Customer Agreement

Effective starting: 1 July 2018

1. This Agreement

1.1 These terms, any Order Form, our Privacy Policy, our Acceptable Use Policy and any other referenced policies and attachments together form the agreement which applies to all work performed by Ansarada Pty Limited (ACN 131 899 397) (“Ansarada”, “we”,“us” or “our”) for your use of the Ansarada Services (the “Agreement”).

1.2 A subscription allows you to access the Ansarada Services. A subscription may be procured through the Ansarada Services interface or via an order form or engagement letter entered into between you and us (each, an “Order Form”). Subscriptions commence when we make them available to you and continue for the term specified in the Order Form. We sometimes enter into other kinds of ordering arrangements, but that would need to be spelled out and agreed to in an Order Form.

1.3 Where you procure a number of different services from us, individual Agreements will apply in respect of each of those services. Each Agreement will be made up of the relevant Order Form, (as applicable), these terms, our Privacy Policy and our Acceptable Use Policy.

By clicking on the “I agree” (or similar button) that is presented to you at the time of your order, by signing an Order Form or by using or otherwise accessing the Ansarada Services, you indicate your assent to be bound by this Agreement. If you do not agree with the terms or cannot comply with the Agreement, you must not use the Ansarada Services.

2. The Ansarada Services

2.1 We will use all reasonable commercial efforts to provide you with the products and services described in the Order Form, which may include without limitation online virtual data rooms and associated services, the Material Information Platform™, the Tender Platform™ and the Ansarada Intelligent Deal Assistant™ (the “Ansarada Services”), in a timely, professional and workmanlike manner.

2.2 You will promptly provide us with any information necessary for the provision of the Ansarada Services, including but not limited to providing us with access to your staff, information and technology as necessary and appropriate.

2.3 You are responsible for:

(a) your use of or reliance on the 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; and
(b) determining:
(i) the users having access to the Ansarada Services, who may be your staff or those of third parties (“Your Users”);
(ii) the information to be provided to us by you and Your Users (“Your Content”); and
(iii) which parts of Your Content that Your Users are permitted to access.

3. Privacy and confidentiality

3.1 Our commitment to you. We will:

(a) not disclose any of Your Content that constitutes proprietary, confidential or personal information to any third party, except as necessary to provide the Ansarada Services (including but not limited to allowing Your Users to access Your Content as determined or instructed by you), where required by law, where certain organisations whose users view or post Q&A information in our data room(s) need us to separately provide them with copies of that information in order for them to comply with applicable US SEC rules, or where you give us permission to do so;
(b) have appropriate security measures in place that are designed to protect your proprietary, confidential and personal information against unauthorised access, disclosure or use;
(c) comply with privacy laws that apply to us (including but not limited to, where applicable, as a data processor) when collecting, holding, using or disclosing any personal information, including but not limited to personal information concerning Your Users; and
(d) comply with the terms set out in the Schedule (European Data Processing Terms) to this Agreement 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.

3.2 Naturally, your confidential information does not include any information that has rightfully been shared with us free of an obligation of confidence, or publicly disclosed by someone other than us.

3.3 Your commitment to us. You will:

(a) ensure that you have obtained all rights necessary for us to handle and process Your Content;
(b) comply with any privacy legislation that applies to you as a data controller when including personal information in the data room(s) or other Ansarada Services, or when disclosing any personal information to us in order to receive the Ansarada Services;
(c) confirm that the purposes for which personal information disclosed to us may be processed are as described in the Agreement and our Privacy Policy. If this is not the case, you must notify us before providing us with the relevant personal information and we must agree to any necessary amendments to our processing of that personal information before you may provide it to us;
(d) not disclose any of our proprietary, confidential or any personal information to any third party, except where required by law or where we give you written permission to do so. Our proprietary information includes without limitation the software applications used to provide the Ansarada Services; and
(e) comply with the terms set out in the Schedule (European Data Processing Terms) to this Agreement 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.

3.4 Naturally, our confidential information does not include any information that has rightfully been shared with you free of an obligation of confidence, or publicly disclosed by someone other than you.

4. Fees, expenses and payment terms

4.1 You will pay the fees for the Ansarada Services as described in the Order Form(s). Where you purchase the Ansarada Services online, fees are specified at the Ansarada Services interface “check-out”– and must be paid in advance. Payment obligations are non-cancellable and, except as expressly stated in the Agreement, fees paid are non-refundable. If we agree to invoice you for the Ansarada Services by email, full payment must be received within thirty (30) days from the invoice date. If you fail to pay any fees by the due date for payment, we may provide you with notice of those overdue fees. If you do not pay the overdue fees within seven (7) days of the date of such notice, we may suspend your account and/or your access to the Ansarada Services until such overdue fees are paid.

4.2 Fees are stated 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 (collectively, “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.

4.3 If we have to produce information, answer questions, attend court or otherwise comply with an order, subpoena or other legal or regulatory process that relates to the Ansarada Services, you will also reimburse us for our time and expenses (at our standard rates, or any alternative rate agreed in writing between both parties before any work is commenced).

5. Usage fees for data rooms

5.1 For the provision of the online virtual data rooms only, unless otherwise agreed or stipulated in an Order Form, usage fees commence when the first ‘guest’ user logs into the data room (triggering the commencement of the project duration). However, where the data room is used for any transactional purpose(s) and the user type ‘guest’ is not enabled within the data room then billing may commence upon the earlier of the data room enabled date, first enabled document date or Agreement start date.

6. Intellectual property rights

6.1 We grant you a limited, non-exclusive, revocable licence to access and use the Ansarada Services to the extent permitted by the Agreement. This licence will remain in effect until the Agreement expires or is terminated by you or by us, except where we suspend your account and/or your access to the Ansarada Services as described in the Agreement. It does not grant you any ownership rights in respect of the Ansarada Services or the Intellectual Property Rights or proprietary information belonging to us or our licensors, including without limitation where they form part of the Ansarada Services.

6.2 We warrant, represent and undertake that the Ansarada Services, as provided by us and used in accordance with this Agreement and our instructions and policies, do not infringe the Intellectual Property Rights of any third party. For clarification, this warranty does not apply to any of Your Content, including without limitation where it is uploaded to or hosted on the Ansarada Services.

6.3 You hereby grant us, our related bodies corporate and our suppliers a non-exclusive, worldwide, irrevocable (for the term of the Agreement) licence to handle and process Your Content for the purposes of providing you with the Ansarada Services and for all other purposes described in the Agreement and our Privacy Policy and Cookie Policy.

7. Should either party wish to terminate our Agreement

7.1 The Ansarada Services are provided on a subscription basis for a set term specified in your Order Form (“Subscription Term”). Except as otherwise specified in your Order Form, all subscriptions will automatically renew for periods equal to your initial Subscription Term (and you will be charged at the then-current rates) unless you give Ansarada written notice of non-renewal at least thirty (30) days before the end of a Subscription Term to stop the subscriptions from automatically renewing.

7.2 This Agreement is in effect for as long as you have a valid Subscription Term (the “Term”), unless sooner terminated as permitted in this Agreement. Either party may terminate this Agreement before the expiration of the Term if the other party materially breaches any of the terms of this Agreement and does not cure the breach within thirty (30) days after written notice of the breach. Either party may also terminate the Agreement before the expiration of the Term if the other party ceases to operate, declares bankruptcy, or becomes insolvent or otherwise unable to meet its financial obligations. You may terminate this Agreement at any time with notice to Ansarada, but you will not be entitled to any credits or refunds for amounts accrued or paid for any subscription prior to such termination. Except where an exclusive remedy may be specified in this Agreement, 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. Once the Agreement terminates, you will no longer have any right to use or access any of the Ansarada Services, or any information or materials that we make available to you under this Agreement, including our confidential.

7.3 Following the expiry or termination of the Agreement, we will retain a copy of Your Content in accordance with our archival policies (as described in our online help and support documents).

8. The things we will not be responsible for

8.1 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.

8.2 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.

8.3 If any guarantee, warranty, term or condition is implied or imposed in relation to the Agreement under any applicable legislation and cannot be excluded (a “Non-Excludable Provision”), and we are able to limit your remedy for a breach of the Non-Excludable Provision, then our liability for breach of the Non-Excludable Provision is limited (at our option) to:

(a) in the case of goods, the replacement of the goods or the supply of equivalent goods, the repair of the goods, the payment of the cost of replacing the goods or of acquiring equivalent goods, or the payment of the cost of having the goods repaired; or
(b) in the case of services, the supplying of the services again, or the payment of the cost of having the services supplied again.

8.4 Subject to our obligations under the Non-Excludable Provisions and to the maximum extent permitted by law:

(a) except for our liability under clause 8.7, our maximum aggregate liability for all claims under or in connection with the Agreement or its subject matter, is limited to an amount equal to the amounts paid and payable by you under the Agreement;
(b) we are not liable for, and no measure of damages will, under any circumstances, include special, indirect, consequential, incidental or punitive losses or damages, whether or not such loss or damage was foreseeable and even if advised of the possibility of the loss or damage. Some jurisdictions do not allow for limitation of liability for incidental or consequential damages, so the limitations described above may not apply to you; and
(c) our liability to you under or in connection with the Agreement or its subject matter is reduced to the extent that your acts or omissions, or those of a third party, contribute to or cause such liability.

8.5 These limitations and exclusions apply regardless of the basis on which our liability arises, whether in contract, tort (including but not limited to negligence), in equity, under statute or on any other basis.

8.6 You indemnify us against any claim, action, proceeding or demand (“Claim”) by a third party arising from or in connection with:

(a) any breach of your obligations under any of the following clauses of the Agreement:
(i) clause 2.3 (The Ansarada Services);
(ii) clause 3.3 (Privacy and confidentiality – Your commitment to us); or
(iii) clause 6.3 (Intellectual property rights);

(b) our provision of access to Your Content as determined or instructed by you;
(c) Your Content, including but not limited to any Claim alleging that Your Content or our handling or processing of Your Content infringes the Intellectual Property Rights of a third party; or
(d) any of our acts or omissions in reliance on false, misleading or incomplete information that you have provided to us,
including without limitation all liability, damages, losses, costs, charges, outgoings, payments and expenses suffered or incurred in connection with any such Claim.

8.7 We indemnify you against any Claim by a third party alleging that your use of the Ansarada Services as provided and in accordance with this Agreement and our instructions and policies infringes the Intellectual Property Rights of a third party, including without limitation all liability, damages, losses, costs, charges, outgoings, payments and expenses suffered or incurred in connection with any such Claim. For clarification, this indemnity does not apply to any of Your Content.

8.8 For the purposes of the Agreement:

(a) “Intellectual Property Rights” means any and all intellectual and industrial property rights throughout the world including but not limited to rights in respect of or in connection with any confidential information, copyright (including but not limited to future copyright and rights in the nature of or analogous to copyright), Moral Rights, inventions (including but not limited to patents), trade marks, service marks, designs and circuit layouts whether or not now existing and whether or not registered or registrable including but not limited to any right to apply for the registration of such rights and all renewals and extensions; and
(b) “Moral Rights” means moral rights as described in Article 6bis of the Berne Convention for the Protection of Literary and Artistic Works and any analogous rights arising under statute that exist, or may come to exist, anywhere in the world.

8.9 In respect of the indemnities set out in clauses 8.6 and 8.7:

(a) the indemnified party must:
(i) promptly notify the indemnifying party of any such Claim,
(ii) provide full authority to the indemnifying party to assume control of the defence and settlement of any such Claim, provided that the indemnified party will retain the right to defend or settle any portion of a Claim to the extent that it is not within scope of an indemnity under clause 8.6 or 8.7;
(iii) cooperate with the indemnifying party (at the indemnifying party’s expense) in relation to the Claim; and
(iv) not make admissions in relation to the Claim without the prior consent of the indemnifying party (such consent not to be unreasonably withheld); and
(b) if the indemnifying party does not assume control of the defence and settlement of any such Claim within a reasonable period of time, the indemnified party will have the right to defend the Claim in such manner as it may consider appropriate.

8.10 We are not liable for any improper access, copying or corruption of information before it enters or once it leaves our systems.

8.11 We are not responsible for delays, disruptions or other faults in the Ansarada Services 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, acts of God such as fires, storms, floods, earthquakes, or changes to laws or government actions. We are not responsible for any damage to any of your equipment or software resulting from your use of the Ansarada Services.

8.12 YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE ANSARADA SERVICES IS AT YOUR SOLE RISK. THE ANSARADA SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. WE EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. YOU FURTHER EXPRESSLY AGREE THAT NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR THROUGH OR FROM THE ANSARADA SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT AND THAT NO ACCOUNTING, FINANCIAL OR LEGAL ADVICE OR COUNSEL IS GIVEN OR SHALL BE DEEMED TO HAVE BEEN GIVEN BY THE ANSARADA SERVICES.

8.13 Some of the Ansarada Services may provide recommendations, comments and prompts, including but not limited to predictive insights or statistical analysis. These are not a substitute for legal, accounting or other professional advice and you should determine independently or with the aid of advice whether and how to proceed with any recommendations, comments or prompts provided to you.

8.14 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.

9. Any suggestions or (dare we say it) complaints

9.1 We are always happy to discuss any suggestions you have about how the Ansarada Services can be improved, or any complaint you may have about them.

9.2 We will investigate and try to resolve any complaint as quickly as possible.

10. Dispute resolution

10.1 If a dispute arises out of or relates to this Agreement, either party may in its discretion refer the dispute to arbitration, which must be conducted in accordance with the UNCITRAL Arbitration Rules (the “Rules”), and each of the additional sections set out in Division 3 of Part III of the International Arbitration Act 1974 (Cth) will also apply.

10.2 The number of arbitrators appointed will be one. The arbitration will be conducted under the law governing this Agreement, as set out in clause 11.1. The place of arbitration will be Sydney, Australia, and the language of the arbitration will be English.

10.3 In the event of any conflict between this clause 10 and the Rules, this clause 10 will take precedence over the Rules to the extent of the conflict.

11. A few last points to consider

11.1 This Agreement will be governed by the following laws, depending on where you are incorporated or established:

(a) if you are incorporated or established in Australia or Asia (except in China or Hong Kong), the laws of New South Wales. Each party submits to the non-exclusive jurisdiction of the courts of New South Wales and the Commonwealth of Australia;
(b) if you are incorporated or established in China or Hong Kong, the laws of Hong Kong. Each party submits to the non-exclusive jurisdiction of the courts of Hong Kong;
(c) if you are incorporated or established in Europe (except in Germany) or Africa, the laws of England and Wales. Each party submits to the non-exclusive jurisdiction of the courts of England and Wales;
(d) if you are incorporated or established in Germany, the laws of Germany. Each party submits to the jurisdiction of the courts of Frankfurt am Main; and
(e) if you are incorporated or established in North America or South America, the laws of Illinois, United States. Each party submits to the exclusive jurisdiction of the United States District Court for the Northern District of Illinois, and, only if there is no federal subject matter jurisdiction, any state court of Illinois sitting in Chicago.

11.2 Nothing in this Agreement limits any liability you or we may have in connection with any representations or other communications (either oral or written) made prior to or during the term of this Agreement, where such liability cannot be excluded.

11.3 Subject to clause 11.2, this Agreement constitutes the entire agreement between you and us in connection with the Ansarada Services, and will supersede all previous communications (either oral or written) between you and us with respect to the subject matter of this Agreement.

11.4 If either party decides not to enforce a particular provision of the Agreement in one instance, that decision does not prevent that party from subsequently enforcing that same provision or any other provision.

11.5 Any part of the Agreement what is wholly or partially void or unenforceable is severed to the extent that it is void or unenforceable. The validity or enforceability of the remainder of the Agreement is not affected.

11.6 We may occasionally make changes to these terms. The updated terms will apply:

(a) to any new Ansarada Services you order after the change is made (the most recent version of our terms always applies at the time Ansarada Services are ordered);
(b) and to your existing Ansarada Services from 3 months after the date on which we notify you of those changes, or such shorter period of time that may be required to enable us to comply with any applicable law.

11.7 You may not assign the Agreement or any part of it, or transfer any of your rights under it, to a third party without our prior written consent. We may not assign the Agreement or any part of it, or transfer any of our rights under it, without your prior written consent, except where such assignment or transfer is in connection with an internal restructure of our business or where we sell or divest some or all of our business in which case we may do so by notifying you accordingly.

11.8 The provisions of the Agreement that by their nature survive termination or expiry of the Agreement will do so.

Schedule – European Data Processing Terms

1. Applicability

This Schedule shall apply where Ansarada processes personal data of data subjects that are located in the European Economic Area or where Ansarada processes personal data your behalf where you are established in the European Economic Area 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 European 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 and User Data; and
(b) you shall be the controller of and Ansarada shall be a processor of Content Data (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 European Data Protection Law including:

(a) by processing such data fairly and lawfully;
(b) by implementing appropriate technical and organisational measures to protect such 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.

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: (i) to perform its obligations under this Agreement; and (ii) to comply with its obligations under Applicable Law (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 the you if, in its opinion, an instruction infringes European Data Protection 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 European 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 subcontractors) (each an “Authorised Person”) shall be under an obligation (whether under contract or statute) to keep the personal data confidential.

4.5 Security
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.

4.6 Subprocessing
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”). Ansarada will ensure that there is in place a written contract between Ansarada and the 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 5. 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 5.6 and you shall have sole responsibility for putting in place an appropriate data processing agreement with the Contracted Third Party that complies with European Data Protection Law.

4.7 Cooperation

Ansarada shall:
(a) 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;
(b) 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 European Data Protection Law and taking into account the nature of the processing and the information available to Ansarada.
If compliance with this clause 5.7 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 the 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 European 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 accepts 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.

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.

5. International transfers

5.1 The Parties acknowledge that Ansarada is located in a territory outside of the EEA that is not an Adequate Territory. The appropriate form of the Model Clauses will be incorporated into this Agreement by reference and will apply to the processing of any personal data that is transferred from you to Ansarada 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 European Economic Area 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 security measures agreed in the Agreement will be deemed to be set out in Appendix 2 to the Model Clauses;
(e) the optional illustrative indemnification clause will be deemed to have been deleted; and
(f) 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 European Economic Area (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 European 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; or
(c) Ansarada is entitled to rely on a permitted derogation under European Data Protection Law in order to transfer the personal data outside of the European Economic Area, 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.

5.3 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 European Data Protection Law, or (iii) transferring the personal data to a recipient that has executed Model Clauses.

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 European 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 European Data Protection Law.

7. Definitions

In this Schedule:

“Adequate Territory” means a territory outside of the European Economic Area 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.

“Effective Date” has the meaning given at the top of this Agreement.

“European 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; and
(c) Directive 2002/58/EC of the European Parliament and of the Council on privacy and electronic communications.

“European Economic Area” 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.

“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.

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