US Terms and Conditions
These terms of service, together with a completed and executed Statements of Work, shall form the Agreement between Face US Inc d/b/a PULSAR, a corporation located at 1370 N St Andrew’s Place Los Angeles, CA 90028, United States (“PULSAR”) and you (the “Customer”)
BACKGROUND
(A) PULSAR is engaged in delivering social media research and management software and consultancy.
(B) PULSAR has developed a range of social media analytics and management software products in connection with its business.
(C) The Customer wishes to acquire a licence to use the software indicated in the Statements of Work pursuant to the terms of this Agreement.
OPERATIVE PART
1 Definitions and Interpretation
1.1 In this Agreement, unless the context otherwise requires:
Agreement
means this agreement, together with the Statements of Work;
Business Day
means 9am until 5:30pm on a day (ET or EDT) (other than a Saturday, Sunday or a public holiday);
Confidential Information
means any information relating to the business of the disclosing party which is not publicly available, including, but not limited to, any information specifically designated by the disclosing party as confidential; any information supplied to the disclosing party by any third party in relation to which a duty of confidentiality is owed or arises; and any other information which should otherwise be reasonably regarded as possessing a quality of confidence or as having commercial value in relation to the business of the disclosing party;
Controller
shall have the meaning given in the relevant provisions of the Data Protection Laws;
Data Protection Laws
means the GDPR, the Law Enforcement Directive (Directive (EU) 2016/680) and any applicable laws as amended from time to time, the United Kingdom Data Protection Act 2018 (subject to coming into force) and all applicable law about the processing of personal data and privacy;
Fees
means those fees payable by the Customer to PULSAR under this Agreement as set out in the Statements of Work;
GDPR
means the General Data Protection Regulation (EU) 2016/679;
Historic Mention
means a Mention which has been located by the Software prior to a Query Start Date;
Historic Query
means a Query which relates to a period of time prior to a Query Start Date;
Intellectual Property Rights
means any and all patents, rights in inventions, rights in designs, trademarks, trade and business names and all associated goodwill, rights to sue for passing-off or for unfair competition, copyright, moral rights, publicity and privacy rights, and related rights, rights in databases, topography rights, domain names, rights in information (including know-how and trade secrets) and all other similar or equivalent rights (subsisting now or in the future) in any part of the world, in each case whether registered or unregistered and including all applications for, and renewals or extensions of, such rights for their full term;
Mention
means, in relation to Pulsar TRAC Software, a webpage or section of a webpage which meets the specifications set out in a Query and which is located by the Pulsar TRAC Software;
Personal Data
shall have the meaning given in the Data Protection Laws;
Premium Source
means a source from which Mentions are generated and in respect of which an additional fee is payable in accordance with the Statements of Work;
Processor
shall have the meaning given in the relevant provisions of the Data Protection Laws;
Pulsar CORE Software
means the Pulsar CORE proprietary channel effectiveness software system developed and owned outright by PULSAR;
Pulsar CORE Profile
means a single Facebook Page or Instagram Profile or Twitter profile or YouTube channel or Google Analytics webpage
Pulsar TRAC Software
means the Pulsar TRAC proprietary software system developed and owned outright by PULSAR;
Pulsar TRAC Software Daily Limit
means 5,000 Mentions per day;
Pulsar TRAC Software Monthly Limit
means 200,000 Mentions per month per search;
Quarter
means each consecutive period of three (3) months beginning with the period from the Subscription Start Date and expiring after three (3) months;
Query
means, in relation to Pulsar TRAC Software, a search string which is submitted by the Customer and/or any agents acting on its behalf and which specifies the words which must be present on a webpage;
Query Start Date
means, in relation to Pulsar TRAC Software, the date and time at which a Query is submitted;
Search
means, in relation to Pulsar TRAC Software, a search string which is submitted by the Customer and/or any agents acting on its behalf and which specifies the words which must be present in Facebook Interaction including, but not limited to, posts, reshares and comments;
Search Start Date
means, in relation to Pulsar TRAC Software, the date and time at which a Search is submitted;
Service Manager
means the service managers appointed by Customer and PULSAR as set out in the Statements of Work;
Services
means the services provided by the Software under this Agreement;
Software
means Pulsar CORE Software and Pulsar TRAC Software software-as-a-service products offered by PULSAR that are ordered by the Customer using the Statements of Work;
Statements of Work
means the statement of works to be completed and executed by PULSAR and the Customer;
Subscription End Date
means the subscription end date set out in the Statements of Work;
Subscription Start Date
means the subscription start date set out in the Statements of Work;
Term
means the term of this Agreement, commencing on the Subscription Start Date and, subject to the provisions of clause 10, continuing until the Subscription End Date;
Territory
means the territory set out in the Statements of Work; and
User
means those employees, agents and independent contractors of the Customer who are authorised by the Customer to use the Services.
2 Licensing and Intellectual Property Rights
2.1 In consideration of payment by the Customer to PULSAR of the Fees, PULSAR hereby grants to the Customer a personal, revocable, non-exclusive, non-sublicensable, non-transferable licence to use the Software for its internal business purposes, subject to the terms and conditions set forth herein.
2.2 The Customer shall not publish, make available, sell, transfer, assign, sub-license or share with any third parties:
2.2.1 the Software;
2.2.2 any report derived from the Software or the Services; or
2.2.3 any comparison of data provided by one social media network against another social media network.
2.3 In addition, the Customer may not print, copy, reproduce, distribute, modify or in any other manner duplicate or create derivative works of the Software, in whole or in part, or translate, reverse engineer, decompile, decode, adapt or disassemble the Software or otherwise attempt to derive or gain access to the source code or any other component of the Software.
2.4 All Intellectual Property Rights in and to the Software and the Services are owned by PULSAR or its licensors and shall remain vested in PULSAR or its licensors. Save where expressly provided in this Agreement, the Customer shall not acquire any right, title or interest in and to any Intellectual Property Rights in the Software or the Services.
2.5 The Customer acknowledges that, in respect of any third party Intellectual Property Rights in the Software or the Services, the Customer’s use of any such Intellectual Property Rights is conditional on PULSAR obtaining a written licence from the relevant licensor on such terms as will entitle PULSAR to license such rights to the Customer.
2.6 The Customer shall promptly give PULSAR written notice of any claim, demand, suit or proceeding made or brought against the Customer by a third party alleging that the use of the Software or the Services in accordance with this Agreement infringes or misappropriates the Intellectual Property Rights of such third party (a “Claim”).
2.7 If the Customer notifies PULSAR of a Claim against it or other potential violation by the Software or the Services of any applicable laws, PULSAR may in its discretion:
2.7.1 modify the Software or the Services, at no cost to the Customer, so that they no longer infringe or misappropriate third party rights or fail to comply with any applicable law;
2.7.2 obtain a licence for the Customer’s continued use of the Software and the Services, at no cost to the Customer, in accordance with this Agreement; or
2.7.3 terminate this Agreement upon thirty (30) days’ written notice and refund to the Customer any fees paid covering the period after the effective date of termination.
3 Services
3.1 PULSAR shall perform the Services and fulfil its obligations as set out in this Agreement for the benefit of the Customer.
3.2 There will be a minimum period of five (5) Business Days between the Subscription Start Date and the provision by PULSAR to the Customer of login details and training in connection with the Services.
3.3 Each party shall appoint a Service Manager prior to the commencement of the Services to represent and co-ordinate communications between the parties in all matters relating to the Agreement.
3.4 PULSAR may make any changes to the Software or the Services which are necessary to comply with any applicable law or safety requirements or which do not materially affect the nature or quality of the Software or the Services.
3.5 The Customer acknowledges that the Services provided are subject to PULSAR receiving services and data supplied by social media networks. The Customer agrees that, it shall comply with such terms of service or policies.
3.6 The Customer agrees that PULSAR may include the Customer’s name and/or logo on PULSAR’s websites, including, but not limited to, www.pulsarplatform.com, save always that the Customer may opt-out of such inclusion by sending a written request to PULSAR.
4 Customer Obligations
4.1 The Customer shall not:
4.1.1 exceed the number of Users for whom it has purchased access to the Services under the Statements of Work;
4.1.2 access any part of the Services in order to build a product or service which competes with the Services or to copy any features, functions or graphics of the Services;
4.1.3 attempt to obtain, or assist third parties (other than Users) in obtaining, access to the Services; and
4.1.4 exceed the limits on the number of Mentions or Queries or Searches per month.
4.2 PULSAR shall inform the Customer when it is approaching its limit on the number of Mentions or Queries or Searches per month.
4.3 If the Customer exceeds its limit on the number of Mentions per month, then PULSAR may charge the Customer for the excess number of Mentions at a rate of $700 per 100,000 Mentions.
4.4 If the Customer exceeds its limit on the number of Queries or Searches per month, then PULSAR may charge the Customer for the excess number of Queries or Searches at a rate of or $1,200 per additional Query or Search. For the avoidance of doubt, each Search or Query is limited to 200,000 Mentions per month which if exceeded by the Customer will allow Pulsar to charge the Customer at a rate of $700 per 100,000 Mentions exceeded.
4.5 The Customer shall:
4.5.1 procure that each User shall keep his/her password for use of the Services secure and confidential;
4.5.2 ensure that the Users use the Services in accordance with the terms of this Agreement and shall be responsible for any User’s breach of this Agreement; and
4.5.3 be responsible for making all arrangements necessary for it to have access to the Services.
4.6 The Customer agrees not to publish any data, results or debrief findings derived from the Services in the public domain without the prior written consent of PULSAR.
4.7 The Customer acknowledges and agrees that when making use of the PULSAR Core Software, it shall comply with the YouTube Terms of Services as available at the following URL: https://www.youtube.com/t/terms.
5 Archiving Queries
5.1 If, following creation by the Customer of a Query or Search, the Customer either:
(a) pauses; and/or
(b) stops; and/or
(c) does not access,
the relevant Query or Search, for a period of at least four (4) months after the Query Start Date or Search Start Date, PULSAR may archive the relevant Query or Search.
5.2 For the avoidance of doubt, the Customer may, upon written request to PULSAR, access a Query or Search which has been archived pursuant to clause 5.1 above.
6 Fair Use
6.1 In relation to Pulsar TRAC Software, if PULSAR considers:
6.1.1 a Query or Queries to track or attempt to track all, or a significant proportion of, social media websites generally;
6.1.2 a Query or Queries is being used by the Customer to track multiple large brands;
6.1.3 a Query or Search will result in the processing of an amount of data which will adversely affect PULSAR’s performance of the Services and/or its services to any other customer;
6.1.4 constitute a Historic Query or Historic Queries which generates more than six (6) months’ worth of Historic Mentions in any one (1) month period; or
6.1.5 constitute a Query which generates a number of Historic Mentions which is equal to or more than 15% of the Customer’s total monthly limit of Mentions as specified in the Statements of Work,
then PULSAR may restrict the number of Mentions in respect of that Query, Queries or Search by providing the Customer with a list of sample Mentions only.
6.2 PULSAR shall use its reasonable efforts to notify the Customer in advance of implementing the restriction detailed in clause 6.1.
6.3 In relation to Pulsar CORE Software, the Customer agrees not to exceed 300 CORE Profiles at any time.
6.4 In relation to Pulsar TRAC Software where the Customer has purchased unlimited Mentions per month:
6.4.1 the Customer shall not create a Query or Queries that exceed(s) the Pulsar TRAC Software Daily Limit or the Pulsar TRAC Software Monthly Limit;
6.4.2 if the Customer creates a Query or Queries that exceed(s) the Pulsar TRAC Software Daily Limit or the Customer has used 80% of the Pulsar TRAC Software Monthly Limit, then PULSAR shall inform the Customer; and
6.4.3 if, after being informed in accordance with clause 6.4.2, the Customer creates a Query or Queries that exceed(s) the Pulsar TRAC Software Daily Limit or the Customer exceeds the Pulsar TRAC Software Monthly Limit, then, in each month where the Customer exceeds the Mentions, PULSAR may, for that month, charge the Customer $700 for every 100,000 Mentions in excess of the limits.
7 Fees, Payment and other Financial Provisions
7.1 The Customer shall pay to PULSAR the Fees set out in the Statements of Work in accordance with this clause 7.
7.2 All Fees shall be paid by the Customer to PULSAR by cheque or by electronic bank transfer no later than (i) thirty (30) days from the date of the relevant invoice, or (ii) the Subscription Start Date, whichever occurs first (“Due Date”).
7.3 All amounts set out in this Agreement shall be exclusive of any applicable taxes, which shall be paid by Customer at the rate and the manner prescribed by law from time to time.
7.4 Without limiting any other right or remedy that PULSAR may have, if the Customer fails to make any payment due under this Agreement within fourteen (14) days of the Due Date, the Customer shall pay interest on the overdue amount at the rate of 1.5% above the base rate of the Royal Bank Of Scotland per annum of the overdue amount accruing on a daily basis from the Due Date until the date of actual payment by the Customer to PULSAR of the overdue amount, whether before or after judgment, and compounding quarterly.
7.5 The Customer shall pay all amounts due under this Agreement in full without any deduction or withholding except as required by law, and the Customer shall not assert any credit, set-off or counterclaim against PULSAR in order to justify withholding payment of any such amount in whole or in part. PULSAR may, without limiting its other rights or remedies, set off any amount owing to it by the Customer against any amount payable by PULSAR to the Customer.
7.6 Without limiting any other right or remedy that PULSAR may have, PULSAR may suspend the Services if at any time the Customer falls in arrears with the payment of any amount of Fees then due to PULSAR (“Outstanding Fees”), which period of suspension (“Suspension Period”) shall be effected by service of written notice to the Customer and shall continue until receipt by PULSAR of the full amount of Outstanding Fees, provided always that the Suspension Period shall not be added to and/or affect the duration of the Term.
7.7 The Customer shall be made aware of any increase to the Fees during the Term and any such increase shall:
7.7.1 be limited to 10% of the Fees currently payable by the Customer pursuant to this Agreement; and
7.7.2 take effect after thirty (30) days after PULSAR has provided the Customer with written notice of such increase in Fees.
8 Audit
8.1 Customer shall, for a period of seven (7) years from creation, keep or cause to be kept full and accurate records pertaining to the licensing of the Software and delivery of the Services.
8.2 Customer grants to PULSAR the right to audit its use of the Software. The exercise of the audit right shall be directed towards confirming that Customer’s use of the Software is in accordance with the terms of this Agreement.
8.3 If any such audit result shows that a payment is owed to PULSAR, such payment shall be made by the Customer to PULSAR within thirty (30) days of the audit results being provided to the Customer.
9 Warranties and Liabilities
9.1 PULSAR does not warrant the accuracy, completeness, currency or reliability of any of the content or data derived from the Software or that the Software will be error free, virus free or secure.
9.2 THE SOFTWARE IS PROVIDED “AS IS,” AND PULSAR EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS (TO THE EXTENT PERMISSIBLE BY LAW), INCLUDING IMPLIED WARRANTIES AND CONDITIONS, OF SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, AND THOSE ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE.
9.3 PULSAR DOES NOT GUARANTEE THAT THE SERVICE OR ANY CONTENT ON IT WILL ALWAYS BE AVAILABLE OR BE UNINTERRUPTED. ACCESS TO THE SERVICES IS PERMITTED ON A TEMPORARY BASIS. PULSAR MAY SUSPEND, WITHDRAW, DISCONTINUE OR CHANGE ALL OR ANY PART OF THE SERVICES AT ANY TIME AND FOR ANY REASON WITHOUT NOTICE. PULSAR WILL NOT BE LIABLE TO THE CUSTOMER IF FOR ANY REASON THE SERVICES ARE UNAVAILABLE AT ANY TIME OR FOR ANY PERIOD.
9.4 The Customer acknowledges and agrees that PULSAR shall not be in breach of any obligations under this Agreement where such obligations are impacted by: (a) any internet connection or software under the Customer’s control; (b) any change to terms of use or access to social media sites (including, without limitation, Twitter or Facebook rules); or (c) interruption to the Software or the Services as a result of any act or omission of a third party (including any service provider of PULSAR).
9.5 The Customer shall indemnify PULSAR and its affiliates against all and any claims, loss or damages incurred as a direct or indirect result of any breach by the Customer of any of its obligations in this Agreement to include, but not be limited to, any act or omission of the Customer or any party authorised or permitted by it to use the Software or the Services under this Agreement (including, but not limited to, Users).
9.6 Subject to clause 9.6 and to the maximum extent permitted by law, neither party, nor their respective employees, officers, directors, affiliates agents or suppliers, shall be liable for any consequential, special, incidental or indirect damages, or lost or imputed profits or royalties, lost data or cost of procurement of substitute goods or services arising from or related to this agreement, whether for breach of warranty or any obligation arising therefrom or otherwise, however caused and on any theory of liability (including negligence or strict liability) and irrespective of whether the party has advised or been advised of the possibility of any such loss or damage.
9.7 Nothing in this Agreement shall limit or exclude either party’s liability for death or personal injury resulting from its negligence, fraud or fraudulent misrepresentation or any matter which cannot be limited or excluded by law.
9.8 Subject to clause 9.6, PULSAR’s total liability to the Customer in respect of all other losses arising under or in connection with this Agreement, whether in contract, tort (including negligence), breach of statutory duty or otherwise, shall in no circumstances exceed the total of twelve (12) months’ Fees payable under the applicable Statements of Work.
10 Term and Termination
10.1 THE PARTIES AGREE THAT THE TERM OF THIS AGREEMENT SHALL RENEW AUTOMATICALLY FOR AN ADDITIONAL TWELVE (12) MONTH PERIOD UNLESS THE CUSTOMER PROVIDES PULSAR WITH WRITTEN NOTICE OF ITS INTENTION NOT TO RENEW THE TERMS OF THIS AGREEMENT AT LEAST ONE (1) MONTH PRIOR TO THE EXPIRATION OF THE TERM.
10.2 Without prejudice to any right or remedy either party may have against the other for breach or non-performance of this Agreement, either party may, by notice in writing to the other party, terminate all or any part of this Agreement on or at any time after the happening of any of the following events:
10.2.1 if the other party commits a material breach of any of the terms of this Agreement provided that, where such breach is capable of remedy, the other party has been notified in writing of the breach and has not cured it within thirty (30) days of receipt of such notice;
10.2.2 the passing by the other party of a resolution for its winding-up (except in connection with a bona fide business re-organisation) or the making by a court of competent jurisdiction of an order for the winding-up of the other party or the dissolution of the other party;
10.2.3 the making of an administration order in relation to the other party or the appointment of a receiver or an administrative receiver over, or the taking possession or sale by an encumbrance of, any of the other party’s assets;
10.2.4 the other party making an arrangement or composition with its creditors generally or making an application to a court of competent jurisdiction for protection from its creditors generally; or
10.2.5 where a force majeure event (as described in clause 14.5) continues for four (4) weeks or more.
10.3 Without prejudice to any other rights or remedies available to it, the Customer may terminate this Agreement on or prior to the tenth Business Day after the Subscription Start Date by giving at least three (3) Business Days’ prior written notice to PULSAR.
10.4 Termination or expiry of this Agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of this Agreement which existed at or before the date of termination or expiry.
10.5 Following termination of this Agreement for any reason, each party shall immediately on request deliver to the other party all materials and copies thereof (whether in hard or electronic format) relating to the Confidential Information together with a written confirmation from a senior authorised representative that it has complied with all of its obligations under this Agreement.
10.6 Subject to PULSAR’s obligations regarding personal data, if, at the date of termination, there are no other agreements for services in force between the Customer and PULSAR, then PULSAR shall delete any Customer data that has been collected upon termination of this Agreement.
10.7 On termination or expiry of this agreement, the following clauses shall continue in force: clause 2 (Licensing and Intellectual Property Rights), clause 7 (Fees, Payment and other Financial Provisions), clause 9 (Warranties and Liabilities), clause 10 (Term and Termination), clause 11 (Confidentiality), clause
14.1 (Notices) and clause14.11 (Governing law).
11 Confidentiality
11.1 Neither party shall use, copy, adapt, alter, disclose or part with possession of Confidential Information, except solely as strictly necessary to perform its obligations or exercise its rights in this Agreement or with the written consent of the other party, except insofar as such Confidential Information:
11.1.1 is disclosed by Customer to any officers, employees, contractors or advisers of Customer (“Customer Recipients”) to the extent that such disclosure is reasonably necessary for the purpose of this Agreement, provided that Customer shall ensure that the Customer Recipient complies with Customer’s obligations of confidentiality under this Agreement;
11.1.2 is disclosed by PULSAR to any PULSAR employees or other officers, employees, contractors or advisers of PULSAR or Subcontractors (“PULSAR Recipients”) to the extent that such disclosure is reasonably necessary for the purpose of this Agreement, provided that PULSAR shall ensure that PULSAR Recipient complies with PULSAR’s obligations of confidentiality under this Agreement;
11.1.3 can be proved by the receiving party to have been in the public domain at the date it was disclosed to a third party;
11.1.4 is lawfully or properly obtained by the receiving party from a person without obligation of confidentiality;
11.1.5 comes into the public domain otherwise than through the default or negligence of the receiving party;
11.1.6 was independently developed by the receiving party without reference to the Confidential Information of the other party;
11.1.7 is, with the prior written consent of the other party (such consent not to be unreasonably withheld or delayed) disclosed to obtain or maintain any listing on any recognised stock exchange; or
11.1.8 is requested to be disclosed by a court, regulator or a body having similar authority over the receiving party, provided that, to the extent permitted by law, the other party is given prompt notice of such request.
11.2 Neither party makes any representation or warranty, express or implied, with respect to its Confidential Information. The disclosing party shall not be liable to the other party or another person in respect of the disclosing party’s Confidential Information or its use.
11.3 Each party acknowledges that breach by it of clause 11.1 may cause irreparable injury to the other party, which injury will be inadequately compensable in damages. Accordingly, each party is entitled to the remedies of injunction, specific performance and other equitable relief in respect of any actual or threatened breach of the confidentiality obligations in this Agreement in addition to any other legal remedies which may be available.
12 Data Protection
12.1 PULSAR shall process the Personal Data of the Customer in accordance with the Customer’s instructions in order to provide the Software and Services, for its own administrative, market research and customer service purposes or for any other purpose required by law.
12.2 Unless the Customer informs PULSAR otherwise, PULSAR may use the Personal Data of the Customer for its marketing purposes, including supplying the Customer with information about other products or services available from PULSAR.
To the extent applicable due to the processing pursuant to this Agreement of personal data subject to the GDPR, the following clauses under this Section apply instead of the preceding clauses 12.1 and 12.2.
12.3. The parties confirm that depending on the circumstances in respect of Personal Data:
12.3.1. in some instances PULSAR will be the Controller and the Customer will be the Processor;
12.3.2. in some instances the Customer will be the Controller and PULSAR will be the Processor;
12.3.3. and in some circumstances both parties will be Controllers.
12.4. Each party shall comply with its obligations as a controller under the Data Protection Laws.
12.5. Each party, when processing personal data in respect of which the other party or its customer is Controller (Controller Personal Data), agrees that:
12.5.1. the other party (or its customer) is the Controller; and
12.5.2. it is the Processor.
For the remainder of this clause 12 the terms Controller and Processor shall be construed in that context including in situations where the activity between the parties is at processor/sub-processor level where the processor shall be referred to as the Controller in these terms and the sub-processor will be referred to as the Processor.
12.6. If, as a consequence of PULSAR’s provision of the services, a party considers that the relationship between them no longer corresponds to the intention of the parties, then it shall notify the other party and the parties shall discuss and agree in good faith such steps that may be required to confirm the parties’ intention.
12.7. The Processor shall comply with the obligations imposed on it by the Data Protection Laws with regard to Controller Personal Data processed by it in connection with the performance of the Services when acting as Processor.
12.8. The Processor shall ensure that where the services require the processing of Controller Personal Data, the description of the services includes the subject matter and duration of the processing; the nature and purpose of the processing; a description of the type(s) of Controller Personal Data processed; and a description of the categories of the data subjects comprised within the Controller Personal Data referred to in this clause. The information referred to in this clause will be reviewed annually to ensure the information is up-to-date and relevant.
12.9. The Processor shall:
12.9.1. only process Controller Personal Data in accordance with the documented instructions of the Controller including transfers of Controller personal data outside the European Economic Area, unless required to do so by EU Law to which the Processor is subject, in which event the Processor shall inform the Controller of such legal requirement unless prohibited from doing so by EU Law on important grounds of public interest;
12.9.2. immediately inform the Controller if, in the Processor’s opinion, an instruction given by the Controller to the Processor under clause 12.8 infringes Data Protection Laws;
12.9.3. ensure that any persons authorised by it to process the Controller Personal Data are subject to an obligation of confidentiality;
12.9.4. implement appropriate technical and organisational measures to ensure that the Controller Personal Data is subject to a level of security appropriate to the risks arising from its processing by the Processor or its sub-processors; and
12.9.5. notify the Controller without undue delay and no later than 24 hours after becoming aware of a personal data breach (as defined in the GDPR).
12.10. Taking into account the nature of the processing the Processor shall assist the Controller by appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of the Controller’s obligation to respond to requests for exercising a data subject’s rights under the GDPR.
12.11. Taking into account the nature of the processing and the information available to the Processor, the Processor shall assist the Controller with regard to the Controller’s compliance with its obligations set out in Articles 32 – 36 of the GDPR.
12.12. Upon termination of the services that required the processing of Controller Personal Data (in whole or in part) the Processor shall, at the election of the Controller, deliver up or destroy such Controller Personal Data which is in the possession of, or under the control of, the Processor unless EU law requires the Processor to store such Controller Personal Data.
12.13. The Processor shall, at the written request of the Controller, provide the Controller with all information necessary to demonstrate a party’s compliance with its obligations under this clause and shall allow for and contribute to audits and inspections conducted by or on behalf of the Controller.
12.14. Where required to do so by the GDPR, the Processor shall maintain written records of its processing of the Controller Personal Data in accordance with the requirements set out in Data Protection Laws and shall make such records available to a supervisory authority on request.
12.15. The Controller shall ensure that:
12.15.1. the supply to the Processor of Controller Personal Data by or on behalf of the Controller for the purposes of processing undertaken by the Processor and its permitted sub-processors where such processing is authorised by the Controller shall comply with the Data Protection Laws; and
12.15.2. the instructions given by the Controller to the Processor by operation of this clause 12.15 shall comply with the Data Protection Laws.
12.16. Where the Processor is obliged to provide assistance to the Controller, or to third parties at the request of the Controller (including submission to an audit or inspection and/or the provision of information), such assistance shall be provided at the sole cost and expense of the Controller, save where such assistance directly arises from the Processor’s breach of its obligations under this Agreement, in which event the costs of such assistance shall be borne by the Processor.
12.17. Notwithstanding any other provision of this Agreement, the Processor shall be entitled to sub-contract any part of the services requiring the processing of Controller Personal Data, provided that the Processor shall notify the Controller in writing of its intention to engage such sub-contractor. Such notice shall give details of the identity of such sub-contractor and the services to be supplied by it. The Controller shall be deemed to have approved the engagement of the sub-contractor if it has not served a notice in writing on the Processor objecting (acting reasonably) to such appointment within 7 days of the date that the notice is deemed to be received by the Controller.
12.18. The Processor shall ensure that any sub-contracts it enters into shall be on the same terms to those set out in this Agreement and in particular it shall ensure the sub-processor provides sufficient guarantees to implement appropriate technical and organisational measures in order that any processing of Controller personal data is performed in accordance with the GDPR.
12.19. Where, in accordance with the provisions Article 82(3) of the GDPR, both parties are responsible for the act, or omission to act, resulting in the payment of losses by a party or both parties, then a party shall only be liable for that part of such losses which is in proportion to its respective responsibility.
13 Variation
PULSAR may amend the terms of this Agreement at any time. If PULSAR amends the terms of this Agreement, then it shall notify the Customer of such amendments in writing in a copy of the revised terms within thirty (30) days of such amendments coming into effect.
14 General
14.1 Notices: All notices and communications must be in writing and should be either delivered by hand, sent by pre-paid courier or registered post addressed to the other party at the address set out in the Statements of Work. Unless there is evidence that it was received earlier, such notice or document shall be deemed to have been served:
14.1.1 if delivered by courier, when left at the address referred to above; or
14.1.2 if sent by post to an address within the country of postage, 2 Business Days after posting it; or
14.1.3 if sent by post to an address outside the country of postage, 5 Business Days after posting it.
14.2 Sub-contractors: PULSAR may subcontract any of its obligations under this Agreement.
14.3 Entire Agreement: This Agreement constitutes the entire understanding between the parties and supersedes any prior agreement whether oral or written between them.
14.4 Waiver: No waiver of any provision of this Agreement or any rights or obligations of either party will be effective unless in writing and signed by a duly authorised representative of both parties. Any such waiver will be effective only in the specific instance and for the specific purpose specified in writing.
14.5 Force Majeure: Neither party shall be liable to the other party under this Agreement if it is prevented from or delayed in performing its obligations under this Agreement, or from carrying on its business, by an act of God, fire, earthquake, strike, civil commotion, act of government or any other event which is beyond the reasonable control of that party (including, but not limited to, failure of a utility service or telecommunications network), provided that the party affected by such an event notifies the other party as soon as reasonable practicable after such an event has occurred.
14.6 Assignment: Neither party shall assign this Agreement without the prior written consent of the other party, such consent not to be unreasonably withheld or delayed. Any attempted assignment in contravention of this clause shall be null and void. Notwithstanding the preceding sentence, nothing in this Agreement shall prevent or restrict PULSAR from assigning, sub-licensing, transferring or otherwise disposing of all or any of its rights or obligations this Agreement to any legal entity which succeeds to all or part of the business or assets.
14.7 Severance: To the extent that any provision of this Agreement is found by any court or competent authority to be invalid, unlawful or unenforceable in any jurisdiction, that provision shall be deemed not to be a part of this Agreement, and such finding shall not affect the enforceability of the remainder of this Agreement nor shall it affect the validity, lawfulness or enforceability of that provision in any other jurisdiction.
14.8 No partnership: Nothing in this Agreement is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties nor constitute any party the agent of another party for any purpose.
No party shall have authority to act as agent for, or to bind, the other party in any way.
14.9 Third parties: A person who is not a party to this Agreement shall not have any rights under or in connection with it.
14.10 Governing Law: This Agreement, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by and construed in accordance with the laws of the State of New York.
Face US Inc. (d/b/a PULSAR)
TERMS AND CONDITIONS FOR THE SUPPLY OF RESEARCH SERVICES
1. DEFINITIONS
In these Terms & Conditions the following apply:
“Business Day” means a day (other than a Saturday, Sunday or a public holiday) from 9:00 a.m. to 5:00 p.m. (ET or EDT).
“Commission Date” shall have the meaning set forth in clause 2.2 below.
“Conditions” means these terms and conditions as may be amended from time to time in accordance with clause 14.5.
“Contract” means the Statements of Work (SOW) (referred to herein as the “Order”) and these Conditions entered into between the Customer and the Supplier for the supply of Services.
“Contract Length” means the period of time from and including the Commission Date to and including the Discharge Date.
“Controller” shall have the meaning given in the relevant provisions of the Data Protection Laws.
“Customer” means the person or firm who purchases the Services from the Supplier as set out in the Order.
“Data Protection Laws” means the GDPR, the Law Enforcement Directive (Directive (EU) 2016/680) and any applicable laws as amended from time to time, the United Kingdom Data Protection Act 2018 (subject to coming into force) and all applicable law about the processing of personal data and privacy.
“Debrief” means the delivery and communication of a final report with results and findings of the Services, in writing or otherwise, to the Customer on the Discharge Date.
“Discharge Date” means the date of discharge/completion of the Contract.
“GDPR” means the General Data Protection Regulation (EU) 2016/679.
“Intellectual Property Rights” means all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, media rights, Internet rights, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, privacy and publicity rights, rights in confidential information (including know-how and trade secrets) and/or any other intellectual property rights, in each case whether registered or unregistered, and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
“Order” means the Customer’s order for the supply of Services as set out in the Statements of Work.
“Personal Data” shall have the meaning given in the Data Protection Laws.
“Processor” shall have the meaning given in the relevant provisions of the Data Protection Laws.
“Services” means the services supplied by the Supplier to the Customer as set out in the Statements of Work.
“Statements of Work” or “SOW” means the specifications for the Services agreed to in writing between the Supplier and the Customer and incorporating the SOW.
“Supplier” means Face US Inc. (d/b/a PULSAR), a New York corporation located at Floor 9, 81 Prospect Street, Brooklyn, NY 11201 (email address: [email protected]) and having its principal place of business located at 4551 Glencoe Avenue, Suite 350, Marina Del Ray, Los Angeles, CA 90292
2. BASIS OF CONTRACT
2.1 The submission of a completed Order by the Customer to the Supplier constitutes an offer by the Customer to purchase Services from the Supplier in accordance with these Conditions.
2.2 The Order shall only be deemed to be accepted when the Supplier issues written acceptance of the Order at which point and on which date the Contract shall come into existence (the “Commission Date”).
2.3 The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Supplier which is not set out in the Contract.
2.4 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.5 If there is any conflict between the terms set out in these Conditions and the terms set out in the Statements of Work, then the terms set out in the Statements of Work shall prevail.
3. QUOTATIONS
3.1 Any quotation given by the Supplier shall not constitute an offer, and is only valid for a period of 3 calendar months from its date of issue (the “Quotation Period”).
3.2 Any budgets or sums of money included within the quotation are estimates only and shall not be confirmed until the Commission Date.
3.3 If performance of the Contract is delayed or frustrated for any reason during the Quotation Period then the Supplier may vary the quotation in accordance with clause 14.5 of these Conditions.
3.4 A quotation is only valid so long as the specifications and information presented by the Customer at the time the quotation is given remain valid. If the Customer at any time during the Quotation Period should, for any reason, vary the information given at the time the quotation was given, then the Supplier shall have the right to amend the quotation.
4. SUPPLY OF SERVICES
4.1 The Supplier shall provide the Services to the Customer in accordance with the Statements of Work in all material respects.
4.2 The Supplier shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirements, or which do not materially affect the nature or quality of the Services, and the Supplier shall notify the Customer in any such event.
5. CUSTOMER’S OBLIGATIONS & WARRANTIES
5.1 The Customer shall:
5.1.1 ensure that the terms of the Order are complete and accurate;
5.1.2 co-operate with the Supplier in all matters relating to the Services;
5.1.3 provide the Supplier with such information and materials as the Supplier may reasonably require to supply the Services, and ensure that such information is accurate in all material respects; and
5.1.4 obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start.
5.2 If the Supplier’s performance of any of its obligations in respect of the Services is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (the “Customer Default”), then:
5.2.1 the Supplier shall, without limiting its other rights or remedies, have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations to the extent the Customer Default prevents or delays the Supplier’s performance of any of its obligations;
5.2.2 the Supplier shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Supplier’s failure or delay to perform any of its obligations as set out in this clause 5.2; and
5.2.3 the Customer shall reimburse the Supplier on written demand for any costs or losses sustained or incurred by the Supplier arising directly or indirectly from the Customer Default.
5.3 The Customer warrants, represents and undertakes that it shall not require the Supplier to deal with any pornographic, obscene, indecent or libellous material or material which infringes the rights of any third party or which would expose the Supplier to civil or criminal liability.
5.4 The Customer warrants and confirms that it is entitled to use the copyright, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill and/or any other Intellectual Property Rights subsisting in any materials provided to the Supplier, that it is entitled to permit the Supplier to use them in connection with the Services and has obtained and maintained all necessary registrations, licences, permissions and/or consents which are or may be required for the Services before the Commission Date.
5.5 The Customer shall indemnify the Supplier against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties, court costs, attorney fees and other professional costs and expenses) suffered or incurred by the Supplier in connection with any claim made against the Supplier for actual or alleged infringement of a third party’s Intellectual Property Rights arising out of or in connection with the provision of the Services by the Supplier.
5.3 The Customer agrees that PULSAR may include the Customer’s name and/or logo on PULSAR’s websites, including, but not limited to, www.pulsarplatform.com, save always that the Customer may opt-out of such inclusion by sending a written request to PULSAR.
5.4 The Customer agrees not to publish any data, results or debrief findings derived from the services in the public domain without the prior written consent of PULSAR
6. CHARGES AND PAYMENT
6.1 The fee for the Services (the “Fee”) shall be the price set out in the Order.
6.2 The Fee and all expenses of the Supplier shall be invoiced to the Customer in the following manner:
6.2.1 100% of the Fee invoiced upon the Commission Date; and
6.2.2 all expenses incurred by the Supplier (up to and including the Discharge Date) shall be invoiced upon the Discharge Date.
6.3 The Supplier shall be entitled to charge the Customer for any expenses reasonably incurred by those persons whom the Supplier engages in connection with the Services including, but not limited to, travelling expenses, hotel costs, subsistence and any associated expenses, and for the cost of services provided by third parties and required by the Supplier for the performance of the Services, and for the cost of any materials.
6.4 Wherever possible the Supplier shall use all reasonable endeavours to ensure that any flights taken by those persons whom the Supplier engages in connection with the Services:
6.4.1 of less than 5 hours duration are taken “economy class”;
6.4.2 of more than 5 hours but less than 7 hours duration are taken “premium economy class”; and
6.4.3 of 7 hours duration or longer are taken “business class”.
The above named classes are not exact and are intended to serve as guidance only.
6.5 The Customer shall pay all invoices for the Fee and expenses submitted by the Supplier:
6.5.1 within 30 days of the date of the invoice (the “Due Date”); and
6.5.2 in full and cleared funds to a bank account nominated in writing by the Supplier and for the avoidance of doubt, any bank charges incurred in payment of invoices must not be deducted from the amount in the invoice.
6.5.3 Time for payment shall be of the essence of the Contract.
6.6. All amounts payable by the Customer under the Contract are:
6.6.1 payable in U.S. dollars unless otherwise specified in the SOW; and
6.6.2 exclusive of amounts in respect of value added tax chargeable from time to time (“VAT”). Where any taxable supply for VAT purposes is made under the Contract by the Supplier to the Customer, the Customer shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.
6.7 Without limiting any other right or remedy of the Supplier, if the Customer fails to make any payment due to the Supplier under the Contract within 14 days of the Due Date, the Supplier shall have the right to charge interest on the overdue amount at the rate of 1.5% per month, accruing on a daily basis from the Due Date until the date of actual payment of the overdue amount, whether before or after judgment, and compounding quarterly.
6.8 The Customer shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law and the Customer shall not be entitled to assert any credit, set-off or counterclaim against the Supplier in order to justify withholding payment of any such amount in whole or in part. The Supplier may, without limiting its other rights or remedies, set off any amount owing to it by the Customer against any amount payable by the Supplier to the Customer.
7. FOREIGN CURRENCY EXPENDITURE
7.1 In the event that payment of the Fee and/or any expenses is made in a currency other than U.S. dollars, then any costs incurred by Supplier in connection with the provision of the Services shall be calculated on the basis of the prevailing exchange rates for converting any currencies as applicable as set out in the currency exchange website www.xe.com on the Commission Date.
7.2 The Supplier reserves the right to recover any additional costs incurred as a result of a change of more than 5% in the exchange rate used to calculate any foreign currency amounts determined in accordance with clause 7.1 above between the Commission Date and the Discharge Date.
8. INTELLECTUAL PROPERTY RIGHTS
8.1 All Intellectual Property Rights in and to the Debrief or any other deliverable arising from the Services are owned by the Supplier or its licensors and shall remain vested in the Supplier or its licensors. Except where expressly provided in the Contract, the Customer shall not acquire any proprietary right, title or interest in and to any Intellectual Property Rights in the Debrief or any other deliverable arising from the Services.
8.2 The Supplier hereby grants to the Customer a royalty free, perpetual, non-transferable and non-exclusive license to use the Debrief or any other deliverable arising from the Services as required for the Customer’s internal use only which, for the avoidance of doubt, shall not include the right, unless expressly granted by the Supplier in writing, to republish, sell, sub-license or share with any third parties any such content and the Customer shall indemnify and hold harmless the Supplier from any and all losses arising as a result of a breach of this clause 8.2.
8.3 The Customer acknowledges that, in respect of any third party Intellectual Property Rights in the Services, the Customer’s use of any such Intellectual Property Rights is conditional on the Supplier obtaining a written license from the relevant licensor on such terms as will entitle the Supplier to license such rights to the Customer.
9. CONFIDENTIALITY
A party (the “Receiving Party”) shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Receiving Party by the other party (the “Disclosing Party”), its employees, agents or sub-contractors, and any other confidential information concerning the Disclosing Party’s business or its products or its services which the Receiving Party may obtain. The Receiving Party shall restrict disclosure of such confidential information to requests from any legal or regulatory authority and its employees, agents or sub-contractors on a ‘need to know’ basis for the purpose of discharging the Receiving Party’s obligations under the Contract, and shall ensure that such employees, agents or sub-contractors are subject to obligations of confidentiality corresponding to those which bind the Receiving Party. As used herein, the terms “party” and “other party” may refer to either the Customer or the Supplier, depending upon who is disclosing confidential information.
10. LIMITATION OF LIABILITY
10.1 To the maximum extent permitted by law, Supplier shall under no circumstances whatever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract.
10.1.1. To the maximum extent permitted by law, Supplier’s total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the Fee as paid at the time that the loss is incurred.
10.2 With respect to the Debrief and any deliverables, all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
11. TERM AND TERMINATION
11.1 The term of the Contract shall begin on the Commission Date and shall continue until the Discharge Date unless or until terminated earlier in accordance with the Contract.
11.2 Without limiting its other rights or remedies, each party may terminate the Contract with immediate effect by giving written notice to the other party if:
11.2.1 the other party commits a material breach of its obligations under the Contract and (if such breach is remediable) fails to remedy that breach within 10 Business Days after receipt of notice in writing of the breach; or
11.2.2 with respect to the other party an order is made or an effective resolution is passed for its winding up, a petition for bankruptcy (voluntary or involuntary) is filed, it ceases or threatens to cease operations or to carry on business, or if a liquidator, receiver or other officer is appointed or a distress or execution is levied against any part of its assets.
11.3 Without limiting its other rights or remedies, the Supplier may terminate the Contract:
11.3.1 for any reason, by giving the Customer three (3) months’ written notice; or
11.3.2 if the Customer fails to pay any amount due under the Contract on the Due Date for payment, with immediate effect by giving written notice to the Customer.
11.4 Without limiting its other rights or remedies, the Customer may terminate the Contract for any reason, by giving the Supplier 3 months’ written notice except that any termination prior to the Discharge Date shall relieve the Supplier of its obligation to provide the Debrief and any other deliverables, the Supplier shall be under no obligation to refund any part of the Fee and the Customer shall remain liable to pay Supplier for any and all expenses incurred or paid by Supplier as of the date that Supplier receives the notice of termination.
12. CONSEQUENCES OF TERMINATION
12.1 On termination of the Contract for any reason (including written notice to terminate from the Customer), the Customer shall pay the following (plus any direct field work expenses incurred up to and including the date of receipt of the written notice and all other non-refundable expenses):
12.1.1 10% of the Fee if the notice is received between the Commission Date and 5 calendar days after the Commission Date;
12.1.2 25% of the Fee if the notice is received between 6-10 calendar days after the Commission Date;
12.1.3 50% of the Fee if the notice is received between 11-15 calendar days after the Commission Date;
12.1.4 75% of the Fee if the notice is received between 16-25 calendar days after the Commission Date; and
12.1.5 100% of the Fee if the notice is received later than 25 calendar days after the Commission Date.
12.2 On termination of the Contract for any reason:
12.2.1 subject to clause 12.1, the Customer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has yet been submitted, the Supplier shall submit an invoice, which shall be payable by the Customer immediately on receipt;
12.2.2 the accrued rights and remedies of the parties as at termination shall not be affected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry; and
12.2.3 any clauses which expressly or by implication have effect after termination shall continue in full force and effect.
13. NOTICE
13.1 Any notice or other communication required to be given to a party under or in connection with the Contract shall be in writing and shall be delivered to the other party personally or sent by first-class mail/post, recorded delivery or by commercial courier, at its registered office (if a company) or (in any other case) its principal place of business, or by email, to the address or email address set out in the Statements of Work (if notice is given to Customer) or in these Conditions (if notice is given to the Supplier).
13.2 Any notice or other communication shall be deemed to have been duly received if delivered personally, when left at such addressor, if sent by first-class post or recorded delivery, at 9.00 a.m. on the second Business Day after posting, or if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed, or if sent by fax or email, on the next Business Day after transmission.
14. GENERAL
14.1 Force Majeure:
14.1.1 For the purposes of the Contract, “Force Majeure Event” means an event beyond the reasonable control of the Supplier including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of the party or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors.
14.1.2 The Supplier shall not be liable to the Customer as a result of any delay or failure to perform its obligations under the Contract as a result of a Force Majeure Event.
14.1.3 If the Force Majeure Event prevents the Supplier from providing any of the Services for more than 4 weeks, the Supplier shall, without limiting its other rights or remedies, have the right to terminate the Contract immediately by giving written notice to the Customer.
14.2 Severance:
14.2.1 If a court, arbitrator or any other competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.
14.2.2 If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
14.3 No Partnership: Nothing in the Contract is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute or designate any party the agent of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.
14.4 Third Parties: A person who is not a party to the Contract shall not have any rights under or in connection with it.
14.5 Variation: Except as set forth herein, any variation, modification or amendment to the SOW, these Conditions and/or to the Contract shall only be binding when agreed to in writing and signed by the Supplier.
14.6 Governing Law: The Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with the laws of the State of New York.
15. Data Protection
15.1. To the extent applicable due to the processing pursuant to this Agreement of personal data subject to the GDPR, the parties confirm that depending on the circumstances in respect of Personal Data:
15.1.1. in some instances the Supplier will be the Controller and the Customer will be the Processor;
15.1.2. in some instances the Customer will be the Controller and the Supplier will be the Processor; and
15.1.3. in some circumstances both parties will be Controllers.
15.2. Each party shall comply with its obligations as a Controller under the Data Protection Laws.
15.3. Each party, when processing personal data in respect of which the other party or its customer is Controller (Controller Personal Data), agrees that:
15.3.1. the other party (or its customer) is the Controller; and
15.3.2. it is the Processor.
For the remainder of this clause 15 the terms Controller and Processor shall be construed in that context including in situations where the activity between the parties is at processor/sub-processor level where the processor shall be referred to as the Controller in these terms and the sub-processor will be referred to as the Processor.
15.4. If, as a consequence of the Supplier’s provision of the services, a party considers that the relationship between them no longer corresponds to the intention of the parties, then it shall notify the other party and the parties shall discuss and agree in good faith such steps that may be required to confirm the parties’ intention.
15.5. The Processor shall comply with the obligations imposed on it by the Data Protection Laws with regard to Controller Personal Data processed by it in connection with the performance of the Services when acting as Processor.
15.6. The Processor shall ensure that where the services require the processing of Controller Personal Data, the description of the services includes the subject matter and duration of the processing; the nature and purpose of the processing; a description of the type(s) of Controller Personal Data processed; and a description of the categories of the data subjects comprised within the Controller Personal Data referred to in this clause. The information referred to in this clause will be reviewed annually to ensure the information is up-to-date and relevant.
15.7. The Processor shall:
15.7.1. only process Controller Personal Data in accordance with the documented instructions of the Controller including transfers of Controller Personal Data outside the European Economic Area, unless required to do so by EU Law to which the Processor is subject, in which event the Processor shall inform the Controller of such legal requirement unless prohibited from doing so by EU Law on important grounds of public interest;
15.7.2. immediately inform the Controller if, in the Processor’s opinion, an instruction given by the Controller to the Processor under clause 15.6 infringes Data Protection Laws;
15.7.3. ensure that any persons authorised by it to process the Controller Personal Data are subject to an obligation of confidentiality;
15.7.4. implement appropriate technical and organisational measures to ensure that the Controller Personal Data is subject to a level of security appropriate to the risks arising from its processing by the Processor or its sub-processors; and
15.7.5. notify the Controller without undue delay and no later than 24 hours after becoming aware of a personal data breach (as defined in the GDPR).
15.8. Taking into account the nature of the processing the Processor shall assist the Controller by appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of the Controller’s obligation to respond to requests for exercising a data subject’s rights under the GDPR.
15.9. Taking into account the nature of the processing and the information available to the Processor, the Processor shall assist the Controller with regard to the Controller’s compliance with its obligations set out in Articles 32 – 36 of the GDPR.
15.10. Upon termination of the services that required the processing of Controller Personal Data (in whole or in part) the Processor shall, at the election of the Controller, deliver up or destroy such Controller Personal Data which is in the possession of, or under the control of, the Processor unless EU law requires the Processor to store such Controller Personal Data.
15.11. The Processor shall, at the written request of the Controller, provide the Controller with all information necessary to demonstrate a party’s compliance with its obligations under this clause and shall allow for and contribute to audits and inspections conducted by or on behalf of the Controller.
15.12. Where required to do so by the GDPR, the Processor shall maintain written records of its processing of the Controller Personal Data in accordance with the requirements set out in Data Protection Laws and shall make such records available to a supervisory authority on request.
15.13. The Controller shall ensure that:
15.13.1. the supply to the Processor of Controller Personal Data by or on behalf of the Controller for the purposes of processing undertaken by the Processor and its permitted sub-processors where such processing is authorised by the Controller shall comply with the Data Protection Laws; and
15.13.2. the instructions given by the Controller to the Processor by operation of this clause 15.13 shall comply with the Data Protection Laws.
15.14. Where the Processor is obliged to provide assistance to the Controller, or to third parties at the request of the Controller (including submission to an audit or inspection and/or the provision of information), such assistance shall be provided at the sole cost and expense of the Controller, save where such assistance directly arises from the Processor’s breach of its obligations under this Contract, in which event the costs of such assistance shall be borne by the Processor.
15.15. Notwithstanding any other provision of this Contract, the Processor shall be entitled to sub-contract any part of the services requiring the processing of Controller Personal Data, provided that the Processor shall notify the Controller in writing of its intention to engage such sub-contractor. Such notice shall give details of the identity of such sub-contractor and the services to be supplied by it. The Controller shall be deemed to have approved the engagement of the sub-contractor if it has not served a notice in writing on the Processor objecting (acting reasonably) to such appointment within 7 days of the date that the notice is deemed to be received by the Controller.
15.16. The Processor shall ensure that any sub-contracts it enters into shall be on the same terms to those set out in this Contract and in particular it shall ensure the sub-processor provides sufficient guarantees to implement appropriate technical and organisational measures in order that any processing of Controller personal data is performed in accordance with the GDPR.
15.17. Where, in accordance with the provisions Article 82(3) of the GDPR, both parties are responsible for the act, or omission to act, resulting in the payment of losses by a party or both parties, then a party shall only be liable for that part of such losses which is in proportion to its respective responsibility.
