In general, if not otherwise specified, our Services include the production of ad creatives to our Customers as agreed in the Agreement.
For the purposes of the Agreement, the following terms shall have the following definitions and meanings, unless otherwise agreed:
- “Online Advertising Platform” means any platform, website or social media channel accessible online where advertisements may be displayed or otherwise distributed.
- “Ad Account” means a predefined advertising account registered with the online advertising platform (e.g. Meta, TikTok, Snap) or other similar third-party service provider.
Our Creative Service is designed to help our Customers optimise their advertising campaigns. Plug is entitled to produce our Services as we deem appropriate. Third-party software and Online Advertising Platforms are constantly evolving and, as a result, our Services may change.
PLUG’S RESPONSIBILITIES
Plug shall use its best efforts to perform the Services and to achieve the Parties’ mutually envisaged goals and in cooperation with the Customer.
For the purposes of these Terms, Plug´s “best efforts” means that it will (a) use professional skill and care in the performance of the Services, (b) make such efforts as would be made by a reasonable person of the same kind in the same circumstances, while (c) observing such other quality standards that the Parties may be agreed on in writing.
RESPONSIBILITIES OF THE CUSTOMER
The Customer shall provide Plug a comprehensive brief of its needs and reasonably cooperate with Plug to enable Plug to provide the Services in a timely and optimal manner.
The Customer provides assistance, technical information, and decisions to Plug, as reasonably requested by Plug. The Customer will work closely with the Plug to provide all the needed information and feedback so Plug can provide the Service in an appropriate manner.
The Customer shall have a sole responsibility for ensuring the accuracy of all information provided to Plug. The Customer ensures that its relevant employees have the necessary skills and authority to participate and provide information and decisions as required. The Customer is responsible for the suitability of the Services for the Customer’s intended purposes. Plug is not liable for any errors, defects, liabilities, or delays in the Services that are attributable to the Customer’s non-compliance with its foregoing obligations.
DELIVERY AND ACCEPTANCE
If the Customer does not report any errors when receiving Deliverables, the Customer is deemed to have accepted the performance of Creative Service. Plug agrees to take corrective action without undue delay from the notification by the Customer, if there are typographical errors, incorrect content placements, under deliveries or omission of copy in the delivered results that render the results valueless, unless such errors are due to the Customer.
The Customer may not claim a breach, terminate, or cancel the Services or any part thereof if there are typographical errors, incorrect ad placements, under deliveries, omissions or errors in advertising, social media and website content provided by Plug. Plug will not be liable to the Customer for any loss or damage that results from a typographical error, incorrect ad placement, underdelivery, omission or error related to the products and Services it has provided. For the sake of clarity, this section does limit the Customer´s right to terminate the Agreement in accordance with the termination rules and time periods set forth in the Order Form or other applicable contract document.
INTELLECTUAL PROPERTY RIGHTS
All intellectual property rights, including, but not limited to, rights to patents, utility models, trademarks, designs, copyrights, neighbouring rights, business names and any other rights, whether eligible for registration or not, as well as any rights producing rights without registration, held by either Plug or by the Customer prior to the signing of the Agreement (“Background IP”) shall remain the sole property of Plug or the sole property of the Customer respectively.
Unless otherwise expressively specified herein, in the Agreement or in the offer, all intellectual property rights, including but not limited to trademarks, product names, logos, patents, trade names, domain names, designs, copyrights and customer-specific results of the Services (“Intellectual Property”), as well as any goodwill in such results, shall be the sole property of Plug or its licensors. However, for the sake of clarity, advertisement material of the Customer, shall remain the sole property of the Customer and hence Plug shall only use such advertisement material for the performance of the Services.
If Plug would create client-specific creative content for the Customer in accordance with Creative Services, then Plug would grant the Customer an unlimited usage right for results/contents of such Creative Service, though subject to the full payment of the Services. For the sake of clarity, in some situations, Plug might still need to make limitations to the rights for the contents of the Creative Services, but these limitations will be expressly defined in the Order Form (or appendices thereof) or in the other more case-specific document.
Plug may use material belonging to a third party when providing the Services. Such material may be included in the results of the Services in accordance with the applicable terms of the use of the materials. Plug will obtain the Customer´s prior approval for the use of such materials subject to acceptance of third-party licence terms unless it would be an open-source license, other similar unlimited license or a customary license, which could be used without creating a substantial intellectual property right conflict risks.
For the sake of clarity, all intellectual property rights belonging to the Online Advertising Platforms or other third parties shall remain the sole properties of such third parties or their licensors.
REFERENCE RIGHT
As a reference right, Plug may mention in its marketing material and on its website the Customer’s name, logo as well as other case-specific material of the Customer for the description and visualization of the reference case, unless otherwise agreed in writing.
PRICES AND PAYMENT
Plug may invoice for the Services as set out in the Agreement or in the offer or, if the Agreement or the offer do not specify prices, according to its standard fees and rates as in effect from time to time. If not otherwise agreed upon in writing, the fees will be invoiced up-front on a monthly basis or upon completion of the Service as determined most appropriate by Plug. Unless otherwise agreed, the payment term will be 14 days net. Plug may charge late-payment interest on any overdue payments as provided for in law.
CANCELLATION OF AN ORDER
Plug may stop providing the Service with immediate effect, upon notice to the Customer, for any of the following reasons:
- if the Customer fails to make payment when due or otherwise fails to perform any of the provisions of these Terms;
- if the Customer makes an assignment for the benefit of the creditors;
- if a petition in bankruptcy or for reorganization under the bankruptcy or insolvency laws is filed by or against the Customer;
- if the Customer ceases doing business or is likely to cease doing business; or
- in the opinion of Plug, the credit of the Customer is or may be impaired.
- if the Customer is in substantial breach of the Agreement.
The Customer will nevertheless remain liable for balances due on the Services ordered, whether billed or unbilled, and Plug will send an invoice to the Customer, which the Customer agrees to promptly pay.
PERSONAL DATA
Plug processes the personal data of the Customer’s employees in accordance with the Plug’s privacy policy and applicable data protection legislation of Finland. The privacy policy, as amended from time to time, may be published on Plug´s website or requested from Plug via email.
Plug shall not be regarded as a processor of the personal data controlled by the Customer unless otherwise agreed in the specific data protection agreement between the Customer and Plug. The Customer is responsible for informing Plug of such data processing obligations and for making sure that all legislative requirements for the data controller and the data processor are duly taken care of.
NON-COMPETE AND NON-SOLICITATION RESTRICTIONS
During the term of the Agreement and for a period of twelve (12) months following the end of the Agreement, the Customer shall not in any manner whatsoever engage in competitive business with the Plug´s current lines of business. For the sake of clarity, this does not limit the Customer´s right to manage their own marketing projects as they feel best and without the support of Plug.
During the term of the Agreement and for a period of six ( 6 ) months following the end of the Agreement, the Customer shall not (i) hire, engage or solicit to hire or engage any individual who was engaged as a contractor or consultant or employed by Plug, (ii) otherwise induce or attempt to induce any individual who is engaged as a contractor or consultant or employed by Plug to terminate such engagement or employment, or (iii) in any way interfere with the relationship between Plug and any individual who is engaged as a contractor or consultant or employed by the Company.
LIMITATION OF LIABILITY
In no event will Plug be liable to Customer for any loss of profit, incidental or indirect damages arising out of the Services.
The Customer understands and accepts that the nature of marketing and advertising is such, that the Customer needs to bear the sole responsibility for the outcomes of their marketing and advertising projects, even if they would use contractors for the fulfilment of their business goals. Therefore, the Customer shall bear the sole responsibility for the outcomes of the Services provided by Plug.
For the sake of clarity, the following situations will not create compensation, reimbursement or any other liabilities for Plug in any event:
- human errors that are not made by Plug´s personnel.
- dysfunction of Online Advertising Platforms or other third-party software or services.
- services provided by a freelancer or any other third party, who are not subcontractors of Plug.
- wrong creative content, unless there should be a substantial human error by Plug´s personnel.
In any event, Plug´s total liability to Customer will be limited to the payments received from the Customer under the last three ( 3 ) months’ time period preceding the contractual breach or substantial human error by Plug´s personnel.
For the sake of clarity, any limitation of liability herein shall not limit liability for loss caused through wilful misconduct, gross negligence or for such liability for which liability cannot be limited under applicable mandatory laws of Finland.
Plug shall not be liable for any failure to perform any of its obligations due to an event of force majeure. Events of force majeure are events beyond the control of Plug and include, without limitation, war, civil unrest, strikes, lock-outs, pandemics, power outages, internet interruptions, other labour disputes, acts of government, extreme weather, natural disasters, accidents or some other unusual event with equally drastic effects.
CHANGE OF TERMS
Plug is committed to respecting the contractual responsibilities set forth in our contracts. Due to the nature of Plug’s business, Plug might need to make amendments to Plug’s terms of service or other contractual documents from time to time in order to comply with changing business and legal needs. However, if Plug needs to change contractual documents, Plug would duly inform all changes to Plug’s Customers and Plug’s Customers would have a right to decline the changes by following the rules set forth in this paragraph.
In case, Plug wants to change or amend its contractual documents, it needs to send the updated contract document (such as the Terms of Service) to the Customer´s commercial contact person via email. If the Customer does not accept the updated contract document, the Customer needs to inform this to Plug in order to start a contract negotiation, or alternatively the Customer has a right to terminate the Agreement by following the termination rules and time periods set forth in the Agreement. If the Customer should not use its right to terminate the Agreement within 30 days from the receipt of the updated contract document, then the updated contract document shall become effective immediately after the lapse of the said 30-day period. However, for the sake of clarity, if the Customer decides to terminate the Agreement due to the change of our contract document, then the Agreement shall stay in force without any changes until the end of the Agreement.
Generally, Plug shall use the right to change the contractual documents, only if Plug considers that Plug’s business or legal needs make it necessary to update the terms. In these situations, Plug wants to create models and solutions, which are acceptable to Plug’s existing customers.
GOVERNING LAW AND DISPUTE RESOLUTION
These Terms and the Agreement shall be governed according to the laws of Finland, with the exception of the rules and regulations that would lead to another country’s laws applying.
Any dispute, controversy or claim arising out of or relating to this contract, 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. The seat of arbitration shall be Helsinki Finland. The language of the arbitration shall be the language in which Plug’s relevant offer was made in or, if the language cannot be determined on this basis, English. However, if both Parties are Finnish limited liability companies or other Finnish organizations, then Plug has a right to decide that the language of the proceeding is Finnish but evidence can be presented in English as well.
Evidence may, however, be submitted in any language the arbitral tribunal considers appropriate in view of the circumstances and the Parties.
Plug may, however, also take legal action in the District Court of Helsinki or other competent court of law in respect of any unpaid invoiced amounts.