Effective starting: 9 August 2022
1.1 When your Commercial Schedule is fully executed (the Start Date), an agreement is formed between you and Ansarada.
1.3 To the extent of any inconsistency between the documents listed above, the following order of precedence will be applied:
(a) Commercial Schedule;
(c) Each applicable Product-specific Schedule;
(d) Security and Certifications Schedule.
2. Term and renewal
(a) the parties negotiate and agree to specific renewal terms; or
(b) either party notifies the other party of its decision not to renew this agreement no later than ninety (90) days before the expiration of a Product’s Initial Term or the then current Renewal Term,
the agreement will be automatically renewed in respect of that Product for a further 12-month period (each a Renewal Term), subject to the Pricing increase set out in clause 4.3.
2.3 When we refer to the Term, we’re referring to the Initial Term and each applicable Renewal Term.
3. Ansarada Services
3.1 We will use all reasonable commercial efforts to provide you with access to, and use of, the Products selected in your Commercial Schedule in a timely and professional manner. Our services include your access to, and use of, our websites, other applicable services and our solutions and platforms, as relevant to the Products selected in your Commercial Schedule (Ansarada Services).
3.2 You agree to provide us with any information reasonably necessary for the provision of the Ansarada Services, including, providing information and technology as necessary and appropriate.
3.3 You are responsible for your use of, or reliance on, any advice or recommendations provided by us in connection with the Ansarada Services, including but not limited to, the security and access settings that may be configured for the Ansarada Services.
4. Pricing and payment
4.1 When we refer to your Client, we are referring to your third party clients and customers on whose behalf you may be accessing and using the Ansarada Services and/or who are accessing the Ansarada Services directly as your Users in accordance with clause 8.
4.2 Pricing for the Products is set out in the Commercial Schedule. We will invoice you for the applicable Pricing for the Products selected in your Commercial Schedule in accordance with the Payment Terms, and you must pay each invoice within 30 days of the date of the invoice.
4.3 You may request that we invoice your Client directly for some or all of the applicable Pricing, which we may do in our discretion. Where we invoice your Client directly, you:
(a) warrant and represent that you have permission from your Client for us do so and that your Client is aware of their responsibility to make payment of such invoice; and
(b) must ensure that your Client pays each invoice within 30 days of the date of an invoice.
4.4 If we issue an invoice to your Client directly in accordance with the above, you are in no way released of any responsibility or liability in respect of payment of any Pricing under this agreement and you remain fully responsible and liable for any acts or omissions of your Client in respect of such payment (including their failure or delay to make such payment in whole or part) as if the acts or omissions were your own.
4.5 Pricing will be subject to the following increases and variations.
(a) Each Renewal Term, the Pricing will automatically increase by the same percentage as the applicable CPI of that year. Such increase will be automatically applied to the Pricing and invoice for the applicable Renewal Term.
(b) Any price variations negotiated and agreed between the parties, including in respect of Products added in accordance with clause 5. Such variations will be applied in accordance with terms agreed between the parties.
4.6 If you, or your Client, fail to pay any applicable Pricing or any other amounts owed to us under this agreement by the applicable due date, we may, in our discretion:
(a) suspend your Account(s) and/or suspend your (and your User’s) use of, and access to, the Ansarada Services until payment has been made; and/or
(b) charge interest on overdue amounts at the rate of 10% (or the highest rate permitted by law, if lower) per annum.
4.7 You agree that in the event we are unable to collect any fees owed to Ansarada by you or your Client under this agreement, we may take any other steps it deems necessary to collect such fees from you directly (even where an invoice was issued directly to your Client and you will be responsible for all costs and expenses incurred by us in connection with such collection activity, including collection fees, court costs and attorneys’ fees.
4.8 All Pricing is exclusive of any taxes, levies, duties, or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction (Taxes). You will be responsible for paying all Taxes associated with your purchases of the Ansarada Services, except for those Taxes based on our net income. Should any payment for the Ansarada Services be subject to withholding tax by any government, you will reimburse us for such withholding tax.
5. Adding Products during the Term
The parties may negotiate and agree to add Products to this agreement from time to time during the Term and in such instance Ansarada will issue you with an updated Commercial Schedule reflecting the addition of any such Product and any updated commercial details. Such added Products and updated Commercial Schedule will be incorporated into and form part of this agreement.
6.1 When we refer to Confidential Information, we mean confidential, proprietary and commercially-sensitive information (irrespective of the form or the manner in which the information is disclosed, or the time of such disclosure) including information which:
(a) is identified as confidential or ought to have been known to be confidential; and
(b) relates to the business affairs and practices, including financial information, business opportunities, business plans, business processes and methodologies,
but we do not mean information which is in, or comes into, the public domain other than by a breach of this agreement, or which is independently known to the other party as evidenced by its written record.
6.2 Each party makes the following commitment to the other party in respect of the other party’s Confidential Information. A party will not disclose the Confidential Information of the other party to any third party, except:
(a) for the purposes of providing, or using, the Ansarada Services and fulfilling any obligations under this agreement, including in the case of Ansarada allowing your Users to access Your Content as determined or instructed by you;
(b) where a party is required to do so under any law, code or regulation and/or any listing rules of any stock exchange (including US SEC rules), including disclosure to any third parties in order for them to comply with the same;
(c) to the party’s employees, subcontractors, representatives, or advisors on a need to know basis;
(d) with the other party’s consent; and/or
(e) if applicable, in the case of Ansarada, to our Authorised Sub-Processors as defined in the GDPR Data Processing Schedule.
6.3 We will have appropriate security measures in place that are designed to protect your Confidential Information against unauthorised access, disclosure or use, including as set out in our Security and Certifications Schedule.
7.1 When we refer to:
(a) personal information and/or personal data, we are referring to the meaning given to those terms in any applicable privacy laws; and
(b) privacy laws, we mean any law, code, and/or regulation applicable to a party and/or data, personal information and personal data captured under this agreement, including the Privacy Act 1988 (Cth) and the General Data Protection Regulation (EU) 2016/679 (GDPR).
7.2 Each party will comply with:
(a) all applicable privacy laws when collecting, handling, storing, disclosing, or otherwise using any personal information, including personal information about Users; and
(b) if applicable, the GDPR Data Processing Schedule where Ansarada processes personal data of data subjects that are located in the European Economic Area or where Ansarada processes personal data on your behalf where you are established in the European Economic Area (as such terms are defined in that Schedule).
7.3 You further acknowledge and agree that:
8. Usage, Account(s) and Users
8.1 When we refer to:
(a) Account(s), we mean any account(s) set up by you or us through which you and your Users access and use the Ansarada Services;
(b) Usage we mean the Usage details set out in your Commercial Schedule in respect of each Product;
(c) Users, we mean your employees, agents, contractors, service providers (including advisors and consultants), your Clients and any other persons, entities or other third parties who are authorised, enabled orinstructed by you to access and use Ansarada Services on your behalf, whether or not they have been supplied with a user email address and password by you, or us at your request; and
(d) Your Content, we mean all information, data, materials, images, audiovisual material, logos, documents and other content that you provide to us and/or input into a Product.
8.2 You must only use the Products in accordance with the Usage set out in your Commercial Schedule.
8.3 You are solely responsible for:
(a) determining your Users and any use of the Ansarada Services by Users;
(b) all activity on the Account(s), including by you and/or or any Users and/or any unauthorised access by third parties;
(c) maintaining the confidentiality and security of the Account(s), including any login and password information, and notifying Ansarada immediately of any unauthorised use;
(d) using all reasonable endeavours to prevent any unauthorised access to or use of the Ansarada Services; and
(e) without limiting our security obligations under this agreement, protecting Your Content, including backing-up, and ensuring the security of, the Your Content, and taking appropriate measures to protect Your Content from accidental, unlawful or unauthorised access, use or disclosure.
8.4 You will contact us immediately if you believe an unauthorised third party:
(a) may be using or accessing the Account(s); or
(b) if the Account(s) information, including any login or password information is lost or stolen.
8.5 You are solely responsible for:
(a) Your Content, including determining what of Your Content you provide to us and/or give User’s access to;
(b) the integrity, accuracy, quality and completeness any of Your Content and the means by which your acquire Your Content, and you acknowledge that all outputs of the Ansarada Services rely on this; and
(c) ensuring that your Users access and use the Ansarada Services in accordance with this agreement, including but not limited to only using the Product in accordance with the applicable Usage set out in the Commercial Schedule and using all Ansarada Services in compliance with our acceptable use conditions set out in clause 10.
9. Third party providers and linked sites
9.1 Some aspects of the Ansarada Services (including our Products) are provided by third parties (Third Party Suppliers), such as the hosting, cloud computing services and software as a service services, other services and analytics (Third Party Products) and you consent to our use of such Third Party Suppliers and Third Party Products.
9.2 You acknowledge and agree that:
(a) your use of, and access to, the Third Party Products may be subject to additional fees and separate terms issued by the Third Party Supplier, which will form a separate agreement between you and the relevant Third Party Supplier;
(b) we make no representations or warranties in relation to, and does not accept liability for, any Third Party Products; and
(c) we may suspend your use of, or access to, the Third Party Products at any time, including on request from the Third Party Supplier of such Third Party Products.
9.3 To the extent permitted by law, you agree not to pursue or make any claim against any of our Third Party Suppliers in connection with the Ansarada Services.
9.4 The Ansarada Services may contain links to third-party websites, products, and services.
9.5 We do not make any representations or warranties in relation to, and we exclude all liability from, third party websites, products and services, including the Third Party Products.
10. Acceptable Use
(a) solely for the purposes set out in this agreement;
(b) in a manner that does not attempt to circumvent the agreed commercial arrangements, including Pricing, set out under this agreement;
(c) acting in good faith, giving consideration to the commercial intent of the parties; and
(d) in accordance with this acceptable use clause.
10.2 Your access to, and use of, any Ansarada Services must not violate any applicable laws, codes or regulations, including but not limited to intellectual property laws, data protection and privacy laws and export control laws.
10.3 You must ensure that your access to, and use of, any Ansarada Services complies with all applicable laws and regulations in your jurisdiction.
10.4 When using the Ansarada Services, you agree that you will only upload, post, host, store, communicate or display content (including Your Content) that:
(a) you have all consents and rights required under law and under any applicable contracts to upload, post, host, store, communicate and display (for instance, rights of ownership or a sufficiently broad licence to do so);
(b) does not infringe the rights, including privacy and Intellectual Property Rights of any other person;
(c) is not unlawful, does not give rise to any civil or criminal liability for you or us, and does not encourage any activity that may violate any applicable law or contract;
(d) is not fraudulent and does not constitute a fraudulent misrepresentation or promote fraudulent activity;
(e) is not and does not contain offensive, abusive or sexually obscene content;
(f) is not libellous, defamatory, discriminatory in respect of any individual or group, unsolicited, unwanted or harassing;
(g) is not a mass email or other commercial message, promotion, offer, advertisement, or solicitation (also known as “spam”); and
(h) does not contain viruses, malware, trojan horses, worms, or any other malicious or harmful program or code.
10.5 You agree that you will not:
(a) use Ansarada Services for any purpose other than their intended purposes;
(b) access, use, alter or interfere with any areas of the Ansarada Services that you are not authorised to access;
(c) check or test the vulnerability of any of our systems or networks or breach or circumvent any security or authentication mechanism;
(d) copy, caches, disassemble, decompile, reverse-engineer or modify any component of the Ansarada Services, or use any automated means to collect information from the Ansarada Services;
(e) do anything that would prejudice our rights, title or interest in and to the Ansarada Services;
(f) transfer, sell, lease, distribute, or sublicense any part of the Ansarada Services or the content contained within or hosted on the Ansarada Services;
(g) attempt to destabilise, interrupt or overload our infrastructure by placing unreasonable burdens on our resources, including by sending requests to our systems more rapidly than could be achieved by a human user;
(h) engage in any other conduct that inhibits any other person from using or enjoying the Ansarada Services;
(i) use or access the Ansarada Services in any manner that:
(i) creates a risk to the integrity of the Ansarada Services or the network, systems, equipment or facilities used in connection with the Ansarada Services;
(ii) effects the quality of any service we provide; and
(iii) in an excessive manner including but not limited to excessive use or storage of data which is to be judged by us in our sole discretion;
(j) misuse the Ansarada Services by tampering with their normal operation, or trying to access them using a method or interface other than those we provide;
(k) transmit any viruses, malware, trojan horses, worms, or other types of malicious or harmful software or code, or links to such software or code, onto or through the Ansarada Services;
(l) impersonate another person or organisation, including any of our employees, or misrepresent your identity;
(m) reproduce, communicate, adapt, record, transfer, publish, perform, display, broadcast, distribute, offer or make available any of the content contained within or hosted on the Ansarada Services in contravention of any applicable law or in breach of any person’s rights, including Intellectual Property Rights;
(n) remove or amend any intellectual property notices contained in or displayed on the Ansarada Services;
(o) use another person’s login details for the Ansarada Services without their permission; or
(p) breach another person’s privacy, for example by posting their personal information without first obtaining their consent or having another lawful ground(s) to do so.
10.6 You must not use conduct or attempt to conduct web scraping of any part of our websites and/or the other Ansarada Services, including any content contained within or hosted on the Ansarada Services.
10.7 If you fail to comply with the acceptable uses set out in this clause, we reserve the right to immediately suspend your Account(s) and/or your access to the Ansarada Services, without liability for us (to the extent permitted by law). We are also entitled to immediately remove any content you upload, post, host or transmit that we consider or suspect to be in breach of this clause or any of our other terms and conditions, without prior notice to you and without liability for us (to the extent permitted by law).
10.8 Our rights to suspend your Account(s) and to remove content do not limit any other rights or remedies that may be available to us under this agreement.
11. Intellectual Property and marketing
11.1 When we refer to:
(a) Intellectual Property Rights, we mean all present and future rights conferred by statute, common law or equity in or in relation to any copyright, trade marks, designs, patents, circuit layouts, plant varieties, business and domain names, confidential information, inventions and other results of intellectual activity in the industrial, commercial, scientific, literary or artistic fields whether or not registered, registrable or patentable;
(b) Resulting Data, we mean any data or information arising from use by any person of any Ansarada Services or Works, in anonymised or aggregated form and not including any of Your Content or personal information or personal data; and
(c) Works means all works, software, code, algorithms, documents, concepts, designs, systems and processes created, developed, programmed, invented or derived by Ansarada (including its related entities or the employees, contractors, consultants and whether alone or in concert with others) or its licensors or in which any of those persons has any right, title or interest comprised in the Ansarada Services.
11.2 You acknowledge and agree that Ansarada owns all rights (including Intellectual Property Rights), title and interests in and to:
(a) the Ansarada Services (including the Products), any Works, and Resulting Data (including any source code, translations, compilations, partial copies and derivative works);
(b) any accompanying materials or documentation, including that are created by and/or for you and/or your Users in connection with the use of any Ansarada Services; and
(c) and/or any variations, modifications, adaptations, developments and/or derivatives of any of the Ansarada Services, Works and/or any accompanying materials or documentation,
but excluding Your Content (Our IP).
11.3 Your own all Intellectual Property Rights in Your Content and you are solely responsible for the integrity, accuracy and quality of Your Content and how you acquire Your Content.
11.4 We grant to you a non-exclusive, non-transferable, revocable licence to access and use the Ansarada Services solely to the extent permitted by this agreement and as is necessary to obtain the benefit of the Ansarada Services for the duration of the Term. Any rights not expressly granted under this agreement are reserved by Ansarada.
11.5 You acknowledge and agree that we may use and incorporate any ideas, suggestions, concepts, know-how or techniques contained in information received from you that directly relates to your products or business, including any suggested changes or modification to the Ansarada Services.
11.6 You grant to us:
(a) a royalty-free, non-exclusive licence during the Term (subject to clause 11.7) to use Your Content to the extent necessary to provide the Ansarada Services and to fulfil our obligations under this agreement; and
(b) a non-exclusive, worldwide, royalty free, assignable, perpetual and irrevocable licence to copy, use and analyse Your Content for any purpose, including to create any Resulting Data, for Ansarada’s business purposes and for benchmarking and analytics purposes to improve and understand product usage and customer needs, provided such output and analyses will not contain any of your Confidential Information, information that identifies you, and/or any personal information or personal data.
11.7 Following the expiry or termination of this agreement, we reserve the right to retain a copy of Your Content in accordance with our archival policy which may be provided to you on request.
11.8 You consent to us using your company name and logo:
(a) and to describe the circumstances of your use of the Ansarada Services, on an ongoing and irrevocable basis, where we are required to do so under any law, code or regulation and/or any listing rules of any stock exchange (including US SEC rules); and
(b) as a reference for marketing or promotional purposes on our website and in other public or private communications with our existing or potential customers.
12. Scheduled maintenance
12.1 We reserve the right to carry out maintenance of our Ansarada Services (Maintenance). We will use reasonable endeavours to, where possible:
(a) undertake such Maintenance outside of normal business hours;
(b) notify you in advance of any such Maintenance; and
(c) minimise disruption to your use of the Services due to such Maintenance.
13.1 We may (either by itself or through its authorised representative) periodically conduct an audit to:
(a) verify that your access and use of any Ansarada Services is in accordance with this agreement, including all commercial terms (including Usage); and
(b) assess your compliance with this agreement.
13.2 You must participate in and co-operate with any audit carried out under clause 13.1 in good faith, including by providing us with such access to your systems, records, and personnel as is required for the purposes of the audit (provided that we give your reasonable written notice).
13.3 We and our authorised representatives may take copies of your records and books as are reasonably required for the purposes of carrying out the audit. Those copies will be your Confidential Information.
13.4 If an audit reveals:
(a) use by you of any Ansarada Services that is not in accordance with this agreement, including all commercial terms (including Usage); or
(b) any breach of this agreement by you,
you will immediately rectify your use or breach (including at our reasonable direction) and you must also pay, or reimburse us for, all costs and expenses relating to that audit (including accountancy or legal fees and/or unpaid Pricing owed to us by you by way of such breach (for example, your use of the Ansarada Services in excess of any Usage)).
13.5 Except as set out in clause 13.4, we will bear our own costs and expenses in carrying out an audit.
14.1 Either party may terminate this agreement (either in full, or in part in respect of specific Ansarada Services) on written notice before the expiration of the Term where any of the following events occurs.
(a) The other party materially breaches any of the terms of this agreement and the breach is not capable of remedy.
(b) The other party materially breaches any of the terms of this agreement and does not remedy the breach within 30 days of receiving written notice of the breach.
(c) If the other party ceases to operate, becomes insolvent, enters liquidation, file for bankruptcy, makes an assignment for the benefit of creditors, appoints a receiver, or is subject to any similar action.
14.2 Where this agreement is only terminated in part in respect of specific Ansarada Services, the agreement will continue in full force and effect in respect of all other Ansarada Services.
15. Effect of termination
15.1 On termination of this agreement by either party (in whole or in part), subject to any terms of this agreement that permits otherwise:
(a) each party must, on request, return or securely destroy all Confidential Information in that party’s control; and
(b) you will no longer have any right to use, copy or access (or to permit any other person to use, copy or access) any of the Ansarada Services or Works (in whole or in part), or any other information or materials that we make available to you under this agreement, including our Confidential Information.
15.2 On termination of this agreement by us accordance with clause 14.1 (in whole or in part), you will pay any unpaid fees covering the remainder of the Term for the applicable Product(s) after the effective date of termination.
15.3 The exercise by either party of any remedy, including termination, will be without prejudice to any other remedies it may have under this agreement, by law, or otherwise.
16.1 Each party represents and warrants to the other that, to the best of its knowledge, each of the following statements is true, accurate and not misleading as at the date of this agreement and will be true and accurate on each day during the Term:
(a) it has the corporate power to enter into and perform its obligations under this agreement and to carry out the transactions contemplated by this agreement; and
(b) there are no pre-existing rights or obligations which would prevent it from complying with its obligations under this agreement.
16.2 We further warrant and represent as follows, to the best of our knowledge.
(a) That the Ansarada Services, as provided by us and used in accordance with this agreement and our instructions and policies, do not, or will not, infringe the Intellectual Property Rights of any third party. This warranty does not apply to any of Your Content, including without limitation where it is uploaded to or hosted on the Ansarada Services.
(b) We will provide the Ansarada Services:
(i) due care and skill; and
(ii) in accordance with all applicable laws, codes and regulations.
16.3 You further warrant and represent as follows.
(a) Your Content does not, or will not, infringe the rights (including privacy and Intellectual Property Rights) of any third party.
(b) In using the Ansarada Services, you will comply with all applicable laws, codes and regulations.
(c) Where you collect, or handle, personal information or personal data, which is made available to us under this agreement, including where it is input into any Ansarada Services, that you have collected all necessary consents to do so and that you have done so in accordance with all applicable privacy laws, codes and obligations.
16.4 Subject to any express warranties in this agreement but otherwise to the fullest extent permitted by law:
(a) we exclude all warranties, conditions and representations in whatever form, relating to the Ansarada Services, including any warranties or representations relating to quality, accuracy, integration, merchantability, conformity with specifications, reliability, functionality, performance, fitness for use or the security and operation of the Ansarada Services, including that the Ansarada Services will produce any particular outcomes for the Customer and/or that it will be bug or error free; and
(b) that no advice or information, whether oral or written, obtained by you from us or through or from the Ansarada Services or under this agreement shall create any warranty not expressly stated in this agreement that no accounting, financial or legal advice or counsel is given or shall be deemed to have been given by the Ansarada Services or under this agreement in any manner.
17.1 When we refer to Loss, we mean any judgment, debt, damage, loss, cost, expense or liability howsoever arising and whether present or future, fixed or unascertained, actual or contingent whether at law, in equity, or otherwise.
17.2 You indemnify Ansarada and our directors, officers, employees, affiliates, agents, contractors, principals, or licensors (our indemnified parties) from and against any Loss suffered or incurred by our indemnified parties as an indirect or direct result of:
(a) any breach of your obligations (by you or your Users) under any of the following clauses of the agreement:
(i) clause 6 (Confidentiality);
(ii) clause 7 (Privacy);
(iii) clause 10 (Acceptable Use)
(iv) clause 11 (Intellectual property Rights); and/or
(v) clauses 16.1 and 16.2 (Warranties).
(b) our provision of access to Your Content as determined or instructed by you;
(c) Your Content, including but not limited to any third party claims alleging that Your Content or our use, handling or processing of Your Content infringes any rights, including privacy and/or Intellectual Property Rights, of a third party;
(d) your (or your Users’) negligent or fraudulent acts or omissions; and/or
(e) any of our acts or omissions in reliance on false, misleading or incomplete information that you have provided to us.
17.3 We indemnify you and your directors, officers, employees, affiliates, agents, contractors, principals, or licensors (your indemnified parties) from and against any Loss suffered or incurred by your indemnified parties as an indirect or direct result of:
(a) any third party claim that the Ansarada Services (excluding Your Content, but including Our IP) as provided and used in accordance with this agreement, our instructions and our policies infringes the Intellectual Property Rights of a third party;
(b) any breach by us of:
(i) clause 6 (Confidentiality);
(ii) clause 7 (Privacy);
(iii) clause 11 (Intellectual property Rights);
(iv) clauses 16.1 and 16.2 (Warranties); and/or
(v) our obligations set out in the Security and Certifications Schedule; and
(c) any loss, or corruption, of Your Content; and/or
(d) our negligent or fraudulent acts or omissions,
17.4 A party’s liability under this agreement will be reduced proportionately to the extent that any such Loss arose as a result of the other party’s act or omission (in your case, including any act or omission of your Users).
17.5 Where a party seeks to rely on an indemnity under this agreement, that party must make reasonable endeavours to mitigate its Loss.
18.1 When we refer to:
(a) Consequential Loss, we mean any Loss that does not arise naturally in the ordinary course of things from the event or circumstance giving rise to the Loss; and
(b) Consumer Law, we mean the provisions of Schedule 2 to the Competition and Consumer Act 2010 (Cth), as applied under Part XI or under a law of a State or Territory of Australia, or any similar laws which may apply to this agreement.
18.2 The following provisions only apply to the maximum extent permitted by applicable law. We accept liability that is imposed by applicable law and cannot be limited or excluded, which may include without limitation statutory liability for personal injury or death caused by negligence.
18.3 If any supply by Ansarada pursuant to this agreement comprises a supply to a ‘consumer’ as defined in the Consumer Law, then nothing contained in this agreement restricts or modifies guarantee, right or remedy which pursuant to the Consumer Law applies to this agreement or is conferred on you, provided that to the extent that the Consumer Law permits Ansarada to limit its liability for breach of guarantee imposed by the Consumer Law, then to the extent permitted by the Consumer Law, Ansarada’s liability for such breach is limited to:
(a) in the case of goods, any one or more of the following acts as determined by Ansarada:
(i) the replacement of the goods or the supply of equivalent goods; or
(ii) the repair of the goods; or
(iii) payment of the cost of replacing the goods or acquiring equivalent goods; or
(iv) the payment of reasonable costs of having the goods repaired; or
(b) in the case of services any cost of the following as determined by Ansarada:
(i) the supplying of the services again; or
(ii) the payment of the cost of having the services supplied again.
18.4 To the extent permitted by law:
(a) all express or implied guarantees, warranties, representations, or other terms and conditions relating to the agreement or its subject matter, not contained in the agreement, are excluded from the agreement;
(b) our maximum aggregate liability in connection with the agreement or its subject matter, is limited to an amount equal to the following amounts:
(i) in respect of our liability and indemnity under clause 17.3 – 2 x the amounts paid and payable by you under the agreement in the 12 months preceding any claims for the applicable liablity; and
(ii) for all other liability under this agreement, excluding claims for our liability and indemnity under clause 17.3 – the amounts paid and payable by you under the agreement in the 12 months preceding any claims; and
(c) we, and our directors, officers, employees and representatives will not be liable to you (including whether such liability is based on breach of contract, tort (including negligence), statute or otherwise) for any Consequential Loss, including special, indirect, incidental or punitive Losses or damages, whether or not such Losses or damages were foreseeable and even if advised of the possibility of the Losses or damages.
18.5 We are not liable for any improper access, copying or corruption of information before it enters or once it leaves our systems.
18.6 We are not responsible for delays, disruptions or other faults in the Ansarada Services or Works caused by factors beyond our reasonable control, including but not limited to problems with the public internet or your computer systems, the acts and omissions of third parties, and/or Force Majeure Events. We are not responsible for any damage to any of your equipment or software resulting from your use of the Ansarada Services or Works.
18.7 Some of the Ansarada Services or Works may provide recommendations, comments and prompts, including but not limited to predictive insights or statistical analysis. These will not take account of your particular objectives or circumstances and are not a substitute for legal, accounting or other professional advice. You should determine independently or, with the aid of appropriate professional advice, whether and how to proceed with any recommendations, comments or prompts provided to you.
18.8 Where a search function is enabled in the Ansarada Services, we cannot guarantee that the results provided by that function are complete or accurate since the search results are affected by the formatting of the information in the Ansarada Services and the search criteria specified by Your Users.
19. Force majeure
19.1 When we refer to a Force Majeure Event, we mean any act, event or cause including earthquakes, cyclones, floods, fires, lightening, storms or other acts of God, strikes or industrial disputes, riots, terrorist acts, civil disturbances, breakages of machinery, or industrial conditions, or arising out of any other unexpected and exceptional cause, delays in transportation and dispositions or orders of governmental authority, which:
(a) directly or indirectly results in a party being prevented from or delayed in performing any of its obligations under this agreement; and
(b) is beyond the reasonable control of that party.
19.2 If a Force Majeure Event occurs, the affected party must notify the other party and the obligations of the party will be suspended (except any obligations to make any payments under this agreement) to the extent that they are affected by the relevant Force Majeure Event until that Force Majeure Event has ceased.
20.1 Subject to clause 20.2, we reserve the right to, on written notice to you, vary a Schedule where such variation is required to reflect our updated business practices and/or any change in any applicable law, code and/or regulation. Such variation will take effect within 5 days from the date that we notify you.
21. Dispute resolution
21.1 Any party who claims to have a dispute against another party must issue a notice to the other party claiming a dispute has arisen, setting out the nature of the dispute and all other information relevant to the dispute (Dispute Notice).
21.2 Within 7 days after receiving the Dispute Notice, the parties must meet (or otherwise communicate) to resolve the dispute. Each party will be represented by a person having authority to agree to such resolution or methods. All aspects of the meetings will be confidential and without prejudice to the parties’ rights, obligations and liabilities.
21.3 If the parties do not resolve the dispute within 30 days (or such longer period the parties may agree in writing) after the Dispute Notice, then either party may initiate court proceedings in relation to the dispute.
21.4 Despite the existence of a dispute, each party must continue to perform its obligations under the agreement unless those obligations are the subject of the dispute.
22.1 Nothing in this agreement will be taken as giving rise to a relationship of employment, agency, partnership or joint venture. Except as otherwise provided in this agreement, the parties acknowledge and agree that neither party will have any authority to bind the other party or to enter into an agreement in the name of the other party.
22.2 We may sub-contract the performance of any part of our obligations and/or services to any third party.
22.3 This agreement contains the entire understanding between the parties concerning the subject matter of the agreement and supersedes all prior communications.
22.4 The failure of either party to enforce any provisions under this agreement will not waive the right of such party thereafter to enforce any such provisions.
22.5 If any term or provision of this agreement is held by a court to be illegal, invalid or unenforceable under the applicable law, that term or provision will be severed from this agreement and the remaining terms and conditions will be unaffected.
22.6 This agreement may be executed in any number of counterparts and all counterparts taken together will constitute one document.
22.7 Each party agrees that this agreement may be electronically signed, and that any electronic signatures appearing on this agreement are the same as handwritten signatures for the purposes of validity, enforceability, and admissibility.
22.8 Neither party may assign, transfer or otherwise deal with this agreement or any right under this agreement without the prior written consent of the other party, which must not be unreasonably withheld, unless in our case, such assignment is to a Related Body Corporate (as defined in the Corporation Act 2001 (Cth)) in which case we can effect such assignment without your consent.
22.9 We agree not to use your company name and/or logo as a referencing for marketing or promotional purposes on our website, other electronic media, and in any public or private communications with our existing or potential customers, unless you give us express written permission to do so.
22.10 Any warranty, indemnity, or obligation of confidentiality in this agreement will survive termination. Any other term which by its nature is intended to survive termination of this agreement survives termination of this agreement.
22.11 This agreement is governed by, and construed in accordance with, the laws of New South Wales, Australia. The parties agree to submit to the non-exclusive jurisdiction of the courts of New South Wales.
This Security and Certifications Schedule sets out our security and compliance processes, along with our relevant certifications, that applies to your Confidential Information and any personal information or personal data that we host, store or have access to under this agreement.
1. Security & compliance at Ansarada
1.1 We maintain ISO 27001 certification; the gold standard for information security management.
1.2 We have a documented process for escalation and reporting of breaches and continue to invest, improve and report these, in line with our ISO 27001 certification requirements.
2. Secure data management
2.1 Ansarada data is hosted on the Amazon Web Services (AWS) platform, whose infrastructure guarantees the following data security:
(a) all data is stored and encrypted at rest with 256-bit encryption;
(b) file level encryption with information rights management policies to track, expire and prevent printing of documents;
(c) virtual elimination of risks from Trojan viruses, worms, and application vulnerabilities
(d) all data uploaded into a data room is encrypted through HTTPS/SSL;
(e) the Ansarada platform is multi-tenant guaranteeing data segregation that ensures privacy;
(f) 99.98% system availability.
2.2 AWS has the following information security certifications to ensure information stored by Ansarada is fully secure.
(a) SOC 1/SSAE 3402
(c) SOC 3
(d) FISMA, DIACAP, FedRAMP
(e) PCI DSS Level 1
(f) ISO 27001
(h) FIPS 140-2
2.3 In addition, Ansarada supports single sign on and multi-factor authentication.
This Schedule shall apply where Ansarada processes personal data of data subjects that are located in the European Economic Area (the “EEA”), or the United Kingdom, or where Ansarada processes personal data on your behalf where you are established in the EEA or the United Kingdom and shall take priority over any other provision of this Agreement to the extent of any conflict or inconsistency between this Schedule and any other provision of this Agreement.
2. Relationship of the Parties
2.1 Each Party shall comply with its obligations under this Schedule and under Data Protection Law with respect to the types of personal data it processes and according to its responsibilities as a controller or processor (as appropriate) for the relevant personal data.
2.2 Without limiting clause 2.1, the Parties agree that:
(a) Ansarada shall be a controller with respect to the processing of CRM Data, User Data, and of Content Data (but the latter only to the extent it is processed to comply with its own obligations underApplicable Law); and
(b) you shall be the controller of and Ansarada shall be a processor of Content Data (unless (i) Ansarada is processing Content Data to comply with its own obligations under Applicable Law, or (ii) unless you are acting as a processor of Content Data on behalf of a third party, in which case you shall be a processor and Ansarada shall be sub-processor of the Content Data, but for the purposes of this Schedule you shall be treated as a controller and Ansarada shall be treated as a processor).
3. Controller obligations
3.1 Whenever a Party is acting in a capacity as a controller in relation to personal data, it shall comply in all respects with Data Protection Law in respect of such personal data, including:
(a) by processing personal data fairly and lawfully;
(b) by implementing appropriate technical and organisational measures to protect the personal data against Data Security Incidents;
(c) by obtaining any consents required for its processing of personal data, particularly where sensitive personal data or special categories of personal data are processed; and
(d) by complying with its obligations with respect to data subject rights in relation to the personal data.
3.2 As the controller with respect to Content Data, you accept full responsibility for obtaining all consents necessary for, and otherwise for having lawfully grounds to process, Content Data that is processed in connection with Ansarada’s performance of the Ansarada Services.
4. Processor obligations
Where Ansarada is processing personal data on your behalf, whether as a processor or sub-processor, but not as a controller or joint controller, the following provisions shall apply:
4.1 Purpose limitation
Ansarada shall process the personal data as necessary to perform its obligations under this Agreement (the “Permitted Purpose”). In no event shall Ansarada process the personal data for its own purposes or those of any third party.
4.2 Documented instructions
Ansarada shall process the personal data only on documented instructions from you, which may include the instructions set out in this Agreement, and shall immediately inform you if, in its opinion, an instruction infringes Data Protection Law, unless prohibited from doing so by Applicable Law.
4.3 Categories of personal data
The Parties agree that this Agreement sets out the categories of personal data, including Content Data, that are processed in connection with this Agreement. It is the controller’s responsibility to determine if any further details of Ansarada’s processing of such personal data need to be recorded in this Agreement to comply with Data Protection Law and Ansarada shall act in good faith to cooperate with any reasonable request to do so.
4.4 Confidentiality of processing
Ansarada shall ensure that any person that it authorises to process the personal data (including Ansarada’s staff, agents and sub-processors) (each an “Authorised Person”) shall be under an obligation (whether under contract or statute) to keep the personal data confidential.
Ansarada shall implement appropriate technical and organisational measures to protect the personal data from Data Security Incidents. Such measures shall have regard to the state of the art, the costs of implementation and the nature, scope, context and purposes of processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons.
Ansarada shall be authorised to engage third parties to process personal data on behalf of the controller, provided that it notifies you of such engagement (each, an “Authorised Sub-Processor”). A list of Authorised Sub-Processors can be found at https://www.ansarada.com/subprocessors. Ansarada may change and update this list from time to time and you should check it regularly. You are given notice of all Authorised Sub-Processors on this list. This Agreement is a general written authorisation by the you to allow Ansarada to use the Authorised Sub-Processors to process personal data. Ansarada will ensure that there is in place a written contract between Ansarada and each Authorised Sub-Processor that specifies the Authorised Sub-Processor’s processing activities and imposes on the Authorised Sub-Processor equivalent terms as those imposed on Ansarada in this clause 4 (in the case of clause 4.12 subject to the provisions relating to Authorised Sub-Processors set out in that clause). Ansarada will remain responsible for the acts and omissions of Authorised Sub-Processors in respect of their processing of personal data as if they were its own. Where Ansarada is instructed by you to grant access to personal data to a third party who is contracted to you (a “Contracted Third Party”), the Contracted Third Party shall not be a sub-processor of Ansarada for the purposes of this clause 4.6 and you shall have sole responsibility for putting in place an appropriate data processing agreement with the Contracted Third Party that complies with Data Protection Law.
(a) Ansarada shall:
(i) taking into account the nature of the processing, assist you by appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of the controller’s obligation to respond to requests for exercising data subjects’ rights, provided that Ansarada shall not be required to comply with any requests to access, amend, update, erase or restrict processing of any Content Data to the extent that you can access, amend, update, erase or restrict the processing of the Content Data using the functionality and settings made available in connection with the Ansarada Services;
(ii) assist the controller in implementing appropriate technical and organisational measures against Data Security Incidents, completing data protection impact assessments and notifying Data Security Incidents to the competent supervisory authority or to the data subjects concerned, as required by Data Protection Law and taking into account the nature of the processing and the information available to Ansarada.
(b) If compliance with this clause 4.7 or provisions referencing this clause 4.7 requires: (i) a change to the Ansarada Services, (ii) a change to this Agreement, or (iii) the expenditure of material effort or cost that is not provided in this Agreement, then either Party may raise this in accordance with the change control procedure or, in the absence of any such change control procedure, by discussing the same in good faith. For avoidance of doubt, Ansarada shall not be required to provide any assistance under this clause 4.7 that would result in any change or expenditure referred to in paragraph (i) to (iii) of this clause 4.7, except if and to the extent that a suitable change is agreed to this Agreement.
4.8 Data protection impact assessments
If Ansarada believes or becomes aware that its processing of personal data is likely to result in a high risk to the data protection rights and freedoms of data subjects, we shall inform you and provide you with assistance to conduct a data protection impact assessment in accordance with clause 4.7.
4.9 Data Security Incidents
(a) Upon becoming aware of a Data Security Incident, Ansarada shall inform you without undue delay and shall provide such timely information and assistance in accordance with clause 4.7 as you may reasonably require in order to fulfil your data breach reporting obligations under Data Protection Law and to mitigate the effects of the Data Security Incident.
(b) You understand and accept that the performance by Ansarada of certain Ansarada Services may carry a risk to you of loss or corruption of data. Ansarada’s obligations in respect of data backup or retention shall be set out in the Agreement. You understand and accept that, save to the extent of any obligations detailed in this Agreement, you shall bear full responsibility for the loss or corruption of data that may result from a Data Security Incident.
4.10 Subject access requests
Ansarada shall promptly notify you if it receives a request from a data subject to exercise their rights in respect of their personal data and shall provide such assistance to you as may be required in accordance with clause 4.7. Ansarada shall be entitled to render such charges or recover such costs associated with destroying or returning personal data to the controller or joint controller (as appropriate) as provided in this Agreement or, if no such charges or costs are provided in this Agreement, such reasonable costs that Ansarada can evidence.
4.11 Deletion or return of personal data
Upon termination or expiry of this Agreement, Ansarada shall (at the other Party’s election) destroy or return to the other Party all personal data (including all copies of the personal data) in its possession or control (including any personal data that is processed by an Authorised Sub-Processor) or alternatively make such facilities available to you using the functionality or settings for the Ansarada Services to enable you to delete the personal data in question. This requirement shall not apply to the extent that Ansarada is required by any Applicable Law to retain some or all of the personal data, in which event Ansarada shall isolate and protect the personal data from any further processing except to the extent required by such Applicable Law. Ansarada shall be entitled to render such charges or recover such costs associated with destroying or returning personal data to the controller or joint controller (as appropriate) as provided in the Agreement or, if no such charges or costs are provided in the Agreement, such reasonable costs that Ansarada can evidence.
4.12 Information and audit
Ansarada shall make available to you all information necessary to demonstrate compliance with the obligations set out in this clause 4 and allow for and contribute to audits, including inspections, conducted by the controller or another auditor mandated by the controller, except if and to the extent that providing such information or permitting such an audit would place Ansarada in breach of Applicable Law or cause it to infringe the rights (including rights in intellectual property or confidential information) of any of Ansarada’s other customers. No more than one audit may be carried out in any calendar year, except if and when required by instruction of a competent data protection authority. Ansarada shall be entitled to recover its costs of complying with this clause 4.12. Where Ansarada has appointed a third party auditor to assess any of its technical or organisational measures to protect against Data Security Incidents for the purposes of any industry certification or otherwise (such as ISO 27001 compliance), Ansarada may share a copy of the auditor’s certificate and an executive summary of its findings, in lieu of providing other information or allowing for other audits by the controller or another auditor under this clause 4.12. Ansarada shall not be required to comply with any requests for Content Data to the extent that such Content Data can be accessed using the Ansarada Services or the functionality or settings made available by Ansarada. The provision of audit rights in relation to any Authorised Sub-Processor shall be limited to the standard audit provisions offered by that Authorised Sub-Processor.
5. International transfers
5.1 The Parties acknowledge that Ansarada is located in a territory outside of the EEA and the United Kingdom that is not an Adequate Territory under the GDPR or the UK GDPR. Any personal data transfer from the EEA to a location outside the EEA in a country or territory that is not an Adequate Territory, shall be subject to the Model Clauses (Module I: Controller to Controller when Ansarada is controller, and Module II: Controller to Processor when Ansarada is processor). Any personal data transfer from the UK to a location outside the UK in a country or territory that is not an Adequate Territory, shall be subject to the Model Clauses as amended by the UK International Data Transfer Addendum. For the purposes of the Model Clauses, the Parties acknowledge and agree as follows:
(a) you will be the data exporter and will be deemed to have entered into the Model Clauses in its own name and on its own behalf in relation to the personal data disclosed to Ansarada;
(b) Ansarada will be deemed to have entered into the Model Clauses in its own name and on its own behalf in relation to the personal data disclosed to it by you (and shall also be deemed to have entered into the Model Clauses on behalf of any related entities in its corporate group that are also located in a territory outside of the EEA and the UK that is not an Adequate Territory);
(c) the descriptions of the categories of personal data that are transferred in this Agreement shall be incorporated based on the definitions in this Agreement (that is, CRM Data, User Data and Content Data, as appropriate);
(d) the provisions of any technical and organisational security measures agreed in the Agreement will be deemed to be set out in Appendix 2 to the Model Clauses;
(e) the Parties have agreed to delete optional clauses 7 and 11 (a) second para. of the Model Clauses;
(f) the Parties have agreed to choose option 2 under clause 9 of the (controller to processor) Model Clauses, it being understood that Ansarada shall specifically inform you in writing of any intended changes to that list through the addition or replacement of sub-processors at least five days in advance, thereby giving the data exporter sufficient time to be able to object to such changes prior to the engagement of the sub-processor(s);
(g) where and to the extent that the Model Clauses apply pursuant to this clause 5, if there is any conflict between this Agreement and the Model Clauses, the Model Clauses will prevail.
5.2 Where Ansarada is acting as a processor, it shall not permit any onward transfer of personal data to a third country located outside the EEA or the UK (other than the place in which Ansarada is established) unless:
(a) Ansarada first puts in place adequate transfer mechanisms to ensure the transfer is in compliance with Data Protection Law;
(b) Ansarada or the relevant Authorised Sub-Processor is required to transfer the personal data to comply with Applicable Law, in which case Ansarada will notify you of such legal requirement prior to such transfer unless such Applicable Law prohibits such notice from being given to you;
(c) Ansarada is entitled to rely on a permitted derogation under Data Protection Law in order to transfer the personal data outside of the EEA or the UK, which may include circumstances where (among other things): (i) the transfer is necessary for the performance of a contract between the data subject and the controller or the implementation of pre-contractual measures taken at the data subject’s request; (ii) the transfer is necessary for the conclusion or performance of a contract concluded in the interest of the data subject between the controller and another person; or (iii) the transfer is necessary for the establishment, exercise or defence of legal claims; or
(d) it is instructed by the Customer to do, including through the Customer, or its authorized users accessing the Content Data from such a third country, it being understood and acknowledged that in that case, it is the sole responsibility of the Customer to ensure compliance of the resulting international transfer with Data Protection Law.
5.3 Ansarada will be able to use the United Kingdom’s Information Commissioner’s Office (ICO) International Data Transfer Addendum to the EU Commission Standard Contractual Clauses as a transfer mechanism to comply with the requirement under Article 46 of the UK GDPR to provide appropriate safeguards for personal data when it is transferred from the United Kingdom to countries which are not covered by the United Kingdom’s adequacy regulations. For the avoidance of doubt: The United Kingdom has adequacy regulations in relation to the EEA. This Addendum can be found in Annex IV.
5.4 For the purposes of clause 5.2(a), the adequate transfer mechanisms may include: (i) transferring the personal data to a recipient in an Adequate Territory, (ii) transferring the personal data to a recipient that has achieved binding corporate rules authorisation in accordance with Data Protection Law, or (iii) transferring the personal data to a recipient that has executed the Model Clauses necessary for the relevant transfer to comply with Data Protection Law.
6. Administrative matters
You acknowledge that Ansarada has appointed Ansarada UK Limited as its representative and that the ICO is Ansarada’s lead supervisory authority for the purposes of Data Protection Law. You may provide notices to Ansarada UK Limited in addition to Ansarada’s other relevant contacts for the purposes of administering the rights and obligations set out in this Agreement or under Data Protection Law.
In this Schedule:
“Adequate Territory” means a territory outside of the European Economic Area (“the EEA”) that has been designated by the European Commission as ensuring an adequate level of protection pursuant to EU Privacy Law.
“Applicable Law” means applicable law, statute, bye-law, regulation, order, regulatory policy, guidance or industry code, rule of court or directives or requirements of any regulatory body, delegated or subordinate legislation or notice of any regulatory body.
“Content Data” means the content (comprising any speech, music, sounds, visual images or data of any description) created, provided, posted, hosted, uploaded, stored, communicated or displayed when using the Ansarada Services.
“CRM Data” means any personal data of staff or representatives of a Party which is processed by the other Party for the purposes of managing the Ansarada Services, administering a Services Agreement or marketing products or services to that Party.
“Data Security Incident” means the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, personal data transmitted, stored or otherwise processed.
“Data Protection Law” means:
(a) prior to 25 May 2018, Directive 95/46/EC of the European Parliament and of the Council on the protection of individuals with regard to the processing of personal data and on the free movement of such data;
(b) on and after 25 May 2018, the GDPR;
(c) Directive 2002/58/EC of the European Parliament and of the Council on privacy and electronic communications; and
(d) the UK GDPR;
or other such statutory provisions which modify consolidate, re-enact or supersede these acts and regulations.
“Effective Date” has the meaning given at the top of this Agreement.
“European Economic Area” (or the“ EEA”) means the Member States of the European Economic Area as it is made up from time to time, comprising the Member States of European Union and such other countries that are party to the Agreement on the European Economic Area that entered into force on 1 January 1994, including the United Kingdom.
“GDPR” means Regulation 2016/679 of the European Parliament and of the Council on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation).
“Model Clauses” means model clauses for the transfer of personal data to Controllers or Processors (as appropriate) established in third countries approved by the European Commission from time to time (available online at http://ec.europa.eu/justice/data-protection/document/international-transfers/transfer/index_en.htm), as such model clauses may be amended or superseded by the European Commission from time to time.
“Parties” means Ansarada and you and “Party” means either of them.
“UK International Data Transfer Addendum” means the International Data Transfer Addendum to the Model Clauses issued by the Information Commissioner’s Office (ICO) from time to time (available online at https://ico.org.uk/for-organisations/guide-to-data-protection/guide-to-the-general-data-protection-regulation-gdpr/international-data-transfer-agreement-and-guidance/), as such addendum may be amended or superseded by the Information Commissioner’s Office from time to time.
“UK GDPR” means the UK General Data Protection Regulation and the Data Protection Act 2018.
“User” means any end user or administrator of a Service.
“User Data” means personal data regarding Users which is not Content Data or CRM Data. Such personal data include user IDs, passwords, authenticators, addresses (including MAC addresses, IP addresses and email addresses) and telephone numbers.