TERMS & CONDITIONS FOR USE OF DIRECT ACCESS CRM SOFTWARE
This is an Agreement for the licence of the Direct Access Customer Engagement Platform (the software) to You by The Company.
The Schedule also contains a list of the rights We are granting You in the Software (“the Rights”) and any restrictions on the Rights. We agree that You can grant the Rights to other people (“Third Parties”) and You agree to make sure they comply with the terms of this Agreement.
In some places, this Agreement talks about both You and Us being “reasonable”. Where that expression is used it means that each of us must behave in the way that an ordinary person unconnected with our businesses would agree was reasonable.
For the purpose of this Agreement, “Data Protection Legislation” means:
- (1) national laws implementing the Data Protection Directive (95/46/EC) and the Directive on Privacy and Electronic Communications (2002/58/EC);
- (2) the General Data Protection Regulation (2016/679) (GDPR); and
- (3) any other similar national privacy law; as applicable from time to time
- “Controller”, “Data Subject”, “Processor”, “Personal Data” and “Personal Data Breach” in this Agreement shall have the meanings as defined in the Data Protection Legislation.
- Each party will comply with Data Protection Legislation when processing Personal Data as Controller or Processor and following a written request from the other party it will provide such documentary information as may reasonably be requested by either party to demonstrate such compliance.
- If either party processes Personal Data as Processor, the following provisions shall apply:
- Each of the parties acknowledges and agrees that this sub-clause is an accurate description of the details of the processing of Personal Data;
- The subject matter and duration of processing: Leads and Customers data for Businesses dogging Marketing
- The nature and purpose(s) of processing: lead/customer management and communication.
- Type(s) of Personal Data: Name, email, location, phone and other business relevant data
- Processor shall only process Personal Data in accordance with Controller’s documented instructions unless required to process such Personal Data for other purposes by applicable laws or regulatory authorities. In such circumstances, Processor shall provide notice to Controller unless the relevant law or regulatory authority prohibits the giving of notice on important grounds of public interest.
- The provisions of Articles 28(3)(b) to 28(3)(h) inclusive of the GDPR shall be incorporated into this agreement by reference and Processor shall comply with the express obligations of a processor as articulated in Articles 28(3)(b) to 28(3)(h) inclusive of the GDPR as so incorporated, provided that Controller may not instruct Processor to delete data that Processor holds on its own behalf as Controller; and (b) the requirements of Article 28(3)(b) of the GDPR shall not apply to persons that Processor is required by applicable laws or regulatory requirements to grant access to Personal Data.
- Processor has primary responsibility to the relevant Data Subjects for the processing of such Personal Data and shall notify Controller of any assistance that Controller may require.
- Controller provides a general authorisation to Processor to engage further Processors to process Personal Data upon and subject to the remaining provisions of this agreement. A list of those further Processors (if any) will be available and Processor shall give Controller prior notice of any intended addition to or replacement of those further Processors by updating that list. If Controller reasonably objects to a change to this list and has the right to object to such change pursuant to the express terms of the Data Protection Legislation, Controller may (within 30 days of such change) escalate any reasonable objection to the relationship manager for discussion. Processor shall only engage Processors where they meet the requirements of Article 28(1) of the GDPR and where Processor considers them to be capable of providing the levels of protection for Personal Data required by this agreement. Processor will monitor and review the performance of all such Processors regularly and Processor shall by liable for the acts and omissions of such Processors as if they were the acts and omissions of Processor.
- Each party may transfer Personal Data outside of the European Economic Area only where it has a lawful basis for that transfer under Articles 44 to 49 (inclusive) of the GDPR.
- Each Party shall notify the other promptly and without undue delay on becoming aware of a Personal Data Breach.
- Each party shall reimburse the other for all legal and other costs, incurred in connection with any Personal Data Breach and any associated remedial action (including without limitation any costs associated with the investigation of the issue, notifications to affected individuals, regulators and other activities undertaken to remedy or minimise the impact of the breach). Where any Personal Data Breach occurs (either as Controller or Processor), the breaching party shall (at its own cost) take such actions as are reasonably required to remedy, or where that is not possible, to mitigate as much as possible the effects of the Personal Data Breach, including making any required notifications to affected Data Subjects and any applicable regulators.
- Insofar as either party is a Controller in relation to Personal Data, that party shall:
- provide to the other a privacy notice in relation to the Personal Data it processes under this agreement that complies with the requirements of the Data Protection Legislation, along with a link to the same, and either:
- (i) incorporate a summary of the notice and a link to it in its own privacy notice to relevant Data Subjects; or
- (ii) provide such notice directly to the affected individuals; and
- immediately notify the other party in writing if it receives any complaint, notice or communication which relates to the processing of such Personal Data, and provide the other party such information and co-operation as the other may reasonably require in relation to the matter.
We make the following promises to You (which are called “warranties”):
- We are fully entitled to enter this Agreement and perform it, and this will remain the case throughout the Term;
- We will operate in accordance with all laws and regulations in the Territory that apply to Us, and the Software will not be used or associated with any other materials that are obscene, defamatory or illegal;
- We will inform You in the event that We become aware of any unauthorised usage of the Software by somebody else during the Term;
- We will use all reasonable efforts to exploit the Software to the best of our ability in accordance with this Agreement.
- You make the following promises or “warranties” to Us:
- There are no claims concerning the Software which would prevent or restrict Us from using the Software in accordance with this Agreement;
- You are fully entitled to enter this Agreement and perform the Agreement, and this will remain the case throughout the Term;
- You have obtained and paid for all consents and approvals and clearances required to entitle You to grant the Rights to Us;
- No part of the Software is unlawful, defamatory or obscene.
- Each of us confirms that, during the course of this Agreement, either of us may receive confidential information in respect of the other. Each of us agrees to keep such confidential information in strict confidence and not to disclose it (other than to our own employees and professional advisors (on a need to know basis).
- Any press and publicity between You and Us and any announcement about this Agreement will be mutually agreed.
- This Agreement will start on the Signing Date (form submission) and will continue until a termination date to be mutually agreed in writing
- However, either of us may terminate the Term of this Agreement immediately by written notice if:
- the other does not comply with a significant obligation under this Agreement and that failure is not put right within 30 days of receipt of written notice of the breach;
- the other stops doing business, or threatens to stop doing business;
- the other suffers a serious “Adverse Financial Event”. A serious Adverse Financial Event means bankruptcy, liquidation, insolvency, or any of the following similar technical legal events:
- a composition with its creditors;
- an assignment for the benefit of its creditors;
- the appointment of a receiver or administrator or an administrative receiver.
- If either You or We terminate the Term of this Agreement, this shall not affect any other remedies that either of us may have against the other.
- If the Term is terminated or expires, We will at our cost (and your choice) return to You or destroy all copies of the Software We possess or control.
- This is the whole Agreement between You and Us. It is a licence Agreement, not an agency, employment, partnership or joint venture Agreement.
- Either of us may transfer any of our rights or obligations under this Agreement to any affiliated or subsidiary company, or to a purchaser of the company. If that happens, whoever the assignor is, they will still be liable for performing their obligations under this Agreement.
- If You or We want to change this Agreement then We must both sign the change in writing.
- The Parties will use their best efforts to negotiate in good faith and settle any dispute that may arise out of or relate to this Agreement or any breach of it.
- If any such dispute cannot be settled amicably through ordinary negotiations between the Parties, or either or both is or are unwilling to engage in this process, either Party may propose to the other in writing that structured negotiations be entered into with the assistance of a fully accredited mediator before resorting to litigation.
- If the Parties are unable to agree upon a mediator, or if the mediator agreed upon is unable or unwilling to act and an alternative mediator cannot be agreed, any party may within 14 days of the date of knowledge of either event apply to LawBite to appoint a mediator under the LawBite Mediation Procedure.
- Within 14 days of the appointment of the mediator (either by mutual agreement of the Parties or by LawBite in accordance with their mediation procedure), the Parties will meet with the mediator to agree the procedure to be adopted for the mediation, unless otherwise agreed between the parties and the mediator.
- All negotiations connected with the relevant dispute(s) will be conducted in confidence and without prejudice to the rights of the Parties in any further proceedings.
- If the Parties agree on a resolution of the dispute at mediation, the agreement shall be reduced to writing and, once signed by the duly authorised representatives of both Parties, shall be final and binding on them.
- If the Parties fail to resolve the dispute(s) within 60 days (or such longer term as may be agreed between the Parties) of the mediator being appointed, or if either Party withdraws from the mediation procedure, then either Party may exercise any right to seek a remedy through arbitration by an arbitrator to be appointed by LawBite under the Rules of the LawBite Arbitration Scheme.
- Any dispute shall not affect the Parties’ ongoing obligations under the Agreement.
- If We have a dispute about this Agreement You and We will refer it to the Centre for Effective Dispute Resolution, so that they can appoint a mediator to help us mediate the dispute. If the mediation doesn’t solve the dispute and either of us starts legal proceedings then We both agree that this Agreement will be interpreted according to English law and that such proceedings can only be brought in the High Court in London