1.1 Welcome to ‘FestivalPro’ (“FestivalPro”), which is operated by Festival Pro Limited, a company incorporated in England and Wales with registered number: 11678635 and registered address: R.A.D. Labs, 64 Cropley Street, London, N1 7GX) (“us”, “we”, or “our”).
1.2 Festival Pro provides an enhanced event management system for festivals, conferences and other events (“Event”) with the ability to manage applications, selections, selection, scheduling, contracting, ticketing, and scanning (the “Services”). Full details of the Services and their features are available at https:// www.festivalpro.com (the “Website”).
1.3 All terms and conditions governing the use of FestivalPro and the Services are available on the Website. Note that we may post additional terms that apply to certain services, activities, competitions, applications or other features we provide, for example third party payments terms (the “Additional Terms”). We will provide notification via the Website when and where the Additional Terms are posted. You must check that you are able to comply with the Additional Terms. In the event of any conflict between the terms of the Additional Terms and these Terms, the Additional Terms shall prevail.
2.2 You agree that we may automatically upgrade, amend or update our Services, and you accept that these Terms will apply to any such upgrades, amendments or updates. We will always inform you when any such amendment, update or upgrade takes place.
3.1 Use of FestivalPro requires an account (an “Account”). You agree to provide us with complete and accurate information when you register for an Account.
3.2 You agree to maintain the confidentiality of your Account, credentials, and any passwords necessary to use FestivalPro. If you believe that there has been an unauthorised use of your Account, credentials or password, you must (i) immediately change your credentials and/or password and (ii) notify us in writing immediately upon becoming aware that your Account has been compromised.
3.3 You undertake and agree to be solely responsible and liable with respect to any of the uses, including by you or your end users (“End Users”), of the Services which occur under your Account and for any of content uploaded or provided by you, or imported, copied or uploaded for you, on your behalf or on your instructions or with your consent (explicit or implied), to your Account (“Customer Provided Data”) (including for any consequences of accessing, using or publishing Customer Provided Data on or with respect to the Services).
3.4. You agree to comply with all applicable laws (including Data Protection Laws) relating to End Users and Customer Provided Data and to implement appropriate measures to limit the access to your Account to End Users only and will ensure the Account log in details are kept secure.
4.1 The Services are to be accessed via a network connection. We are not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and you acknowledge that the Services may be subject to limitations, delays and other problems inherent in the use of such network connection.
4.2 We do not warrant that:
4.2.1 your use of FestivalPro will be uninterrupted or error-free;
4.2.2 that all the Services and/or the information obtained by you through the Services will meet all your requirements.
5.1 The term of your FestivalPro subscription starts on the date you pay the FestivalPro System Set-up Fee and runs for a minimum period of 12 months unless terminated in accordance with these Terms (the “Order Term”). In the case of any renewal to your subscription under clause 9.3, any reference to Order Term shall include any renewal period.
6.1 Messaging facilities
6.1.1 FestivalPro may provide you with functionality which allows you to send and receive messages to and from third parties (“Messages”). You are solely responsible for your Messages and the consequences of sending or receiving them.
6.1.2 You agree to indemnify us for any losses we suffer because of any Messages you send via FestivalPro.
6.2 Ownership of Customer Provided Data
6.2.1. As between you and us, you are and will remain the sole and exclusive owner of all rights in the Customer Provided Data.
6.2.2 You hereby grant to us a non-exclusive, royalty-free licence, together with all the necessary rights to the Customer Provided Data that we require, to provide FestivalPro and allow you to use the Services and you confirm that you have the right to grant us this licence. You will indemnify us for any losses we suffer because of you not having the right to grant us such licence and rights.
6.2.3 You confirm that Customer Provided Data is (and will continue to be) true, current, accurate, non-infringing upon any third party rights or data protection principles, and in no way unlawful for you to upload, import, copy, possess, post, transmit, display or otherwise use, in the country in which you or your End Users reside, or for us and/or your End Users to access, import, copy, upload, use or possess in connection with FestivalPro.
6.2.4 We will only use the Customer Provided Data as necessary to provide FestivalPro, technical support, or as otherwise required by applicable law.
7.1 For the avoidance of doubt, we do not and will not provide banking, deposit taking, stored value, insurance or any other financial services to you and it is your responsibility to open and operate a compatible bank account for any ticket revenue to be paid into (such as Stripe or PayPal). We will show you a balance of proceeds for your events in your Account; however, that balance merely reflects the amount of fees collected by the third-party payment service provider.
7.2 Upon an order for tickets being placed by an attendee and confirmed through FestivalPro, FestivalPro generates a confirmation message and issues a unique confirmation number and QR code for an attendee’s order. You agree to unconditionally accept, honor and fulfill all ticketing, registration, merchandise and donation commitments that have been confirmed by us through the provision of the Services, and it is your responsibility to verify an attendee’s confirmation number and/or any event restrictions prior to the applicable event.
7.3 As part of the creation of a paid event or at any time following such creation, you may be required by FestivalPro to provide additional information (beyond the information required to register for the Services) about yourself, the entity you represent (if any) and the principals/beneficial owners of the entity you represent (if any) (collectively, “Additional Registration Data”). As an example (but without limitation), the Additional Registration Data may include a current address, doing business as (DBA) names, description of products, website address, bank account or other payment account information, tax identification numbers, date of birth, passport or driver’s licence number, country of origin, copies of government identification documents and other personal information. This information may be used to verify your identity, the validity and/or legality of your transactions and/or whether you qualify to use the Services for paid events. You agree to: (i) provide this information in a timely, accurate and complete manner and (ii) maintain and promptly update this information in a timely manner to ensure it remains accurate and complete at all times.
8.1 You are solely responsible for determining which, if any, sales, use, amusement, value added, consumption, excise and other taxes, duties, levies and charges (collectively, “Taxes”) apply to your use of the Services and you agree that it is your sole responsibility to, and that you will, collect, remit and report the correct amounts of all such Taxes to the applicable governmental authorities, even if we provide you with tax tools or tax calculators that assist you in doing so.
8.2 We do not represent, warrant or guarantee that any tax tools or tax calculators provided to you will meet all tax requirements that may be applicable to you or that such tax tools or tax calculators will result in your collection or remittance of all applicable Taxes, which Taxes may vary based on the nature of your event, the nature of your tax status (individual, entity, business, consumer, etc.), your location, the location of your attendees, credits and deductions for which you may qualify and other factors, and you hereby release us from any and all liability with respect to your use of the tax tools and/or tax calculators. None of such tax tools or tax calculators should be considered legal or tax advice. If you use any tax tools or tax calculators that require you to input a tax registration number, you represent and warrant that such tax registration number is true and correct. We cannot give you legal or tax advice, so please be sure to check with your own tax advisor about any applicable Taxes.
8.3 To comply with sales tax regulations of the European Union (the “EU”), and the UK, FestivalPro is required to collect various Taxes and you agree to use all reasonable endeavours to assist us in this respect.
9.1.1. FestivalPro is offered for a fee. By using FestivalPro you agree to pay the fees specified on our Website (or separately communicated to you in the case of the Premium Services package).
9.1.2. There is a subscription fee for the Services package selected by you pursuant to clause 9.1.3 below, and a fee for the use of the FestivalPro system for all invoices processed through Festival Pro pursuant to clause 9.1.4 below.
9.1.3. The subscription payable by you will depend upon the Service package selected from Basic, Starter, Pro or Premium. (Multiple Events are not included in any Services package other than Premium). The fees on the Website are quoted as a monthly fee however note that they are payable annually in advance until your subscription is terminated in accordance with these Terms.
9.1.4. For managing your invoices and payments using FestivalPro, we will charge you an amount equal to 2% of the gross value of all invoices generated by the FestivalPro system plus any applicable Taxes (VAT if due) without any set-off or deduction (the “Transactions Fee”). You are entitled at your sole discretion to make an additional charge, such as a booking fee, to your third parties to cover the cost of the Transaction Fee.
9.1.5. Payment Services Provider (“PSP”): We only use third-party payment service providers (such as Stripe) to take payment and process payments made under FestivalPro. Your use of the PSP system is subject to their Additional Terms. You shall pay the charges made by the PSP in respect of all payments via or using the PSP. We will accept no liability for any charges incurred by the PSP to you for your payments, or any loss incurred because of the use of their payment system.
9.1.6. If you require support, consultancy or other services which are outside the scope of the Services package (or in addition to those which can be provided as part of the standard support packages listed on our Website (to be decided in our absolute discretion)), we will offer you a separate quote for our fees for providing such services.
9.2.1. We take payment in GBP/USD/AUD/CAD/EUR/NZD. Once a payment is received for your invoices generated in FestivalPro, we will take payment of the 2% Transaction Fee and this happens automatically. If you choose to make a refund on the payment received by you from a third party (such as a customer, an artist, a vendor), we do not make a refund of the Transaction Fee related to that original payment.
9.2.2. If for any reason there is non-payment of fees for the Services or you do not pay the fees on time, we may immediately cancel or revoke your access to FestivalPro and/or suspend the provision of any Services. If you instruct the PSP, your bank or credit card company to decline or reverse the payment instruction for the payment of our fees, we may revoke your access to FestivalPro, at our sole discretion.
9.2.3. We shall issue our invoices to you which reflect all payments already received from you for the Transaction Fees under clause 9.2.1 above.9.3. Automatic Renewal
9.3.1. To ensure uninterrupted service, your subscription to our FestivalPro is automatically renewed on the expiry of the Order Term (or any subsequent period of subscription). This means that unless you cancel a FestivalPro 30 (thirty) days before the end of the applicable subscription period, it will be automatically renewed, and you authorise us to collect payment for the applicable subscription fee (as well as any Taxes). Your FestivalPro subscription will be automatically renewed for the same period as your first Order Term. For example, if you subscribed for a 12-month period, you will be charged for each 12-month period upon renewal.9.4. Refunds
9.4.1. Subject to clause 9.5 below, while you may cancel your subscription FestivalPro at any time, we will not provide any refunds. There is a minimum Order Term of 12 months which applies to the use of the Services.9.5. Fee Changes
9.5.1. We may change our subscription fees or Transaction Fees for FestivalPro at any time. We will give you advance notice in writing of any fee changes. If you do not agree with the new fee, you may cancel FestivalPro in writing within 30 (thirty) days of the notice from us of the change in fees.
9.5.2. Our prices will be quoted in writing or, in the absence of a written quote, the prices set out on our Website will apply.9.6. Invoices
9.6.1. All our invoices are payable within thirty (30) days of our invoice date. We may suspend or cancel your use of FestivalPro if you breach your obligations under this clause.9.7. Interest on Late Payment
9.7.1. If invoices are not settled in full and on time you will be liable to pay interest at the annual rate of 5% above the Bank of England’s base rate accruing on a daily basis on any sum outstanding from the due date of the payment until payment is made whether before or after any judgement.
10.1. FestivalPro may be used only for your internal business purposes and you may not:
10.1.1. use our systems in such a manner that cause you to overload our systems or exceed any usage limitations identified in any Additional Terms;
10.1.2. exceed the number of users you have purchased from us under the Services package selected by you;
10.1.3. sell, resell, license, sublicense, lease, rent, or distribute FestivalPro, or include FestivalPro as a service or outsourcing offering, or otherwise commercially exploit, or make any portion of FestivalPro available for the benefit of any third party;
10.1.4. copy or reproduce any portion, feature, function, or user interface of FestivalPro;
10.1.5. interfere with or disrupt the integrity or performance of FestivalPro;
10.1.6. use FestivalPro to submit, send, or store material that is obscene, threatening, libelous or otherwise unlawful or tortuous material, violates any third party’s privacy rights, or infringes upon or misappropriates Intellectual Property Rights (as such term is defined below);
10.1.7. use FestivalPro to disrupt or cause harm to a third party’s system or environment;
10.1.8. access FestivalPro to build a competitive product or service; or
10.1.9. reverse engineer disassemble, or otherwise reduce to human-perceivable form all or any aspect of FestivalPro.
The rights provided under these Terms are granted to you only and shall not be considered granted to any of your subsidiary or holding companies.
11.1.1. Where information disclosed by one Party to the other under these Terms is marked as 'confidential' or the circumstances of its disclosure reasonably dictate that it should be considered confidential, the other Party shall treat such information as confidential. Disclosed confidential information must: (i) only be used by the receiving party, and (ii) not be disclosed to any other company or person unless strictly necessary, for the purpose of fulfilling its obligations under these Terms. This clause does not apply to information that: (i) was known or becomes known to the receiving party without obligation of confidentiality; (ii) is created separately by the receiving party; or (iii) where disclosure is required by applicable law.
11.1.2. The provisions of clause 11.1.1 shall survive termination or expiry of these Terms for any reason.
11.2. Personal Information
11.2.1. You warrant that you shall comply in all aspects with your obligations within Schedule 1.
11.2.2. You will ensure that you have all necessary consents, permissions and licences to make use of the Services. This includes obtaining all appropriate consents and approvals from third parties and attendees as required under applicable data protection legislation.
11.2.3. In providing the Services we will be acting as a data processor and you will be acting as data controller in respect of any of your customers’ personal information (“PII”).
11.2.4. Both parties agree to comply with their obligations under relevant data protection legislation.
11.3. Data Security
11.3.1. We shall comply with all our obligations in respect of Data Protection Legislation in keeping personal data secure.
12.1. Our ability to deliver FestivalPro will depend on your reasonable and timely cooperation, and the accuracy and completeness of any information needed from you to deliver FestivalPro.
12.2. If we make any Services available under a BETA version of such services, we may withdraw the BETA version in its entirety or any part, at any time. Should you choose to use a BETA version, you acknowledge that it may contain errors or bugs which materially affect the operation of the Services and you agree to use any BETA versions at your own risk. We accept no liability whatsoever for your use of any BETA features or versions of FestivalPro.
13.1.1. modify the systems and environment used to provide FestivalPro; and
13.1.2. make any changes to FestivalPro that it deems necessary or useful to maintain or enhance the quality or delivery of our services to our customers, the competitive strength of or market for our services, or FestivalPro’ cost efficiency or performance.
14.1.1. We shall use all reasonable endeavours to make FestivalPro available 99.9% of the time, subject to emergency and scheduled maintenance.
14.1.2. We will provide FestivalPro using reasonable care and skill. We will use commercially reasonable endeavours to ensure FestivalPro is generally available but you acknowledge that on occasion FestivalPro will be unavailable to permit maintenance or other development activities to take place. We shall endeavour to provide you with reasonable notice of any planned downtime for maintenance.
14.2.1. We will charge you for support tickets you raise where such support is not included in the Services package selected as described on our Website. For the avoidance of doubt, if you subscribe to the Pro package, you will receive fifteen assisted support sessions but a specific request for support that is not within the scope of the support sessions will be charged in addition. We calculate one support ticket as taking 1 hour of our time to resolve.
14.2.2. To the extent you require advanced support (which is outside the scope of our Services packages as set out on the Website) we will provide you with a separate quote for providing you with such assistance.
15.1. Warranty. We warrant that:
(a) we will perform the Services of FestivalPro using qualified personnel using reasonable care and skill and in a professional manner in compliance with industry standards;
(b) FestivalPro complies with all applicable laws, which may be in force from time to time.
15.2. Exclusions. We do not warrant that FestivalPro will be uninterrupted or error free. To the extent permitted by law, we disclaim all other warranties other than those set out in these Terms.
For the purposes of these Terms “Intellectual Property Rights” means patents, utility models, rights to inventions, copyright (including, but not limited to rights in software) and neighbouring and related rights, trademarks and service marks, trade or business names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, registered and unregistered rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know- how and trade secrets) and all other intellectual property rights whatsoever, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world and “IP” means intellectual property to which such rights relate.
16.1. Your licence of IP. You grant us a worldwide, non-exclusive, non-transferable, royalty-free right and licence to any Intellectual Property Rights, including (without limitation) Customer Provided Data, that is necessary for us and our designees to have access to in order to perform our obligations under these Terms.
16.2. Transfer of IP. No transfer of ownership of any Intellectual Property Rights will occur under these Terms. You acknowledge and agree that we and/or our licensors own all Intellectual Property Rights in the Services and the FestivalPro system. Except as expressly stated herein, nothing in these Terms grant you any rights to, under or in, any patents, copyright, database right, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licences in respect of the Services or the FestivalPro system.
16.3. Licence Termination. If you fail to comply with any of these Terms, we may terminate any licence granted under these Terms upon written notice with immediate effect.16.4. Infringements of Intellectual Property Right. We are not responsible for claims resulting from Customer Provided Data or from any unauthorised use of the products or our Services. You will indemnify us from and against third party claims whether actual claims or allegations, arising from Customer Provided Data or customised configuration or designs (i) performed or provided by you or (ii) performed at your direction.
17.1. You agree to fully indemnify and keep us and our associated companies, officers, partners, employees and agents fully indemnified from and against all actions, proceedings, demands, costs (on a full indemnity basis), losses (including without limitation, loss of business or loss of profits), penalties, damages, liability, claims and expenses (including legal fees) whatsoever incurred by it and arising from any of the following:
184.108.40.206 breach of these Terms
220.127.116.11 negligence; or
18.104.22.168 other default;
17.1.2 the operation or break down of any IT systems owned or used by you; and 17.1.3 your use or misuse of the Services.
18.1 Nothing in these Terms excludes liability:
18.1.1 for death or personal injury caused by our negligence; or
18.1.2 for fraud or fraudulent misrepresentation.18.2 Subject to clause 18.1
18.2.1 we shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits (direct or indirect), loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under these Terms; and
18.2.2 our total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of these Terms shall be limited to the amount paid by you to us under these Terms in the 12 months preceding the date on which you first bring your claim against us.
19.1. These Terms form the entire agreement between you and us. You acknowledge that you have not relied on any statement, promise or representation made or given by us or on our behalf. These Terms apply to the exclusion of any other terms that you propose, impose or incorporate (or attempt to impose or incorporate) or which are implied by trade, custom, practice or course of dealing.
20.1. “Force Majeure Event” means an event beyond the reasonable control of either party including any act of God, insurrection or civil disorder, war, epidemic, pandemic, S.A.R.S, swine flu, avian flu, military operations, act or material threat of terrorism, national or local emergency, acts or omissions of government, highway authority or other competent authority, industrial disputes of any kind (not involving either party’s employees), interruption in, delay or failure of necessary transportation or technical facilities, fire, lightning, explosion, death of a member of the Royal Family, national mourning, flood, subsidence, weather of exceptional severity, civil disturbance, strike, lock-out, other industrial disturbance or change in state or local government law, denial of service attacks, cyber-attacks possible due to us not following good industry practice, data loss caused by software we have no control over or any other cause beyond a party’s reasonable control.
20.2 Subject to the rest of this clause 20 and except for payment obligations, if either party is unable to perform an obligation under these Terms due to a Force Majeure Event, that Party's failure to perform that obligation shall not constitute a breach or, or default under, these Term.
20.3 As soon as reasonably practicable, the Party affected by the Force Majeure Event will:
20.3.1 notify the other Party in writing of the existence and likely effect of the Force Majeure Event;
20.3.2 use reasonable endeavours to minimise the impact of the Force Majeure Event; and
20.3.3 notify the other Party in writing if performance of its obligations under these Terms is no longer prevented due to the Force Majeure Event.20.4 If the Force Majeure Event continues for a period in excess of thirty (30) days (or such shorter time period that is reasonable in the circumstances given the nature and timing of the Force Majeure Event), either party may terminate this agreement on giving seven (7) days' written notice.
21.1. We may suspend your access and use of FestivalPro if:
21.1.1. you breach these Terms and you fail to remedy the breach which is capable of being remedied within a reasonable period (to be determined in our absolute discretion) after being notified by us in writing; or
21.1.2. your use of FestivalPro violates any applicable laws.
21.2. The suspension will become effective after the lapse of the cure period (where applicable).
21.3. You will remain responsible for any applicable fees from the date of the suspension and during the suspension period. This includes usage and data storage fees.
22.1. Termination on Notice
22.1.1. These Terms may be terminated on written notice by a Party if the other Party materially breaches these Terms and fails to remedy its breach within a reasonable period after being notified of such a breach in writing by the other Party.
22.1.2. These Terms may also be terminated for convenience by either party providing the other party with 30 days’ notice in writing. If you choose to terminate these Terms and therefore your use of the Services for convenience, this right is subject to your payment of the fees for the minimum Order Term, for example for a 12-month Order Term and terminate in month 4, then you are liable for the remaining 8 months of the Order Term and no refunds shall be made in respect of the unused period of the Order Term.
22.2.1. If a Party becomes insolvent, unable to pay its debts when due, files for or is subject to bankruptcy or receivership, or asset assignment, the other Party may, where permitted by law, terminate these Terms and cancel and unfulfilled obligations.
22.3.1. We may terminate these Terms on 30 days’ notice if your access and use has been suspended.
22.4. Effect of Termination
22.4.1. Except where the termination is our fault, you shall not be entitled to any refunds, and payment obligations cannot be cancelled. On the termination or expiration of an Order Term, except where otherwise stated in the Additional Terms:
22.214.171.124. we may disable all of your access to the applicable Services and FestivalPro;
126.96.36.199. you shall promptly return to us or, at our request, destroy any of our property or software provided with FestivalPro; and188.8.131.52. we will make all Customer Provided Data available in the format generally provided by us, or as specified in applicable Additional Terms.
23.1. Any term which should reasonably be expected to survive termination or expiration of these Terms will survive termination of these Terms, will remain in effect until it is fulfilled, and shall apply to both Parties’ respective successors and permitted assigns.
24.1. The ability of third parties to enforce any rights under the Contracts (Rights of Third Parties) Act 1999 is hereby excluded.
25.1. Neither Party shall commit, authorise or permit any act that could be an offence under any applicable anti-bribery or anti-corruption laws, including, without limitation, the Bribery Act 2010 and the United States Foreign Corrupt Practices Act ("Anti-Bribery Laws").
25.2 Both Parties represents and warrants that they have implemented adequate procedures (as defined in the Bribery Act 2010) in their business to prevent bribery occurring.
25.3 Neither Party shall offer or give, or agree to give, to any employee, representative or third party acting on their behalf, nor accept or agree to accept from any employee, representative or third party acting on their behalf, any gift or benefit (whether monetary or otherwise), that the recipient is not legally entitled to with regard to the negotiation, conclusion or the performance of its obligations under these Terms.
25.4 Either Party shall promptly notify the other if it becomes aware of, or has any suspicion of, any corruption with regard to the negotiation, conclusion or the performance of its obligations under these Terms.
25.5 Neither Party shall engage in any conduct that would place either Party in breach of any obligations under any Anti-Bribery Laws.
26.1. Each Party agrees to comply with the laws applicable to its business and you also agree to comply with any laws applicable to End Users in any of your geographical locations, including, without limitation, any applicable privacy, data protection and anti-spam laws.
We are entitled to make variations to these Terms at any time where such terms do not materially detract from the Services provided to FestivalPro. The latest version of our Terms shall be found at [yoursystemname].festivalpro.com/terms.html
28.1 These Terms and any dispute arising under or in any way connected with the subject matter of these Terms (whether of a contractual or tortious nature or otherwise) shall be governed by and construed in accordance with the law of England and Wales, and the parties submit to the exclusive jurisdiction of the English and Welsh Courts.
This Personal Data Processing Agreement (Agreement”) sets out the additional terms, requirements and conditions on which we (the “Provider) will process Personal Data when providing services under the Terms. This Agreement contains the mandatory clauses required by Article 28(3) of the retained EU law version of the General Data Protection Regulation ((EU) 2016/679) for contracts between controllers and processors. For details of the Australian Privacy Act, see the end of this document.
1. Definitions and Interpretation
The following definitions and rules of interpretation apply in this Agreement.
1. Business Purposes: the services to be provided by the Provider to the Customer as described in the Terms.
2. Commissioner: the Information Commissioner (see Article 4(A3), UK GDPR and section 114, DPA 2018).
3. Controller, Processor, Data Subject, Personal Data, Personal Data Breach and Processing: have the meanings given to them in the Data Protection Legislation.
4. Controller: has the meaning given to it in section 6, DPA 2018.
5. Data Protection Legislation:
5.a) To the extent the UK GDPR applies, the law of the United Kingdom or of a part of the United Kingdom which relates to the protection of Personal Data.
5.b) To the extent the EU GDPR applies, the law of the European Union or any member state of the European Union to which the Customer or Provider is subject, which relates to the protection of Personal Data.
6. Data Subject: the identified or identifiable living individual to whom the Personal Data relates.
7. EU GDPR: the General Data Protection Regulation ((EU) 2016/679). EEA: the European Economic Area.
8. Personal Data: means any information relating to an identified or identifiable living individual that is processed by the Provider on behalf of the Customer as a result of, or in connection with, the provision of the services under the Terms; an identifiable living individual is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of the individual.
9. Processing, processes, processed, process: any activity that involves the use of the Personal Data. It includes, but is not limited to, any operation or set of operations which is performed on the Personal Data or on sets of the Personal Data, whether or not by automated means, such as collection, recording, organisation, structuring, storage, adaptation or alteration, retrieval, consultation, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction. Processing also includes transferring the Personal Data to third parties.
10. Personal Data Breach: a breach of security leading to the accidental, unauthorised or unlawful destruction, loss, alteration, disclosure of, or access to, the Personal Data.
11. Processor: a natural or legal person, public authority, agency or other body which processes personal data on behalf of the Controller.
12. Records: has the meaning given to it in Clause 12.
13. Term: this Agreement's term as defined in Clause 10.
14. UK GDPR: has the meaning given to it in section 3(10) (as supplemented by section 205(4)) of the DPA 2018.
1.2. This Agreement is subject to the Terms and is incorporated into the Terms. Interpretations and defined terms set forth in the Terms apply to the interpretation of this Agreement.
1.3. The Annexes form part of this Agreement and will have effect as if set out in full in the body of this Agreement. Any reference to this Agreement includes the Annexes.
2. Personal data types and processing purposes
2.1. The Customer and the Provider agree and acknowledge that for the purpose of the Data Protection Legislation: (a) the Customer is the Controller and the Provider is the Processor.
(b) the Customer retains control of the Personal Data and remains responsible for its compliance obligations under the Data Protection Legislation, including but not limited to, providing any required notices and obtaining any required consents, and for the written processing instructions it gives to the Provider.
3. Provider's obligations
3.1. The Provider will only process the Personal Data to the extent, and in such a manner, as is necessary for the Business Purposes in accordance with the Customer's written instructions. The Provider will not process the Personal Data for any other purpose or in a way that does not comply with this Agreement or the Data Protection Legislation. The Provider must promptly notify the Customer if, in its opinion, the Customer's instructions do not comply with the Data Protection Legislation.
3.2. The Provider must comply promptly with any Customer written instructions requiring the Provider to amend, transfer, delete or otherwise process the Personal Data, or to stop, mitigate or remedy any unauthorised processing.
3.3. The Provider will maintain the confidentiality of the Personal Data and will not disclose the Personal Data to third parties unless the Customer or this Agreement specifically authorises the disclosure, or as required by domestic or EU law, court or regulator (including the Commissioner). If a domestic or EU law, court or regulator (including the Commissioner) requires the Provider to process or disclose the Personal Data to a third- party, the Provider must first inform the Customer of such legal or regulatory requirement and give the Customer an opportunity to object or challenge the requirement, unless the domestic or EU law prohibits the giving of such notice.
3.4. The Provider will reasonably assist the Customer, at no additional cost to the Customer, with meeting the Customer's compliance obligations under the Data Protection Legislation, considering the nature of the Provider's processing and the information available to the Provider, including in relation to Data Subject rights, data protection impact assessments and reporting to and consulting with the Commissioner or other relevant regulator under the Data Protection Legislation.
3.5. The Provider must notify the Customer promptly of any changes to the Data Protection Legislation that may reasonably be interpreted as adversely affecting the Provider's performance of the Terms or this Agreement.
4. Provider's employees
4.1. The Provider will ensure that all of its employees:
(a) are informed of the confidential nature of the Personal Data and are bound by written confidentiality obligations and use restrictions in respect of the Personal Data;
(b) have undertaken training on the Data Protection Legislation and how it relates to their handling of the Personal Data and how it applies to their particular duties; and
(c) are aware both of the Provider's duties and their personal duties and obligations under the Data Protection Legislation and this Agreement.
5.1. The Provider shall at all times implement appropriate technical and organisational measures against accidental, unauthorised or unlawful processing, access, copying, modification, reproduction, display or distribution of the Personal Data, and against accidental or unlawful loss, destruction, alteration, disclosure or damage of Personal Data.
5.2. The Provider shall implement such measures to ensure a level of security appropriate to the risk involved, including as appropriate:
(a) the pseudonymisation and encryption of personal data;
(b) the ability to ensure the ongoing confidentiality, integrity, availability and resilience of processing systems and services;
(c) the ability to restore the availability and access to personal data in a timely manner in the event of a physical or technical incident; and
(d) a process for regularly testing, assessing and evaluating the effectiveness of the security measures.
6. Personal data breach
6.1. The Provider will within 24 hours and in any event without undue delay notify the Customer in writing if it becomes aware of:
(a) the loss, unintended destruction or damage, corruption, or unusability of part or all of the Personal Data. The Provider will restore such Personal Data at its own expense as soon as possible.
(b) any accidental, unauthorised or unlawful processing of the Personal Data; or
(c) any Personal Data Breach.
6.2. Where the Provider becomes aware of (a), (b) and/or (c) above, it will, without undue delay, also provide the Customer with the following written information:
(a) description of the nature of (a), (b) and/or (c), including the categories of in-scope Personal Data and approximate number of both Data Subjects and the Personal Data records concerned;
(b) the likely consequences; and
(c) a description of the measures taken or proposed to be taken to address (a), (b) and/or (c), including measures to mitigate its possible adverse effects.
6.3. Immediately following any accidental, unauthorised or unlawful Personal Data processing or Personal Data Breach, the parties will co-ordinate with each other to investigate the matter. Further, the Provider will reasonably co-operate with the Customer at no additional cost to the Customer, in the Customer's handling of the matter, including but not limited to: (a) assisting with any investigation;
(b) providing the Customer with physical access to any facilities and operations affected; (c) facilitating interviews with the Provider's employees, former employees and others involved in the matter including, but not limited to, its officers and directors;
(d) making available all relevant records, logs, files, data reporting and other materials required to comply with all Data Protection Legislation or as otherwise reasonably required by the Customer; and
(e) taking reasonable and prompt steps to mitigate the effects and to minimise any damage resulting from the Personal Data Breach or accidental, unauthorised or unlawful Personal Data processing.
6.4. The Provider will not inform any third-party of any accidental, unauthorised or unlawful processing of all or part of the Personal Data and/or a Personal Data Breach without first obtaining the Customer's written consent, except when required to do so by domestic or EU law.
6.5. The Provider agrees that the Customer has the sole right to determine:
(a) whether to provide notice of the accidental, unauthorised or unlawful processing and/or the Personal Data Breach to any Data Subjects, the Commissioner, other in-scope regulators, law enforcement agencies or others, as required by law or regulation or in the Customer's discretion, including the contents and delivery method of the notice; and
(b) whether to offer any type of remedy to affected Data Subjects, including the nature and extent of such remedy.
6.6. The Provider will cover all reasonable expenses associated with the performance of the obligations under clause 6.1 to clause 6.3 unless the matter arose from the Customer's specific written instructions, negligence, wilful default or breach of this Agreement, in which case the Customer will cover all reasonable expenses.
6.7. The Provider will also reimburse the Customer for actual reasonable expenses that the Customer incurs when responding to an incident of accidental, unauthorised or unlawful processing and/or a Personal Data Breach to the extent that the Provider caused such, including all costs of notice and any remedy as set out in Clause 6.5.
7. Cross-border transfers of personal data
7.1. The Provider (and any subcontractor) must not transfer or otherwise process the Personal Data outside the UK or, the EEA without obtaining the Customer's prior written consent.
8.1. The Provider may not authorise any third party or subcontractor to process the Personal Data.
8.2. The Provider may only authorise a third-party (subcontractor) to process the Personal Data if:
(a) the Customer is provided with an opportunity to object to the appointment of each subcontractor within 7 working days after the Provider supplies the Customer with full details in writing regarding such subcontractor;
(b) the Provider enters into a written contract with the subcontractor that contains terms substantially the same as those set out in this Agreement, in particular, in relation to requiring appropriate technical and organisational data security measures, and, upon the Customer's written request, provides the Customer with copies of the relevant excerpts from such contracts;
(c) the Provider maintains control over all of the Personal Data it entrusts to the subcontractor; and
(d) the subcontractor's contract terminates automatically on termination of this Agreement for any reason.
8.3. Those subcontractors approved as at the commencement of this Agreement are as set out in ANNEX A.
8.4. Where the subcontractor fails to fulfil its obligations under the written agreement with the Provider which contains terms substantially the same as those set out in this Agreement, the Provider remains fully liable to the Customer for the subcontractor's performance of its agreement obligations.
8.5. The Parties agree that the Provider will be deemed by them to control legally any Personal Data controlled practically by or in the possession of its subcontractors.
9. Complaints, data subject requests and third-party rights
9.1. The Provider must, at no additional cost to the Customer, take such technical and organisational measures as may be appropriate, and promptly provide such information to the Customer as the Customer may reasonably require, to enable the Customer to comply with:
(a) the rights of Data Subjects under the Data Protection Legislation, including, but not limited to, subject access rights, the rights to rectify, port and erase personal data, object to the processing and automated processing of personal data, and restrict the processing of personal data; and
(b) information or assessment notices served on the Customer by the Commissioner or other relevant regulator under the Data Protection Legislation.
9.2. The Provider must notify the Customer immediately in writing if it receives any complaint, notice or communication that relates directly or indirectly to the processing of the Personal Data or to either party's compliance with the Data Protection Legislation.
9.3. The Provider must notify the Customer within 7 days if it receives a request from a Data Subject for access to their Personal Data or to exercise any of their other rights under the Data Protection Legislation.
9.4. The Provider will give the Customer, at no additional cost to the Customer, its full co- operation and assistance in responding to any complaint, notice, communication or Data Subject request.
9.5. The Provider must not disclose the Personal Data to any Data Subject or to a third-party other than in accordance with the Customer's written instructions, or as required by domestic or EU law.
10. Term and termination
10.1. This Agreement will remain in full force and effect so long as: (a) the Terms remains in effect; or (b) the Provider retains any of the Personal Data related to the Terms in its possession or control (Term).
10.2. Any provision of this Agreement that expressly or by implication should come into or continue in force on or after termination of the Terms in order to protect the Personal Data will remain in full force and effect.
10.3. If a change in any Data Protection Legislation prevents either party from fulfilling all or part of obligations under the Terms, the parties may agree to suspend the processing of the Personal Data until that processing complies with the new requirements. If the parties are unable to bring the Personal Data processing into compliance with the Data Protection Legislation within 30 days, either party may terminate the Terms on not less than 7 working days on written notice to the other party.
11. Data return and destruction
11.1. At the Customer's request, the Provider will give the Customer, or a third-party nominated in writing by the Customer, a copy of or access to all or part of the Personal Data in its possession or control in the format and on the media reasonably specified by the Customer.
11.2. On termination of the Terms for any reason or expiry of its term, the Provider will securely delete or destroy or, if directed in writing by the Customer, return and not retain, all or any of the Personal Data related to this Agreement in its possession or control, except for one copy that it may retain and use for 365 days for archive purposes only.
11.3. If any law, regulation, or government or regulatory body requires the Provider to retain any documents, materials or Personal Data that the Provider would otherwise be required to return or destroy, it will notify the Customer in writing of that retention requirement, giving details of the documents, materials or Personal Data that it must retain, the legal basis for such retention, and establishing a specific timeline for deletion or destruction once the retention requirement ends.
11.4. The Provider will certify in writing to the Customer that it has deleted or destroyed the Personal Data within 7 days after it completes the deletion or destruction.
12. Records 12.1. The Provider will keep detailed, accurate and up-to-date written records regarding any processing of the Personal Data, including but not limited to, the access, control and security of the Personal Data, approved subcontractors, the processing purposes, categories of processing, and a general description of the technical and organisational security measures referred to in Clause 5.1 (Records).
12.2. The Provider will ensure that the Records are sufficient to enable the Customer to verify the Provider's compliance with its obligations under this Agreement and the Data Protection Legislation and the Provider will provide the Customer with copies of the Records upon request.
12.3. The Customer and the Provider must review the information listed in the Annexes to this Agreement at least once a year to confirm its current accuracy and update it when required to reflect current practices.
13. Warranties 13.1. The Provider warrants and represents that:
(a) its employees, are reliable and trustworthy and have received the required training on the Data Protection Legislation;
(b) it and anyone operating on its behalf will process the Personal Data in compliance with the Data Protection Legislation and other laws, enactments, regulations, orders, standards and other similar instruments;
(c) it has no reason to believe that the Data Protection Legislation prevents it from providing any of the Terms contracted services; and
(d) considering the current technology environment and implementation costs, it will take appropriate technical and organisational measures to prevent the accidental, unauthorised or unlawful processing of Personal Data and the loss or damage to, the Personal Data, and ensure a level of security appropriate to:
(i) the harm that might result from such accidental, unauthorised or unlawful processing and loss or damage;
(ii) the nature of the Personal Data protected; and
(iii) comply with all applicable Data Protection Legislation and its information and security policies, including the security measures required in Clause 5.1.
13.2. The Customer warrants and represents that the Provider's expected use of the Personal Data for the Business Purposes and as specifically instructed by the Customer will comply with the Data Protection Legislation.
14.1. The Provider agrees to indemnify, keep indemnified and defend at its own expense the Customer against all costs, claims, damages or expenses incurred by the Customer or for which the Customer may become liable due to any failure by the Provider or its employees, subcontractors or agents to comply with any of its obligations under this Agreement and/or the Data Protection Legislation.
14.2. Any limitation of liability set forth in the Terms will not apply to this Agreement's indemnity or reimbursement obligations.
15.1. Any legal notice given to a party under or in connection with this Agreement must be in writing and delivered to: For the Customer: To the Customer’s registered office. For the Provider: firstname.lastname@example.org
15.2. Clause 15.1 does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.