1. This Agreement:
1.2 A) Subscription Plan
The Ansarada Services are accessed by a nominated subscription plan which are offered as offered as 90°, 180° or 360° (“Subscription Plan”).
1.2 B) Per User Pricing
The Subscription Plans are priced on a per user basis. All Users will be invoiced to the Customer on this basis (“Pricing”).
In circumstances where the number of Users changes, this will determine Pricing.
For the purposes of this Agreement.
Users means the Customer’s employees, agents, contractors, service providers including advisers or consultants who are authorised by the Customer to use the Ansarada Services and who have been supplied with a user email address and password by the Customer or by Ansarada at the Customer’s request to enable those persons to use and/or access the Ansarada Services. For the avoidance of doubt, Customers may have unlimited Guest Users. Guest Users are persons or parties who are not Users or representatives of Users as defined and otherwise authorised by the Customer to use the Ansarada Services.
1.3 In circumstances where the Customer requires different services, individual Agreements in respect of each of those services may apply.
1.4 By clicking “I agree” (or similar button) you accept the Agreement as binding and enforceable. If you do not agree, you must not use or access the Ansarada Services.
2. The Ansarada Services
2.1 We will use all reasonable commercial efforts to provide you with access to and use of the Ansarada Services described in the Order Form. This may include the Ansarada Platform and associated add on packs, the Ansarada Pathways, the Transaction Room, the Tender Platform and the Ansarada Intelligent Deal Assistant (together, the “Ansarada Services”), in a timely and professional manner.
2.2 The Customer agrees to provide Ansarada with any information reasonably necessary for the provision of the Ansarada Services, including but not limited to, providing information and technology as necessary and appropriate.
2.3 You are responsible for:
(a) 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; and
(ii) any Guest Users;
(iii) the information to be provided to us (“Your Content”); and
(iv) which parts of Your Content that 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, to our Authorised Sub-Processors as defined in the Schedule below, where certain organisations whose users view or post Q&A information in our Transaction Room need us to separately provide them with copies of that information in order for them to comply with applicable US SEC rules or the listing rules of any stock exchange which applies to you, 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 Users; and
(d) comply with 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 (including but not limited to, where applicable, as a data controller) when including personal information in the Transaction Room or other Ansarada Services, or when disclosing any personal information to us in order to receive the Ansarada Services;
(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 other Works referred to in clause 6); and
(e) comply with 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 Subscription Plan fees for the Ansarada Services as described in the applicable Order Form(s). . [NE3] . If we agree to invoice you for the Ansarada Services by email, full payment must be received within thirty (30) calendar days from the invoice date.
4.2 You must provide current, complete and accurate billing information (“Billing Data”) for your Subscription Plan. You must promptly update all Billing Data to keep your Subscription Plan current, complete and accurate (such as a change in billing address, credit card number, credit card expiration date or bank account details) and you must promptly notify Ansarada if your payment method is changed (for example, for loss or theft) or if you become aware of a potential breach of security, such as the unauthorised disclosure or use of your name or password. If you fail to provide any of the foregoing information, you agree that we may continue charging you for any use of the Ansarada Services under your Billing Data unless you have terminated this Agreement in accordance with clause 7 below.
4.3 We will determine your fees for the next billing period by reviewing the number of Users in your Subscription Plan before the start of each billing period and, if you have elected to pay your fees annually upfront, we will review the number of Users in your Subscription Plan on a monthly basis (“Review”). If, at the time of our Review, the number of Users increases then:
– where your fees are billed monthly, your fees will automatically increase from the next billing period.
– where your fees are billed annually upfront, you will automatically be issued a new invoice with the relevant fees (such invoice to be pro-rated for the remainder of the Subscription Term).
You may also upgrade your Subscription Plan at your selection and this will result in an increase of fees too. The increased fees will continue in effect for the remainder of your Subscription Term.
In circumstances where You purchase a pre-pay pack which nominates a set number of Users (Pre-Pay Pack) then an agreed discount will be applied. However, if you choose to add additional Users then you acknowledge that these additional Users consumed will not attract the discount.
4.4 You will pay all applicable fees when due as specified in the Order Form(s). If you fail to pay any fees by the due date, we may, in our discretion, suspend your account and/or your access to the Ansarada Services until such overdue fees are paid. Payment obligations are non-cancellable and, except as expressly stated in the Agreement or required by law, fees paid are non-refundable and non-creditable. You agree that in the event Ansarada is unable to collect the fees owed to Ansarada for your Subscription Plan under the Agreement, Ansarada may take any other steps it deems necessary to collect such fees from you and you will be responsible for all costs and expenses incurred by Ansarada in connection with such collection activity, including collection fees, court costs and attorneys’ fees.
4.5 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.
4.6 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 commercial rates).
4.7 The Parties agree that Guest Users may be invited to access the Transaction Room without You incurring any fees or additional charges, however this is conditional on those persons being Guest Users as defined by this Agreement. Ansarada reserves the right to determine fair use of the Transaction Room and may, if it considers in good faith, that fair use has been breached we may issue or amend an invoice to You that recognises all persons or parties we consider to be Users. For or the avoidance of doubt, this does not apply to targeted Transactions where parties may be on either side of a transaction or otherwise represent those parties.
5. Transaction Room
5.1 Where we agree to provide you with a Transaction Room as a standalone product or as part of the Tender Platform, unless otherwise agreed or stipulated in an Order Form, usage fees commence upon the earlier of the Transaction Room or Tender Platform enabled date, first enabled document date or the Agreement start date.
5.2 Where we provide you with access to a Transaction Room as part of the Ansarada Platform on a 90°, 180° or 360° Subscription Plan, it may only be used for a single transaction. For the avoidance of doubt, you acknowledge and agree that You must not, under any circumstances, recycle, reuse or repurpose a Transaction Room for additional projects or events once utilised. Ansarada may, in its discretion, monitor or review Transaction Rooms. In all cases, Ansarada reserves the right to modify the Subscription Plan fees or disable access to any Transaction Room(s) that, in Ansarada’s sole discretion, violates this clause. Ansarada may take these actions without prior notification to you or any third party. Should you require an additional Transaction Room during your Subscription Term, you will be required to purchase a Transaction Room add-on pack.
6. Intellectual property rights
6.1 For the purposes of this Agreement:
(a) “Intellectual Property Rights” means any and all intellectual and industrial property rights throughout the world, whether conferred by statute, common law or in equity and including but not limited to:
(i) rights in respect of or in connection with any confidential information including any right to enforce an obligation to keep information confidential;
(ii) trade secrets;
(iii) know-how including know-how or insights derived over time from provision of Ansarada Services but not including any personal information of customers;
(iv) copyright including but not limited to future copyright and rights in the nature of or analogous to copyright;
(v) Moral Rights;
(vi) inventions (including but not limited to patents, innovation patents and utility models);
(vii) trade marks and service marks;
(viii) designs, circuit layouts and mask works;
(ix) domain names and social media accounts;
(x) technical data;
(xi) rights in databases;
(xii) trade names or business names;
(xiii) any rights in any Resulting Data; and
(xiv) any other rights resulting from intellectual activity or from artificial intelligence insights or machine learning, in relevant business sectors which subsist or which may come to subsist, whether or not now existing and whether or not registered or registrable and including but not limited to:
(xv) any rights to apply for the registration of such rights and all renewals, extensions and reissues of such rights, anywhere in the world, and
(xvi) any rights of action against any third party in respect of any such rights including any right to claim or retain damages or other remedies; 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:
(c) “Resulting Data” means any data or information arising from use by any person of Ansarada Services or works, in anonymised or aggregated form and not including any of Your Content or personal information; and
(d) “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.
6.2 Reservation of rights. All right, title and interest in and to the Ansarada Services and Works (and any modifications, customisations, configurations and derivative works of the Ansarada Services or Works) worldwide are the exclusive property of Ansarada and its related entities and its licensors. All such rights in and to the Ansarada Services and Works are not expressly granted to you under clause 6.3 of this Agreement are reserved by Ansarada and its licensors.
6.3 Limited Licence. 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 nor any other right or licence of any kind except as expressly set out above including, without limitation, any right to obtain possession of any source code, data or other technical materials in relation to the Ansarada Services or Works), in respect of any of the Ansarada Services, the Works 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.
6.4 Limitations. You agree that you will not, and Users will not (except as expressly permitted in your Order Form);
(a) permit any third party to access or use the Ansarada Services or Works;
(b) modify, adapt, alter, copy, make derivative works, translate, reverse engineer, decompile, disassemble or otherwise derive or determine the source code (or the underlying ideas, algorithms, structure or organisation) of Ansarada Services or Works or attempt to do any of these things;
(c) disclose or transmit any content or data contained in the Ansarada Services or Works (not including Your Content) to any third party;
(d) circumvent or endanger the operation or security of the Ansarada Services or Works or attempt to do any of these things and you will use your reasonable endeavours to ensure that any Guest Users also comply with these limitations.
6.5 We warrant, represent and undertake (to the best of our knowledge) 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.
6.7 You agree that Ansarada is permitted to run data analytics on Ansarada Services and Your Content for the purposes only of supporting the provision and development of Ansarada Services, Works and machine learning.
7. Should either party wish to terminate our Agreement
7.1 The Ansarada Services are provided on a Subscription Plan basis for a set term specified in your Order Form (“Subscription Term”). Except as otherwise specified in your Order Form, all Subscription Plans will automatically renew for periods equal to your initial Subscription Term (and you will be charged at the then-current rates) unless either party gives written notice of non-renewal to the other party thirty days prior to the end of a Subscription Term to stop the Subscription Plan 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, with written notice, terminate this Agreement before the expiration of the Term upon occurrence of the following events: (i) the other party materially breaches any of the terms of this Agreement and does not cure the breach within thirty (30) days after receiving written notice of the breach; or (ii) if the other party ceases to operate, or becomes insolvent (“Termination for Cause Event”). Should we terminate this Agreement for any Termination for Cause Event, you will pay any unpaid fees covering the remainder of the Term after the effective date of termination. You may also terminate this Agreement at any time with written notice to Ansarada (“Termination for Convenience”), but you will: (i) not be entitled to any credits or refunds for amounts accrued or paid for any Subscription Plan prior to such termination; and (ii) remain responsible for paying any fees payable to us under the Agreement for the remainder of the Term. 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, 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.
7.3 Following the expiry or termination of the Agreement, we will retain a copy of Your Content in accordance with our archival policy which may be provided to you on request.
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 6.2 (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 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.
8.9 We are not liable for any improper access, copying or corruption of information before it enters or once it leaves our systems.
8.10 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, 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 or Works.
8.12 YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE ANSARADA SERVICES AND ANY WORKS IS AT YOUR SOLE RISK. THE ANSARADA SERVICES AND ANY WORKS 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 OR WORKS 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 OR WORKS.
8.13 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.
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 12.1. 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.
11.1 You grant us the right to use your company name and logo as a reference for marketing or promotional purposes on our website and in other public or private communications with our existing or potential customers, subject to your standard trademark usage guidelines as provided to us from time-to-time. If You do not wish us to use your company name and logo as described in this clause 11.1 then you may advise us by email at [email protected]
12. A few last points to consider
12.1 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, Australia. 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 The Netherlands) 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;
(e) if you incorporated or established in The Netherlands, the laws of The Netherlands. Each party submits to the non-exclusive jurisdiction of the courts of Amsterdam; and
(f) 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.
12.2 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, to the extent that such liability cannot by law be excluded.
12.3 Subject to clause 12.2, 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.
12.4 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.
12.5 Any part of the Agreement that 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.
12.6 As our business evolves, we may change this Agreement and the other components of the Ansarada Services (except any Order Forms). If we make a material change to the Agreement, we will provide you with reasonable notice prior to the change taking effect by messaging you through the Ansarada Services or on our website. Pricing during any automatic renewal term will be the same as that during the immediately prior term unless We have given You written notice of any pricing increase at least 90 calendar days before the end of that prior term, in which case the pricing increase will be effective at the time of renewal and thereafter. You can review the most current version of the Customer Agreement at any time by visiting this page. If you access or use the Ansarada Services after the effective date, that use will constitute your acceptance of any revised terms and conditions.
12.7 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.
12.8 The provisions of the Agreement that by their nature survive termination or expiry of the Agreement will do so.
12.9 Each person executing this Agreement represents and warrants that he or she has full and legal authority to execute this Agreement and acknowledges, understands and agrees that the Agreement is enforceable against that party on whose behalf they are executing this Agreement in accordance with its terms.
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.
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 Sub processing
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.
(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 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 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.
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.