You agree to accept and be bound by these terms and conditions, either by clicking a box indicating your acceptance, by registering for a free trial or by executing an Order Form that incorporates by reference these terms and conditions. Together, these terms and conditions and any Order Form constitutes the Agreement between Us and You. If you are agreeing to these terms and conditions on behalf of a company or other legal entity, you represent that you have the authority to bind such entity and to cause that entity's Affiliates if they utilise Our Services to adhere to these terms and conditions as if they were a party to these terms, in which case the terms “You” or “Your” shall refer to such entity and Affiliates. If You do not have such authority, You must not accept these terms and conditions and you must not use the Services. You must not access the Services if You are Our competitor, except with Our prior written consent. In addition, You must not access the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes, except with Our prior written consent.This Agreement is effective between You and Us as of the date of You accepting these terms and conditions.
In these terms and conditions, the following terms have the corresponding meaning unless the context requires otherwise.
"Affiliate" means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. "Control," for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
"AppExchange" means the online directory of applications that interoperate with the Services, located at http://www.salesforce.com/appexchange or at any successor website.
"Malicious Code" means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
"Non clrHorizon Applications" means online applications and offline software products that are provided by entities or individuals other than Us including those applications made available through the AppExchange and are clearly identified as such, and that interoperate with the Services.
"Order Form" means the documents for placing orders hereunder, as issued by Us, including addenda thereto, that are entered into between You and Us or any of Your Affiliates from time to time, including addenda and supplements thereto. By accepting an Order Form, an Affiliate agrees to be bound by the terms and conditions of this Agreement as if it were named as an original party hereto.
"Purchased Services" means Services that You or Your Affiliates purchase under an Order Form, as distinguished from those provided pursuant to a free trial.
“Quote” means any written quotation provided to the Customer by clrHorizon incorporating by reference these terms and conditions.
"Services" means the products and services that are ordered by You under a free trial or purchased pursuant to an Order Form and made available by Us. “Services” exclude the Salesforce.com platform and Non clrHorizon Applications.
"User Guides" means any user guides or white papers provided for the Services.
"Users" means individuals who are authorised by You to use the Services, for whom subscriptions to a Service have been ordered, and who have been supplied user identifications and passwords by You (or by Us at Your request). Users may include but are not limited to Your employees, consultants, contractors and agents, and third parties with which You transact business.
"We," "Us" or "Our" means the clrHorizon company described in Section 13 (Who You Are Contracting With, Notices, Governing Law and Jurisdiction).
"You" or "Your" means, as the case may be, you personally if you are a sole trader, you or your partners if you are a partner of a partnership or the company or other legal entity for which you are accepting this Agreement, and Affiliates of that company or entity.
"Your Data" means all electronic data or information submitted by You to the Services.
2. FREE TRIAL
If You register for a free trial of our Services, this Agreement governs that free trial. When you register We may make one or more Services available to You on a trial basis free of charge until the earlier of (a) the end of the free trial period for which you registered or are registering to use the applicable Service; or (b) the start date of any Purchased Services ordered by You.
ANY DATA YOU ENTER INTO THE SERVICES, AND ANY CUSTOMISATIONS MADE TO THE SERVICES BY OR FOR YOU, DURING YOUR FREE TRIAL WILL BE PERMANENTLY LOST UNLESS YOU PURCHASE A SUBSCRIPTION TO THE SAME SERVICES AS THOSE COVERED BY THE TRIAL, PURCHASE UPGRADED SERVICES, OR EXPORT SUCH DATA, BEFORE THE END OF THE TRIAL PERIOD. YOU CANNOT TRANSFER DATA ENTERED OR CUSTOMISATIONS MADE DURING THE FREE TRIAL; THEREFORE, YOU MUST EXPORT YOUR DATA BEFORE THE END OF THE TRIAL PERIOD OR YOUR DATA WILL BE PERMANENTLY LOST.
NOTWITHSTANDING SECTION 9 (WARRANTIES AND DISCLAIMERS) AND TO THE EXTENT PERMITTED BY LAW, DURING THE FREE TRIAL THE SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY.
3. PURCHASED SERVICES
3.1. Provision of Purchased Services
We must make the Purchased Services available to You pursuant to the terms and conditions of this Agreement and the relevant Order Forms during a subscription term. You agree that Your purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Us regarding future functionality or features.
3.2. User Subscriptions
Unless otherwise specified in the applicable Order Form, (i) Services are purchased as User subscriptions and may be accessed by no more than the specified number of Users, (ii) additional User subscriptions may be added during the applicable subscription term at the same pricing as that for the pre-existing subscriptions, prorated for the remainder of the subscription term in effect at the time the additional User subscriptions are added, and (iii) the added User subscriptions will terminate on the same date as the pre-existing subscriptions. User subscriptions are for designated Users only and cannot be shared or used by more than one User but may be reassigned to new Users replacing former Users who no longer require ongoing use of the Services.
4. USE OF THE SERVICES
4.1. Support Arrangements
The Customer acknowledges that we are under no obligation to provide any support in respect of the Service, unless stated otherwise in the relevant Quote. If we provide any such support, it will be provided as described in the Quote. You acknowledge that We will not be liable for any support issues, unless we enter into a separate written support agreement with You in this regard.In such circumstances, Our liability for any support will be as agreed between the parties in that separate support agreement.
4.2. Our Protection of Your Data
The handling of Your Data is subject to the terms and conditions of the Annexure (Data Processing Provisions). Without limiting that Annexure, we take commercially reasonable efforts to maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Data. We will not (a) modify Your Data, (b) disclose Your Data except as permitted under this Agreement or if compelled by law in accordance with Section 8.3 (Compelled Disclosure) or as expressly permitted in writing by You, or (c) access Your Data except to provide the Services and prevent or address service or technical problems, or at Your request in connection with customer support matters.
4.3. Your Responsibilities
You are (i) responsible for Users’ compliance with this Agreement, (ii) responsible for the accuracy, quality and legality of Your Data and of the means by which You acquired Your Data, (iii) to use commercially reasonable efforts to prevent unauthorised access to or use of the Services, and notify Us promptly of any such unauthorised access or use, and (iv) to use the Services only in accordance with recommended use and applicable laws and government regulations. You must not (a) make the Services available to anyone other than Users, (b) sell, resell, rent or lease the Services, (c) use the Services to store or transmit infringing, libellous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use the Services to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein, or (f) attempt to gain unauthorised access to the Services or related systems or networks. Without limiting our other rights under this Agreement or at law, we may, at our discretion, suspend, restrict or downgrade access to or the functionality of the Services if we (acting reasonably) determine or suspect you to be engaging in prohibited use of the Services.
5. SALESFORCE.COM PLATFORM AND NON CLRHORIZON PROVIDERS
5.1. Saleforce.com platform
Our Services are only available as an application accessible through and hosted on the Salesforce.com platform. Our services are subject to the limitations, delays, and other problems inherent in the use of the Salesforce.com platform and the vagaries of Internet and electronic communications and protocols. We are not responsible for any delays, delivery failures, or other damage or loss resulting from such problems.
5.2 Acquisition of Non clrHorizon Products and Services
We or third parties may from time to time make available to You (e.g., through the AppExchange) third-party products or services, including but not limited to Non clrHorizon Applications and implementation, customisation and other consulting services. Any acquisition by You of such non clrHorizon products or services, and any exchange of data between You and any non clrHorizon provider, is solely between You and the applicable non clrHorizon provider. We do not warrant or support non clrHorizon products or services, whether or not they are designated by Us as “certified” or otherwise, except as specified in an Order Form.
5.3. Non clrHorizon Applications and Your Data
If You install or enable Non clrHorizon applications for use with Services, You acknowledge that We may allow providers of those Non clrHorizon Applications to access Your Data as required for the interoperation of such Non clrHorizon Applications with the Services. We are not responsible for any disclosure, modification or deletion of Your Data resulting from any such access by Non clrHorizon Application providers.
5.4. Integration with Non clrHorizon Services
The Services may contain features designed to interoperate with Non clrHorizon Applications (e.g., Salesforce.com, Google, Microsoft). To use such features, You may be required to obtain access to such Non clrHorizon Applications from their providers. If the provider of any such Non clrHorizon Application ceases to make the Non clrHorizon Application available for interoperation with the corresponding Service features on reasonable terms, We may cease providing such Service features without refund, credit, or other compensation to You.
6. FEES AND PAYMENT FOR PURCHASED SERVICES
You shall pay all fees specified in all Order Forms at the time and in the manner specified in the relevant Order Form. Except as otherwise specified herein or in an Order Form, (i) fees are based on services purchased and not actual usage, (ii) payment obligations are non-cancellable and fees paid are non-refundable, and (iii) the number of User subscriptions purchased cannot be decreased during the relevant subscription term stated on the Order Form. User subscription fees are based on yearly periods that begin on the subscription start date and each anniversary thereof.
6.2. Invoicing and Payment
Payments shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order Form. We will invoice You in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, invoiced charges are due 30 days from the invoice date. You are responsible for providing complete and accurate billing and contact information to Us and notifying Us promptly of any changes to such information.
6.3. Overdue Charges
If any charges are not received from You by the due date, then at Our discretion, charges will accrue late interest at the rate of 1.5% of the outstanding balance per month.
6.4. Suspension of Service and Acceleration
If any amount owing by You under this or any other agreement for Our services is 30 or more days overdue, We may, without limiting Our other rights and remedies, accelerate Your unpaid fee obligations under such agreements so that all such obligations become immediately due and payable with an adjustment made to take into account the present value of money, such adjustment to be made by Us acting reasonably, or suspend Our services to You until such amounts are paid in full or both. We will give You at least 7 days’ prior notice that Your account is overdue, in accordance with Section 13.2 (Manner of Giving Notice), before suspending our Services.
6.5. Payment Disputes
We will not suspend our Services to You under Section 6.4 (Suspension of Service and Acceleration) if You are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute.
7. PROPRIETARY RIGHTS
7.1. Reservation of Rights in Services
Subject to the limited rights expressly granted hereunder, We reserve all rights, title and interest in and to the Services, including all related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth herein.
You must not (i) permit any third party to access the Services except as permitted herein or in an Order Form, (ii) create derivate works based on the Services except as authorised herein, (iii) copy, frame or mirror any part or content of the Services, other than copying or framing on Your own intranets or otherwise for Your own internal business purposes, (iv) reverse engineer the Services, or (v) access the Services in order to (a) build a competitive product or service, or (b) copy any features, functions or graphics of the Services.
7.3. Your Applications and Code
If You, a third party acting on Your behalf, or a User creates applications or program code using the Services, You authorise Us to host, copy, transmit, display and adapt such applications and program code, solely as necessary for Us to provide the Services in accordance with this Agreement.
7.4. Your Data
Subject to the limited rights granted by You hereunder, We acquire no right, title or interest from You or Your licensors under this Agreement in or to Your Data, including any intellectual property rights therein.
You grant Us a royalty-free, worldwide, irrevocable, transferable, perpetual license to use and incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by You, including Users, relating to the operation of, or improvements to, the Services.
8.1. Definition of Confidential Information
As used herein, "Confidential Information" means all confidential information disclosed by a party ("Disclosing Party") to the other party ("Receiving Party"), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Your Confidential Information shall include Your Data; Our Confidential Information shall include the Services; and Confidential Information of each party shall include the terms and conditions of this Agreement and all Order Forms, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information (other than Your Data) shall not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
8.2. Protection of Confidential Information
The Receiving Party must use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) (i) not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorised by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. Neither party shall disclose the terms of this Agreement or any Order Form to any third party other than its Affiliates and their legal counsel and accountants without the other party’s prior written consent.
8.3. Compelled Disclosure
The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.
9. WARRANTIES AND DISCLAIMERS
9.1. Our Warranties
We warrant that (i) We have validly entered into this Agreement and have the legal power to do so, (ii) the Services will perform materially as described, (iii) subject to Section 5.3 (Integration with the Salesforce.com and Non clrHorizon Services), the functionality of the Services will not be materially decreased during a subscription term, and (iv) We will not transmit Malicious Code to You, provided it is not a breach of this subpart (iv) if You or a User uploads a file containing Malicious Code into the Services and later downloads a file containing that Malicious Code. For consumers, who are covered by consumer protection laws or regulations in their country of purchase or, if different, their country of residence, the benefits conferred by Our Warranties are in addition to all rights and remedies conveyed by such consumer protection laws and regulations, including but not limited to Our additional Warranties.
9.2. Your Warranties
You warrant that You have validly entered into this Agreement and have the legal power to do so.
Except as expressly provided herein, neither party makes warranties of any kind, whether expressed, implied or otherwise, and each party specifically disclaims all implied warranties, including any warranties of merchantability or fitness for a particular purpose, to the maximum extent permitted by applicable law.
9.4. Non-GA Services
From time to time We may invite You to try, at no charge, Our products or services that are not generally available to Our customers ("Non-GA Services"). You may accept or decline any such trial in Your sole discretion. Any Non-GA Services will be clearly designated as beta, pilot, limited release, developer preview, non-production or by a description of similar import. Non-GA Services are provided for evaluation purposes and not for production use, are not supported, may contain bugs or errors, and may be subject to additional terms. Non-GA services are not considered “Services” hereunder and are provided “as-is” with no express or implied warranty to the extent permitted by law. We may discontinue Non-GA Services at any time in Our sole discretion and may never make them generally available.
9.5. Force Majeure
If either Party is prevented from complying with, or delayed from performing, its obligations under our Agreement due to any event beyond its reasonable control (such event being referred to as a “Force Majeure Event”) it will not be in breach of this Agreement or otherwise liable to the other Party by reason of any such delay in performance or non-performance. However, this Clause does not excuse either party from complying with its payment obligations by itself claiming the benefit of a Force Majeure Event.
9.6 AUSTRALIAN CONSUMER LAW
9.6.1 Application of this Section 9.6
This Section 9.6 applies in addition to Our Warranties given to You under Section 9.1, but only to the extent You are entitled to benefit from the provisions set out in this Section 9.6 under the Australian Consumer Law.
9.6.2. Mandatory Statement regarding guarantees
Our goods come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure.
9.6.3 Limitation for business to business transactions
To the extent permitted by law, We limit Our liability for failure to comply with one or more guarantees (other than, for goods, guarantees under the Australian Consumer Law as to title, undisturbed possession and undisclosed securities) to (a) one or more of the following in the case of goods: (i) the replacement of the goods or the supply of equivalent goods; (ii) the repair of the goods; (iii) the payment of the cost of replacing the goods or of acquiring equivalent goods; and (iv) the payment of the cost of having the goods repaired; or (b) in the case of Our liability to comply with one or more guarantees in the case of services, the supplying of the services again or the payment of the cost of having the services supplied again.
9.6.4 Our Warranties are in addition to the guarantees
The benefits to You given by Our Warranties in Section 9.1 are in addition to Your other rights under the Australian Consumer Law.
9.6.5 How You can make a Warranty Claim
A report of any alleged non-conformance of Our Warranties contained in Section 9.1 must be made in writing to clrHorizon Pty Ltd, particularising how we have not complied with Our Warranties, via Our business email address given in Section 13.
9.6.6 Who bears the costs of making a Warranty Claim
You will bear the expense of making a warranty claim under Section 9.1.
9.6.7. Risk of Loss of User-Generated Data
If We accept goods for repair, You acknowledge that any repair might result in loss of user-generated data.
10. MUTUAL INDEMNIFICATION
10.1. Indemnification by Us
We will defend You against any claim, demand, suit, or proceeding made or brought against You by a third party alleging that the use of the Services as permitted hereunder infringes or misappropriates the intellectual property rights of a third party (a "Claim Against You"), and will indemnify You for any damages, legal fees and costs finally awarded against You as a result of, and for amounts paid by You under a court-approved settlement of, a Claim Against You; provided that You (a) promptly give Us written notice of the Claim Against You; (b) give Us sole control of the defence and settlement of the Claim Against You (provided that We may not settle any Claim Against You unless the settlement unconditionally releases You of all liability); and (c) provide to Us all reasonable assistance, at Our expense. In the event of a Claim Against You, or if We reasonably believe the Services may infringe or misappropriate, We may in Our discretion and at no cost to You (i) modify the Services so that they no longer infringe or misappropriate, without breaching Our warranties under “Our Warranties” above, (ii) obtain a license for Your continued use of the Services in accordance with this Agreement, or (iii) terminate Your User subscriptions for such Services upon 30 days’ written notice and refund to You any prepaid fees covering the remainder of the term of such User subscriptions after the effective date of termination.
10.2. Indemnification by You
You must defend Us against any claim, demand, suit or proceeding made or brought against Us by a third party alleging that Your Data, or Your use of the Services in breach of this Agreement, infringes or misappropriates the intellectual property rights of a third party or violates applicable law (a "Claim Against Us"), and must indemnify Us for any damages, legal fees and costs finally awarded against Us as a result of, or for any amounts paid by Us under a court-approved settlement of, a Claim Against Us; provided that We (a) promptly give You written notice of the Claim Against Us; (b) give You sole control of the defence and settlement of the Claim Against Us (provided that You may not settle any Claim Against Us unless the settlement unconditionally releases Us of all liability); and (c) provide to You all reasonable assistance, at Your expense.
10.3. Exclusive Remedy
This Section 10 (Mutual Indemnification) states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for the subject matter of any type of claim described in this Section to the maximum extent allowed by law.
11. LIMITATION OF LIABILITY
11.1. Limitation of Liability
To the maximum extent permitted by applicable law, neither party’s liability with respect to any single incident arising out of or related to this agreement shall not exceed the total amount paid by You in the 12 months preceding the incident. The foregoing does not limit your payment obligation under section 6 (Fees and Payment for Purchased Services) or any remedies that you might have under the Australian Consumer Law.
11.2. Exclusion of Consequential and Related Damages
In no event does either party have any liability to the other party for any lost profits or revenues or for any indirect, special, incidental, consequential, exemplary or punitive damages however caused, whether in contract, tort or under any other theory of liability, and whether or not the party has been advised of, or foresaw, the possibility of such damages. The foregoing disclaimer does not apply to the extent prohibited by applicable law.
12. TERM AND TERMINATION
12.1. Term of Agreement
Your Agreement with Us commences on the date You accept these terms and conditions and continues until all User subscriptions granted in accordance with this Agreement have expired or been terminated. If You elect to use the Services for a free trial period and do not purchase a subscription before the end of that period, Your Agreement with Us will terminate at the end of the free trial period.
12.2. Term of Purchased User Subscriptions
User subscriptions purchased by You commence on the start date specified in the applicable Order Form and continue for the subscription term specified therein. Except as otherwise specified in the applicable Order Form, all User subscriptions will automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either party gives the other notice of non-renewal at least 30 days before the end of the relevant subscription term. The per-unit pricing during any such renewal term will be the same as that during the prior term unless We have given You written notice of a pricing increase at least forty-five days (45) before the start of the new term, in which case the pricing increase is be effective thereafter.
12.3. Termination for Cause
A party may terminate this Agreement for cause: (i) upon 30 days' written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. In no event does termination relieve You of the obligation to pay any fees payable to Us for the period prior to the effective date of termination.
12.4. Surviving Provisions
Section 6 (Fees and Payment for Purchased Services), 7 (Proprietary Rights), 8 (Confidentiality), 9.3 (Disclaimer), 10 (Mutual Indemnification), 11 (Limitation of Liability), 13 (Who You Are Contracting With, Notices, Governing Law and Jurisdiction), 14 (General Provisions) and the Annexure (Data processing obligations) survive any termination or expiration of this Agreement.
13. WHO YOU ARE CONTRACTING WITH, NOTICES, GOVERNING LAW AND JURISDICTION
You are contracting with and should direct notices to under these terms and conditions (Agreement) which govern your acquisition and use of the services to clrHorizon Pty Ltd ACN 159 364 360 (clrHorizon) at firstname.lastname@example.org
13.2. Manner of Giving Notice
Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder must be in writing and are deemed to have been given upon: (i) personal delivery, (ii) the second business day after mailing, or (iii) the first business day after sending by email. Billing-related notices to You will be addressed to the relevant billing contact designated by You. All other notices to You will be addressed to the relevant Services system administrator designated by You.
13.3 Agreement to Governing Law and Jurisdiction
This Agreement, any Quote are governed by the laws of the State of New South Wales, Australia and any dispute or claim arising in connection with the same is subject to the non-exclusive jurisdiction of the Courts of New South Wales, Australia, operating in Sydney.
14. GENERAL PROVISIONS
14.1. Export Compliance
The Services, other technology We make available, and derivatives thereof may be subject to export laws and regulations of the U.S. Government and also that of other Governments. Each party represents that it is not named on any government denied-party list however described. You must not permit Users to access or use Services in an embargoed country or in violation of any export law or regulation.
You warrant that have not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of Our employees or agents in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If You learn of any violation of the above restriction, You must promptly notify clrHorizon.
14.3. Relationship of the Parties
The parties to this Agreement are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between You and Us.
14.4. No Third-Party Beneficiaries
There are no third-party beneficiaries to this Agreement.
No failure or delay by either party in exercising any right under this Agreement constitutes a waiver of that right.
If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision maybe modified by the Court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement remain in effect.
14.7. Legal Fees
You must pay on demand all of Our reasonable legal fees, reasonable recovery agency costs and commissions and other costs incurred by Us to collect any fees or charges due Us under this Agreement following Your breach of Section 6.2 (Invoicing and Payment).
Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Order Forms), without consent of the other party, to its Affiliate or in connection with a merger, acquisition, corporate reorganisation, or sale of all or substantially all of its assets not involving a direct competitor of the other party. A party’s sole remedy for any purported assignment by the other party in breach of this paragraph shall be, at the non-assigning party’s election, termination of this Agreement upon written notice to the assigning party. Subject to the foregoing, this Agreement binds and inures to the benefit of the parties, their respective successors and permitted assigns.
14.9. Goods and Services Tax
If supply under or in respect of this Agreement becomes subject to Goods and Services Tax (GST), and if the recipient of the consideration is liable to GST in relation to any supply under this Agreement, the parties agree that the amount payable for any supply under or in respect of this Agreement by any party shall be adjusted by the amount of the GST. Each party agrees to do all things, including providing invoices or other documentation in such form and detail that may be necessary to enable or assist the other party to claim or verify any input tax credit, set off, rebate or refund in relation to any GST payable under this Agreement or in respect of any supply under this Agreement.
14.10 Data Protection and Storage
For the absence of doubt, You (i) remain fully and exclusively liable for your obligations under your local privacy laws and legislation, including the General Data Protection Regulations (GDPR) (the Act) at all times as the controller of the data;(ii) represent and warrant that you are in and will remain in compliance with the Act even if you would not otherwise be obliged by law to comply with the Act; and (iii) acknowledge and agree that in the event of a conflict or inconsistency between our own obligations under the Act and this Agreement, our obligations under the Act shall prevail and you have no claim or remedy against us for such conflict or inconsistency.
We will delete your information stored in the Service within a reasonable time after termination of the Service or otherwise after receipt of notice permitting deletion from You (whichever is earlier) unless we are required to maintain copies of the information under law or (in our reasonable opinion) consider that retention of the information is otherwise necessary.
14.11 Personal Information
You agree to inclusion by Us of Your name in a customer list.
14.13 Entire Agreement
This Agreement, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted (by electronic means or otherwise) by the party against whom the modification, amendment or waiver is to be asserted. However, to the extent of any conflict or inconsistency between these terms and conditions and the terms of any Order Form, the terms of the Order Form will prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in Your purchase order or other order documentation (excluding Order Forms) will be incorporated into or form any part of this Agreement, and all such terms or conditions are of no effect.
Annexure A: Data processing provisions
In these terms and conditions, unless the context requires otherwise:
Applicable Law means any law, statute, regulation, by-law or subordinate legislation in force from time to time to which a party is subject and/or in any jurisdiction that the Services are provided to or in respect of, the common law and laws of equity as applicable to the parties from time to time, any binding court order, judgment or decree, any applicable industry code, policy or standard or any applicable direction, policy, rule or order that is binding on a party and that is made or given by any regulatory body having jurisdiction over a party or any of that party’s assets;
Complaint means a complaint or request relating to either party’s obligations under Data Laws relevant to these terms and conditions, including any compensation claim from a Data Subject or any notice, investigation or other action from a Supervisory Authority;
Customer means You;
Data Subject Request means a request made by a Data Subject to exercise any rights of Data Subjects under Data Laws;
Data Laws means any Applicable Law relating to the processing, privacy, and use of Personal Data, as applicable to the Customer, the Supplier and/or the Services, including:(a) the General Data Protection Regulation (EU) 2016/679 (GDPR), and/or any corresponding or equivalent national laws or regulations;(b) any judicial or administrative interpretation of any of the above, any guidance, guidelines, codes of practice, approved codes of conduct or approved certification mechanisms issued by any relevant Supervisory Authority;
Data Protection Losses means all liabilities and other amounts, including all:
(a) costs (including legal costs), claims, demands, actions, settlements, interest, charges, procedures, expenses, losses and damages (including relating to material or non-material damage);
and (b)loss or damage to reputation, brand or goodwill;(c) to the extent permitted by Applicable Law:
(i) administrative fines, penalties, sanctions, liabilities or other remedies imposed by a Supervisory Authority;
(ii) compensation paid to a Data Subject (including compensation to protect goodwill and ex gratia payments); and,
(iii) costs of compliance with investigations by a Supervisory Authority; and,(d) the costs of loading Customer Data, to the extent the same are lost, damaged or destroyed, and any loss or corruption of Customer Data (including the costs of rectification or restoration of Customer Data);
Personal Data Breach means any breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, any Protected Data;
Protected Data means Personal Data received from or on behalf of the Customer, or otherwise obtained in connection with the performance of the Supplier’s obligations;
Supervisory Authority means any local, national or multinational agency, department, official, parliament, public or statutory person or any government or professional body, regulatory or supervisory authority, board or other body responsible for administering Data Laws;
Supplier means Us.
Specific interpretive provision(s)
In clauses (a) to 10 (inclusive) in this Annexure and also these terms and conditions
(a) “Data Controller” (and “controller”), “Data Processor” (and “processor”), “Data Subject”, “international recipient”, “Personal Data” and “processing” all have the meanings given to those terms in Data Laws (and related terms such as “process” have corresponding meanings);
(b) references to any Applicable Laws (including to the Data Laws and each of them) and to terms defined in such Applicable Laws shall be replaced with or incorporate (as the case may be) references to any Applicable Laws replacing, amending, extending, re-enacting or consolidating such Applicable Law (including particularly the GDPR) and the equivalent terms defined in such Applicable Laws, once in force and applicable;
(c) a reference to a law includes all subordinate legislation made under that law; and,
(d) clauses (a) to 10 (inclusive) shall survive termination (for any reason) or expiry of this Agreement (or of any of the Services).
Data processing provisions
1. Data Processor and Data Controller
(a) The parties agree that, for the Protected Data, the Customer shall be the Data Controller and the Supplier shall be the Data Processor.
(b) The Supplier shall comply with all Data Laws in connection with the processing of Protected Data, the Services and the exercise and performance of its respective rights and obligations under this Agreement.(c) The Customer shall comply with all Data Laws in respect of the performance of its obligations under this Agreement.
2. Instructions and details of processing
(a) Insofar as the Supplier processes Protected Data on behalf of the Customer, the Supplier:
(i) unless required to do otherwise by Applicable Law, shall (and shall ensure each person acting under its authority shall) process the Protected Data only on and in accordance with the Customer’s documented instructions as set out in this clause 2 and the Schedule (Schedule - Data Processing Details), and as updated from time to time by the written agreement of the parties (Processing Instructions); and,
(ii) if Applicable Law requires it to process Protected Data other than in accordance with the Processing Instructions, shall notify the Customer of any such requirement before processing the Protected Data (unless Applicable Law prohibits such information on important grounds of public interest).
(b) The processing to be carried out by the Supplier under this Agreement shall comprise the processing set out in the Schedule (Schedule - Data Processing Details), and such other processing as agreed by parties the parties in writing from time to time.
3. Technical and organisational measures
(a) The Supplier shall implement and maintain, at its cost and expense, appropriate technical and organisational measures in relation to the processing of Protected Data by the Supplier:
(i) such that the processing will meet the requirements of Data Laws and ensure the protection of the rights of Data Subjects;
(ii) so as to ensure a level of security in respect of Protected Data processed by it is appropriate to the risks that are presented by the processing, in particular from accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to Personal Data transmitted, stored or otherwise processed; and,
(iii) without prejudice to clause 5
(a), insofar as is possible, to assist the Customer in the fulfilment of the Customer’s obligations to respond to Data Subject Requests relating to Protected Data.
(b) Without prejudice to clause 3(a)(ii), the Supplier shall, in respect of the Protected Data processed by it under this Agreement comply with the requirements regarding security of processing set out in Data Laws and in this Agreement.
4. Using staff and other processors
(a) The Supplier shall not engage another Data Processor (“Data Sub-Processor”) except those set out in the Schedule (Schedule – Approved Data Sub-Processors) or additional Data Sub-Processors for carrying out any processing activities in respect of the Protected Data without the Customer’s express consent and, if such consent is given, only provided that such other Data Sub-Processor:
(i) agrees to be bound by the same terms as under this Annex D, including in particular this clause and clause 6; and,
(ii) remains liable for the acts of its subcontractors as if they were its own.(b) In addition to clause 4(a), the Customer gives consent to use a Data Sub-Processor by providing account credentials to the Supplier for that Data Sub-Processor and the Customer is liable for the acts of its nominated Data Sub-Processors.
(c) The Supplier shall ensure that all Supplier Personnel processing Protected Data are subject to a binding written contractual obligation with the Supplier to keep the Protected Data confidential (except where disclosure is required in accordance with Applicable Law, in which case the Supplier shall, where practicable and not prohibited by Applicable Law, notify the Customer of any such requirement before such disclosure).
(d) Without prejudice to any other provision of clauses (a) to 10 (inclusive), the Supplier shall ensure that the Supplier Personnel processing Protected Data are reliable and have received adequate training on compliance with clauses (a) to 10 (inclusive) and the Data Laws applicable to the processing.
5. Assistance with the Customers applicable to the processing reason
(a) The Supplier shall:
(i) promptly record and then refer all Data Subject Requests it receives to the Customer within three (3) business days of receipt of the request;
(ii) where not available directly to the Customer via the Services, provide such information and cooperation and take such action as the Customer reasonably requests in relation to a Data Subject Request, within the timescales reasonably required by the Customer; and
(iii) not respond to any Data Subject Request without the Customer’s prior written approval.
(b) Without prejudice to clause 22(a), the Supplier shall provide such information, co-operation and other assistance as the Customer reasonably requires (taking into account the nature of processing and the information available to the Supplier) to the Customer in ensuring compliance with the Customer’s obligations under Data Laws, including with respect to:
(i) security of processing;
(ii) data protection impact assessments (as such term is defined in Data Laws);
(iii) prior consultation with a Supervisory Authority regarding high risk processing; and,
(iv) any remedial action and/or notifications to be taken in response to any Personal Data Breach and/or Complaint, including (subject in each case to the Customer's prior written authorisation) regarding any notification of the Personal Data Breach to Supervisory Authorities and/or communication to any affected Data Subjects.
6. International data transfers
(a) The Supplier shall not transfer any Protected Data to any international organisation (an International Recipient) without the Customer’s prior written consent.
7. Records, information and audit
(a) The Supplier shall maintain complete, accurate and up to date written records of all categories of processing activities carried out on behalf of the Customer, containing such information as the Customer may reasonably require, including:
(i) the name and contact details of the Data Processor(s) and of each Data Controller on behalf of which the Data Processor is acting, and of the Supplier’s representative and data protection officer (if any);
(ii) the categories of processing carried out on behalf of each Data Controller;
(iii) where applicable, details of transfers of Protected Data to an International Recipient; and,
(iv) a general description of the technical and organisational security measures referred to in clause 3(a).
(b) The Supplier shall make available to the Customer on request in a timely manner (and in any event within 3 business days) copies of the records under clause 7(a) , and such other information as the Customer reasonably requires to demonstrate the Supplier’s compliance with its obligations under Data Laws and these terms and conditions. (c) The Supplier shall at no cost to the Customer:
(i) allow for and contribute to audits, including inspections, conducted by the Customer or another auditor mandated by the Customer for the purpose of demonstrating compliance by the Supplier with its obligations under Data Laws and under clauses (a) to 10 (inclusive); and
(ii) provide (and procure) reasonable access for the Customer or such other auditor (where practicable, during normal business hours) to
(A) the records, as described in 7(a); and,
(B) to the Supplier Personnel, provided that the Customer gives the Supplier reasonable prior notice of such audit and/or inspection.
(d) The Supplier shall promptly resolve, at its own cost and expense, all data protection and security issues discovered by the Customer and reported to the Supplier that reveal a breach or potential breach by the Supplier of its obligations under any of clauses (a) to 10 (inclusive).
(e) If the Supplier is in breach of its obligations under any of clauses (a) to 10 (inclusive), the Customer may suspend the transfer of Protected Data to the Supplier until the breach is remedied.
(f) The Customer shall be entitled to share any notification, details, records or information provided by or on behalf of the Supplier under any of clauses (a) to 10 (inclusive) (including under clauses 7 or 8) with the Customer Group, its professional advisors and/or the Supervisory Authority.
8. Notification of breach
(a) In respect of any Personal Data Breach, the Supplier shall:
(i) notify the Customer of the Personal Data Breach without undue delay (but in no event later than 24 hours after becoming aware of the Personal Data Breach); and
(ii) provide the Customer without undue delay (wherever possible, no later than 24 hours after becoming aware of the Personal Data Breach) with such details as the Customer reasonably requires regarding:
A) the nature of the Personal Data Breach, including the categories and approximate numbers of Data Subjects and Protected Data records concerned;
(B) any investigations into such Personal Data Breach;
(C) the likely consequences of the Personal Data Breach; and,
(D) any measures taken, or that the Supplier recommends, to address the Personal Data Breach, including to mitigate its possible adverse effects, provided that, (without prejudice to the above obligations) if the Supplier cannot provide all these details within such timeframes, it shall (before the end of this timeframe) provide the Customer with reasons for the delay and when it expects to be able to provide the relevant details (which may be phased), and give the Customer regular updates on these matters.
(b) The Supplier shall promptly (and in any event within three (3) business days) inform the Customer if it receives a Complaint and provide the Customer with full details of such Complaint, but not respond to any Complaint without the Customer’s prior written approval.
9. Deletion of Protected Data and copies
(a) The Supplier must promptly carry out requests from the Customer to delete all Protected Data for the purpose of ensuring the Customer’s compliance with the principles relating to processing of personal data, in particular those regarding data minimisation, accuracy and storage limitation.
(b) The Supplier shall without delay, at the Customer’s written request, securely delete all the Protected Data to the Customer in such form as the Customer reasonably requests after the earlier of the end of the provision of the relevant Services related to processing or once processing by the Supplier of any Protected Data is no longer required for the purpose of the Supplier’s performance of its relevant obligations under these terms and conditions, and securely delete existing copies.
10. Liability and indemnities
(a) The Supplier shall indemnify and keep indemnified, up to the cap specified in Section 11, the Customer in respect of all Data Protection Losses suffered or incurred by, awarded against or agreed to be paid by, the Customer or any member of the Customer Group arising from or in connection with:
(i) any breach by the Supplier of any of its obligations under clauses 1 to 9 (inclusive); or,
(ii) the Supplier (or any person acting on its behalf) acting outside or contrary to the lawful Processing Instructions of the Customer in respect of the processing of Protected Data.
(b) This clause 10 is intended to apply to the allocation of liability for Data Protection Losses as between the parties, including with respect to compensation to Data Subjects, notwithstanding any provisions under Data Laws to the contrary, except:
(i) to the extent not permitted by Applicable Law (including Data Laws); and, (ii) to the extent not permitted by Applicable Law (including Data Laws); and
(iii) that it does not affect the liability of either party to any Data Subject.
Schedule - Data Processing DetailsSubject-matter of processingCorporate officers and employees, staff of counterparties, regulators and stakeholders will have personal data collected
Duration of the processingFor the term the Services is provided.
Nature and purpose of the processingPersonal data relating to compliance & risk management and corporate governance are collected by the Customer using the Services deliverables. The data to be collected is determined by the Customer and typically includes, name, email, telephone number, and other personal identification information. In addition, an IP Address is collected. The purpose of processing this information is to assist in compliance & risk management and corporate governance activities of the Customer.
Type of Personal Data: In addition to IP Address and email address, the Type of Personal Data to be collected is determined by the Customer.Categories of Data Subjects: The category of Data Subjects is determined by the Customer.
Processing Instructions a) Technical and organisational security measures
All Personal Data is to be stored in a cloud database that is not shared with any other customer of the Supplier..Many features in the Service deliverables can be used by the Customer to Process Personal Data. These include reporting, export, interfaces to external Customer systems, email, consent management, anonymisation and more. The Customer can utilise these features to manage their own Processing Instructions.
Approved Data Sub-Processors: The Supplier has contracted the following organisations as Data Processors to supply services used in processing and storing Personal Data for the Customer:
Version 1.5: 1 February 2019