Kinesis Fleet General Terms and Conditions
- Definitions and Interpretation
Additional Charges means the charges set out in the Charges Schedule;
Affiliates means with respect to any party, any other entity controlling, controlled by or under common control with such party. The terms “control”, “controlling” and “controlled”, as used in this definition shall mean the legal, beneficial or equitable ownership, directly or indirectly, of more than 50% of the issued share capital or more than 50% of the voting rights, or the power, directly or indirectly, to appoint a member of the board of directors or similar governing body of such entity;
Agreement means these Kinesis Fleet General Terms and Conditions;
Charges Schedule means the charges set out at www.kinesisfleet.com/us/charges/
Commencement Date means the beginning of the first billing period;
Confidential Information means information of commercial, proprietary or other value disclosed by one Party to the other Party which is identified as confidential or might reasonably be considered to be confidential and that has not come into the public domain or been independently developed;
Contract means a contract between the Parties for the sale, rent and licence (as applicable) of Products and/or the Services entered into between the Customer and Supplier in accordance with clause 3 that incorporates this Agreement;
Customer means the entity purchasing, renting or licensing the Products (as applicable) and/or the purchaser of Services;
Data Reports means visual and other representations of telematic data accessible through the Website;
Individual means any natural person about whom Personal Data may be Processed under this Agreement.
Firmware means the Supplier’s proprietary tracking unit management and control software;
Fleet means the vehicles, assets or personas to be tracked or traced via the Services;
Force Majeure Event means an event, or a series of related events, that is outside the reasonable control of the Party affected (including power failures, industrial disputes, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars);
Hardware means vehicle telematics units and associated peripherals which may or may not include Firmware, SIM card and network airtime and Onboard Unit
Initial Term the first-time period of a grant of a licence to use the Product and paid for by the Customer as set out in the Sales Order Confirmation;
Installation means fitting the Hardware into the Fleet;
Intellectual Property means any patent, registered or unregistered design right, trade mark or other proprietary rights inherent in the Products any copyrights and database rights, all other similar or equivalent intellectual or commercial rights or property subsisting under the laws of each and every jurisdiction throughout the world whether registered or not, and whether vested, contingent or future and all reversions, renewals, revivals and extensions of any of the foregoing, and all rights under licences, consents, orders, statutes or otherwise in relation to any of the foregoing;
Kinesis and Kinesis Fleet are trading names of the Supplier and the Supplier’s parent company, Radius Payment Solutions Limited (Company number: 08260702);
Kinesis Platform means the IT systems that run the Service;
Location Data means data on the geographical position of the Fleet and other messages sent to or by the Fleet;
Mobile Communication Services means the mobile electronic communication services used for transmitting Location Data;
Onboard Unit means an electronic device that can be used for obtaining, capturing and transmitting Location Data and other driver behaviour events via satellite tracking and for sending and receiving such data;
PAYGO Customer means an entity who is Supplied the Product and Services on a rolling monthly basis;
Personal Data means any information (regardless of the medium in which it is contained) that directly or indirectly identifies an Individual. Personal Data includes Location Data.
Prices means the price:
- for the Products and the Services set out in the Sales Order Confirmation; or
- as agreed between the Customer and the Supplier; or
- as published on the Supplier’s Website from time to time; or
- as set out in the Charges Schedule from time to time;
Process, Processed or Processing mean any operation or set of operations that is performed upon Personal Data, whether or not by automated means, including but not limited to the collection, recording, organization, structuring, alteration, use, access, disclosure, copying, transfer, storage, deletion, combination, restriction, adaptation, retrieval, consultation, destruction, anonymization, disposal, or other use of Personal Data.
Products means the Hardware which is purchased or rented by the Customer and where applicable the Software and Firmware;
Renewal Period shall be on a rolling quarterly basis at a price to be determined by the Supplier;
Sales Order Confirmation means the confirmation sent by the Supplier to the Customer;
Services means the delivery of such services as agreed with the Customer from time to time;
SIM means Subscriber Identity Module card providing network airtime;
Software means the Supplier’s proprietary application software and third party licensed software where applicable in existence at the commencement of the Contract or developed as a product of the Services;
Supplier means Radius Fleet Services, Inc.
Termination Fee means an amount equal to the equivalent of three times the monthly Prices;
Terms means this Agreement along with the Sales Order Confirmation and invoice; and
Website means the content (including all and any displayed materials and graphics such as databases, maps, photographs, and other images) of the Supplier websites at www.kinesisfleet.com/en-us and www.velocityfleet.com/en-us which shall contain the Data Reports.
- A general concept or category utilized in these Terms will not be limited by any specific examples or instances utilized in relation to such a concept or category.
- The singular shall include the plural and vice versa and words denoting persons shall include bodies corporate and unincorporated associations of persons.
- Entire Agreement
- This Agreement sets forth the entire agreement and understanding between the Parties hereto with respect to the subject matter hereof and, except as specifically provided herein, supersedes and merges all prior oral and written agreements, discussions and understandings between the Parties with respect to the subject matter hereof, and neither of the Parties will be bound by any conditions, inducements or representations other than as expressly provided for herein.
- Basis of Contract
- Each order for Products given by the Customer to the Supplier will be deemed to be an offer by the Customer to purchase or rent (and in the case of Software and Firmware, licence) Products from the Supplier subject to the Agreement and in order for a Contract to come into force the Supplier shall send a Sales Order Confirmation to the Customer.
- Notwithstanding the above, use of the Products and/or the Services will, in any event, constitute acceptance of this Agreement by the Customer and a Contract will come into force between the Parties on the basis of this Agreement.
- Hardware Delivery & Installation
- Unless otherwise agreed in writing:
- all Hardware will be delivered FCA by the Supplier to the Customer’s premises or to such other address as may be agreed by the Parties and Hardware shall be deemed accepted upon delivery;
- risk in the Hardware will pass from the Supplier to the Customer upon Supplier’s shipment of the Products;
- Customer may request Installation of the Hardware by the Supplier on an Installation date mutually agreed by the parties. The Installation may be performed by a third party engaged by the Supplier. Where the Customer cancels an arranged Installation with less than twenty-four (24) hours’ notice to Supplier, or otherwise fails to present the vehicle at the agreed date, time or place of Installation, the Supplier may charge the Customer a late cancellation charge of one hundred USD ($125) per vehicle. This late cancellation charge may be amended by Supplier at any time, effectively immediately upon notice to Customer;
- if Customer installs the Hardware or appoints a third party to install the Hardware, the Supplier shall not be liable for any loss or damage whatsoever, arising directly or indirectly, as a result of such installation of the Hardware by Customer or Customer’s elected third party installer.
- Title to Hardware
- Legal and equitable title to the Hardware (excluding where applicable, Firmware and SIM card) will pass from the Supplier to the Customer upon the shipment of the Hardware.
- The Supplier may bring an action for the price of the Hardware, and any other amounts due under a Contract, notwithstanding that title to the Hardware has not passed to Customer.
- Undertakings and Obligations of the Customer
- The Customer shall:
- only use the Products for their specified purpose and in a careful and proper manner solely in compliance with the Supplier’s instructions and specifications;
- ensure that all restrictions and obligations imposed on it by this Agreement apply equally to its Affiliates and its customers;
- ensure that all such Affiliates and its customers fully comply with all such restrictions and obligations, and Customer acknowledges and agrees that as between Customer and Supplier, Customer shall be responsible for all acts and omissions of such Affiliates and customers, and that any act or omission by such Affiliates or customers which, if undertaken by Customer, would constitute a breach of this Agreement, shall be deemed a breach of this Agreement by Customer.
- at all times comply with all legislation, standards and regulations, including but not by way of limitation, those relating to consumer protection, health and safety and environment, that are relevant to any Hardware.
- be responsible for any damage to the Hardware while in the possession of Customer, except for normal wear and tear. In the event Customer needs to return certain Hardware to Supplier under the warranty terms set forth in clause 8, Customer shall notify Supplier via e-mail at firstname.lastname@example.org with the serial number and description of the Hardware. Supplier shall provide to Customer a Return Material Authorization (“RMA”) tracking number within twenty-four (24) hours or the next business day, via e-mail or telephone to be referenced by Customer in the documentation that accompanies the Hardware being returned to Supplier. Customer shall arrange for and pay all transportation, shipping, insurance and related fees, and shall bear the risk of loss until receipt by Supplier.
- Prices and Payment
- The applicable Prices with respect to the Services provided to the Customer by the Supplier shall be as set out in the Sales Order Confirmation.
- Each purchase of Services by the Customer under a Sales Order Confirmation shall be subject to these Terms. In the event of a conflict between the provisions of these Terms and any Sales Order Confirmation, these Terms shall prevail, unless such Sales Order Confirmation specifically states that a term is meant to prevail over these Terms.
- No Order shall be deemed to be accepted by the Supplier unless and until the Sales Order Confirmation has been signed by a duly authorized officer or employee of the Supplier and its signature has been notified to the Customer.
- The Customer shall pay the Prices, via direct debit, to the Supplier in accordance with this clause and as specified in an applicable Sales Order Confirmation. Unless otherwise specified in the Sales Order Confirmation, payment of all amounts due shall be due and payable by the Customer within 14 days of the date of invoice.
- All Prices payable under a Contract are exclusive of all taxes and duties applicable to the sale, licensing and supply of the Products or provision of the Services which will be payable by the Customer.
- If the Customer does not pay any amount properly due to the Supplier under or in connection with a Contract on or before the due date, the Supplier may:
- charge the Customer interest on the overdue amount at the rate of one and a half percent (1.5%) (which interest will accrue daily until the date of actual payment and be payable on demand); or
- the highest amount allowed by applicable law, whichever is less.
- Unless agreed otherwise in writing, Supplier may change any Prices upon giving the Customer 30 days written notice.
- The Customer shall make all payments properly due under a Contract without any deduction whether by way of set off, counterclaim, discount, abatement or otherwise.
- The Supplier warrants that on delivery, and for a period of 12 months from the date of shipment (“Warranty Period”), the Products shall:
- conform in all material respects with their specifications as set forth in the applicable documentation; and
- be free from material defects in design, material and workmanship.
- Subject to clause 3, if:
- the Customer gives notice in writing during the Warranty Period that some or all of the Products do not comply with the warranty set out in clause 1;
- the Supplier is given a reasonable opportunity of examining such Products; and
- the Customer (if asked to do so by the Supplier) returns such Products to the Supplier’s place of business at the Customer’s cost,
the Supplier shall, at its option, repair or replace the defective Products, or refund the price paid for the defective Products in full (where the Customer has purchased such Products). The remedies set forth in this CLAUSE 8.2.3 shall be the Customer’s sole and exclusive remedy for any defective Products or breach of the warranties set forth above.
- The Supplier shall not be liable for the Products’ failure to comply with the warranty in clause 1 if:
- the Customer makes any further use of such Products after giving a notice in accordance with clause 8.2.1;
- the defect arises because the Customer failed to follow the Supplier’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Products or (if there are none) good trade practice;
- the Customer alters or repairs such Products without the written consent of the Supplier, or if Customer combines the Products with any product not authorized or provided by Supplier;
- the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal working conditions;
- the Products differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory standards.
- Except as provided in this clause 8, the Supplier shall have no liability to the Customer in respect of the Products’ failure to comply with the warranty set out in clause 1.
- These Terms shall apply to any repaired or replacement Products supplied by the Supplier under clause 8.2.1.
- EXCEPT AS EXPRESSLY WARRANTED IN CLAUSE 8.1, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE PRODUCTS, INCLUDING THE HARDWARE AND SOFTWARE, AND ALL SERVICES PERFORMED BY SUPPLIER ARE PROVIDED “AS-IS” AND SUPPLIER AND ITS LICENSORS DISCLAIM ANY AND ALL OTHER PROMISES, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, QUIET ENJOYMENT, SYSTEM INTEGRATION AND/OR DATA ACCURACY. SUPPLIER DOES NOT WARRANT THAT THE PRODUCTS, INCLUDING THE SOFTWARE, HARDWARE OR ANY OTHER SERVICES PROVIDED BY SUPPLIER WILL MEET CUSTOMER’S REQUIREMENTS OR THAT THE OPERATION OF THE PRODUCTS WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL ERRORS WILL BE CORRECTED.
- Subject to and in accordance with the provisions of this Contract and the Terms on the Website, from time to time, the Supplier grants to the Customer for the duration of the Initial Term (and any Renewal Period thereafter) a personal, non-exclusive right to: access and browse the contents of the Website; and download and print Data Reports or any part thereof from the Website on the basis that no graphics on the Website shall be used separately from the corresponding text; and Customer shall not utilise the Supplier’s trademarks or trade names in any way without the express written consent of the Supplier save that the Customer shall ensure that the Supplier’s copy right and trade mark notices appear in all copies. No part of the Website may be reproduced or stored in any other website or included in any public or private electronic retrieval system or service.
- Customer acknowledges and agrees that from time to time, the Supplier may update the Terms, and that the Terms as may be updated and posted on the Website or otherwise communicated to the Customer from time to time by the Supplier shall govern the relationship between Customer and Supplier, and Customer agrees to comply with all such updated terms.
- The Supplier shall supply the Customer with a unique, personalised user name and password to enable the Customer to access the Website and thereby use the Service. The Customer agrees that responsibility for the security of any user name or password issued pursuant to this clause 3 rests with the Customer;
- The Supplier shall make the Kinesis Data Reports and the Location Data in respect of any data received from the Customer’s Onboard Unit available on the Website.
- The Customer acknowledges and agrees that the availability of the Website (or relevant parts thereof) is dependent upon systems, technologies and other factors which are beyond the Supplier’s control including but not limited to Mobile Communication Services operated by third party providers and the Internet and interconnected systems. Due to the nature of such technologies, systems and other factors, problems including but not limited to, outages, link failures, power difficulties, network overloads, signal degradation and topographic, electromagnetic and other interferences and government intervention may have an adverse effect on the availability of the Website. The Supplier does not warrant that the features made available on the Website will continue to be supported by Mobile Communication Services or that the Customer will be able to use the features made available on the Website as part of the Services for the intended use, due to the fact that such depends partly on circumstances beyond the Supplier’s reasonable control.
- The Supplier shall have the right at any time to temporarily suspend access to the Website for the purposes of maintaining or repairing the Website or any part thereof; and to make changes to the functionality, presentation, features, modes of access and material content in relation to the Website at any time without notice to the Customer
- The Supplier will provide the Customer with SIM cards for each Onboard Unit that the Customer is entitled to use in accordance with the Contract, which the Customer shall use solely:
- in combination with the Onboard Units; and
- for transmitting Location Date between the Fleet and the Supplier’s platform as permitted as part of the Services.
- License Grant; Intellectual Property Rights and Data
- All Intellectual Property Rights in or arising out of or in connection with the Services or the Products (including the Hardware, Software, Firmware and Data Reports) is and shall remain the property of the Supplier. Customer acknowledges that it neither owns nor acquires any additional rights in and to the foregoing not expressly granted by this Agreement. Customer further acknowledges that Supplier retains the right to use the foregoing for any purpose in Supplier’s sole discretion.
- The Customer acknowledges that, with respect to any third party Intellectual Property Rights in the Services, or the Products, the Customer’s use of any such third party Intellectual Property Rights is subject to the terms of such third-party license.
- Subject to the terms and conditions contained in this Agreement, Supplier hereby grants to Customer a non-exclusive, non-transferable right to use the Software and Firmware, solely as installed on the Hardware, during the Term, in accordance with the terms and conditions herein. Such use shall be limited to use of the Products for the benefit of, or in relation to, the operation of Customer’s business. As soon as reasonably practicable after configuration and installation of the Product, Supplier shall provide to Customer the necessary passwords and network links or connections to allow Customer to access the Service, as further described in clause 9.3.
- Customer will not, and will not permit any Authorized End Users to, (i) copy or duplicate any of the Products; (ii) decompile, disassemble, reverse engineer or otherwise attempt to obtain or perceive the source code from which any software component of any of the Products is compiled or interpreted, or apply any other process or procedure to derive the source code of any software included in the Products, or attempt to do any of the foregoing, and Customer acknowledges that nothing in this Agreement will be construed to grant Customer any right to obtain or use such source code; (iii) modify, alter, tamper with or repair any of the Products, or create any derivative product from any of the foregoing, or attempt to do any of the foregoing, except with the prior written consent of Company; (iv) interfere or attempt to interfere in any manner with the functionality or proper working of any of the Products; (v) use the Service in violation of the Terms of Website Use published by Company; (vi) remove, obscure, or alter any notice of any intellectual property or proprietary right appearing on or contained within any of the Products; or (vii) assign, sublicense, sell, resell, lease, rent or otherwise transfer or convey, or pledge as security or otherwise encumber, Customer’s rights under clause 10.3. Customer will not use any of the Products except in compliance with Supplier’s obligations to any third party with respect thereto incurred prior to the Effective Date. Customer will ensure that its use of any of the Products complies with all applicable laws, statutes, regulations or rules, including any export and import requirements and will not use or compile any of the Products for the purpose of any illegal activities. Customer will further comply with any documentation or written requirements provided by Supplier to Customer, and any best practices and industry specifications when using the Service. Customer shall use any data warehouse functionality provided as part of the Service to store only that Customer’s data which is necessary to take full advantage of the Service. Customer acknowledges that Supplier may restrict data transmission if data transmitted does not reflect the most efficient manner in which to store or use the Service, or if data transmitted is stored for a purpose other than utilization of the Service.
- The Supplier owns all data generated by or related to the operation or performance of the Services (including the Data Reports and Location Data).
- Customer acknowledges and agrees that it owns or has the right to license all data provided by or on behalf of the Customer to the Supplier in connection with the Services. Customer grants to the Supplier a non-exclusive license during the Term of the Agreement to use this data as required for the purpose of performing the Services. Customer represents and warrants that it has sufficient rights to transmit or otherwise permit access to any such data Customer provides to Company, and that, to the extent Customer shares or otherwise permits Company or the Services to make use of any credentials to obtain such data or information, that such sharing of credentials shall not violate the rights of, or any contractual obligations with, any third party.
- The Customer authorizes the Supplier to retain and use a copy of the data referred to clause 10.4 above, in de-identified or aggregated form (such that the identity of the Customer and any Individual is not ascertainable) for the purpose of carrying out data analytics in relation to the services provided to its customers and otherwise developing new products and services (Statistical Data).
- The Customer hereby grants the Supplier a non-exclusive, royalty free, fully-paid, irrevocable worldwide right and licence to access, review, analyse, use, manipulate, copy, and modify the Statistical Data for its own purposes, including but not limited to using the information to produce and distribute reports, analyses and data based upon the Statistical Data. However, except with regards to the use of the Statistical Data in aggregate and anonymized form, the Supplier shall not use for its own purposes or disclose to any third parties Statistical Data that identifies the Customer or any of the drivers of the Customer’s vehicles. It being understood, however, that the foregoing restriction shall not apply to disclosures of Statistical Data that are:
- required by law in response to request from law enforcement authorities;
- made in connection with a court order or other similar demand;
- made in connection with a contemplated merger, acquisition or similar transaction;
- made to the Supplier’s Affiliates or related companies; or
- made to the Supplier’s service providers for delivering the Services, on behalf of the Supplier.
- Nothing in this Agreement or any Contract shall be deemed to exclude or limit the Supplier’s liability in respect of:
- death or personal injury resulting from negligence;
- fraud or fraudulent misrepresentation; or
- loss or damage caused by wilful misconduct or gross negligence of the Supplier or its officers, employees, agents, or contractors.
- Subject to clause 1, in no event, whether in contract, tort (including in either case negligence), misrepresentation (other than fraudulent misrepresentation), breach of statutory duty or otherwise pursuant to the Contract, shall the Supplier be liable for any loss of profits, income, revenue, use, production or anticipated savings, loss of business, contracts or commercial opportunities, loss of or damage to goodwill or reputation, any loss or corruption of any data, database or software or in respect of any special, indirect or consequential loss or damage whatsoever.
- Subject to clauses 11.2 and 11.3, the Supplier’s maximum aggregate liability under the Contract or otherwise shall be limited to the fees paid by the Customer to Supplier in the twelve months immediately preceding the event giving rise to the loss or damage.
- If a Party is prevented or delayed in the performance of any of its obligations under the Contract by a Force Majeure Event, then that Party will be excused from the performance or punctual performance, as the case may be, of its obligation, to the extent that such Force Majeure Event continues and agrees to use all reasonable endeavours to overcome or work around the Force Majeure Event so as to be able to perform its obligations under the Contract.
- Term and Termination
- The Contract will come into force on the Commencement Date, and will continue in force until:
- in the case of a fixed term Contract including the supply of Services, the later of completion of: (i) performance of all Services; and (ii) the receipt by the Supplier of all amounts due to the Supplier under the Contract; or
- in the case of a PAYGO Customer Contract, when terminated by either Party,
in the case of any Contract, the termination of the Contract in accordance with the provisions of this clause 12, if earlier.
- The Supplier may, without prejudice to any of its other rights arising under this Contract, on giving written notice, terminate the Contract:
- on not less than 28 calendar days’ notice, such notice to expire on the last day of any calendar month; or
- with immediate effect, if:
- the Customer fails to observe or perform any material term or condition hereof, including in any event non-payment, and such default or breach (if capable of remedy) shall not be remedied within 20 calendar days after notice in writing, specifying the breach and requiring the same to be remedied, has been given; or
- any of the following events occur: (i) the presentation of a petition for winding up of the Customer; (ii) the Customer is the subject of an order or an effective resolution is passed for winding up the Customer; (iii) the application for an order or application for the appointment of a receiver (including an administrative receiver), administrator, trustee or similar officer in respect of the Customer; (iv) if a receiver, administrative receiver, administrator or similar office is appointed over all or any part of the assets or undertaking of the Customer; (v) the Customer making a composition or arrangement with its creditors generally or an assignment for the benefit of its creditors or other similar arrangement; (vi) the Customer goes into liquidation; (vii) the Customer becoming unable to pay its debts or otherwise becoming insolvent, or (viii) the Customer ceasing, or threatening to cease, to carry on business; or
- there has been any delay or failure in performance under the Contract resulting from any event of Force Majeure, which delay or failure shall have continued for a period of three months.
- In the event of termination in accordance with clause 12.2, the Customer shall pay any unpaid fees covering the remainder of the Initial Term and any subsequent Renewal Period.
- In event that a PAYGO Customer terminates its Contract with the Supplier, the PAYGO Customer shall pay the Supplier the Termination Fee.
- Data Protection
- The Parties will each observe all provisions of relevant data privacy and security laws and regulations. This includes (i) the obligation of the Customer to duly inform Individuals about the Processing of their Personal Data by the Supplier under the instruction of the Customer and (ii) the obligation of the Customer to obtain consents from Individuals in compliance with applicable data privacy and security laws and regulations.
- The Parties acknowledge that, in respect of any Personal Data which the Company Processes on behalf of the Customer in connection with this Contract, including but limited to the data generated by or related to the operation or performance of the Services (including the Data Reports and Location Data), the Customer shall be the data owner or controller (i.e., the entity that determines the purpose and means of Processing Personal Data) and the Supplier shall be the service provider or data processor (i.e., an entity that Processes Personal Data on behalf of the Customer).
- The Supplier shall only collect, Process, store, and use Personal Data to the extent that such is necessary for the performance of this Contract and the improvement of the Kinesis Service. The Customer acknowledges that aggregated or de-identified data is not considered to be Personal Data for purposes of this Contract and may be used by Supplier for any purpose.
- The Customer instructs the Supplier to collect, Process, store and use the Personal Data for the purpose as included under clause 13.3 above.
- The Customer may revoke its consent for the Processing of Personal Data in relation to this Contract at any time. Such revocation must be presented to the Supplier in writing, and the Supplier will have ten (10) business days to cease Processing of the Personal Data. The Customer acknowledges that any such revocation shall not affect the Contract and will leave the Customer’s obligations (including payment obligations) under the Contract intact. The Customer acknowledges that as a result of such revocation the Supplier may not be able to provide the Services.
- The Supplier shall implement reasonable administrative, physical, and technical safeguards to protect any Personal Data collected under the Contract against accidental or unlawful destruction or accidental loss, alteration, unauthorized disclosure or access, in particular where the Processing involves the transmission of Personal Data over a network, and against all other unlawful forms of Processing. Having regard to the state of the art and the cost of their implementation, such measures shall ensure a level of security appropriate to the risks represented by the Processing and the nature of the Personal Data to be protected.
- The Customer warrants that:
- It has all authority and consents necessary to enable the Supplier to process the Personal Data in accordance with all applicable data privacy and security laws; and
- It has complied with and shall, during the Agreement, continue to comply with the obligations of a data owner or controller under all applicable data privacy and security laws described in clause 13.7.1 above. For the avoidance of doubt, in the event of a data breach, as defined in varying U.S. breach notification laws, Customer will act as the data owner or licensee and provide any required notices, including to Individuals or governmental bodies.
- The Customer shall indemnify the Supplier and keep the Supplier indemnified against all claims, demands, actions, proceedings, damages charges, costs and expenses which may be brought against the Supplier in respect of or in connection in any way arising out of or in connection with a breach by the Customer of clause 13.7.
- The Parties acknowledge that they have agreed that the Customer will respond to enquiries from Individuals, any governmental and/or judicial body concerning the Processing of Personal Data by the Supplier and the Customer should have sufficient processes in place to handle such enquiries. To the extent that an Individual contacts Supplier directly, Supplier will refer such enquiries to the Customer.
- In the event of a data breach, as defined in varying U.S. breach notification laws, involving Personal Data Processed by Supplier pursuant to this Contract, Supplier will notify Customer of such breach within seven (7) business days.
- Confidential Information
- Ownership of Confidential Information. The Parties acknowledge that during the performance of this Agreement, each Party will have access to certain of the other Party’s Confidential Information or Confidential Information of third parties that the disclosing Party is required to maintain as confidential. Both Parties agree that all items of Confidential Information are proprietary to the disclosing Party or such third party, as applicable, and will remain the sole property of the disclosing Party or such third party.
- Mutual Confidentiality Obligations. Each Party agrees as follows: (i) to use Confidential Information disclosed by the other Party only for the purposes described herein; (ii) that such Party will not reproduce Confidential Information disclosed by the other Party, and will hold in confidence and protect such Confidential Information from dissemination to, and use by, any third party; (iii) that neither Party will create any derivative work from Confidential Information disclosed to such Party by the other Party; (iv) to restrict access to the Confidential Information disclosed by the other Party to such of its personnel, agents, and/or consultants, if any, who have a need to have access and who have been advised of and have agreed in writing to treat such information in accordance with the terms of this Agreement; and (v) to return or destroy, pursuant to clause 9.4, all Confidential Information disclosed by the other Party that is in its possession upon termination or expiration of this Agreement. Notwithstanding the foregoing, Customer agrees that Company may collect aggregated statistical data regarding Customer’s use of the Application Service and provide such aggregated statistical data to third parties. In no event, shall Company provide to third parties specific data regarding Customer or Customer’s Authorized End Users.
- Confidentiality Exceptions. Notwithstanding the foregoing, the provisions of clause 14.1 and 14.2 will not apply to Confidential Information that (i) is publicly available or in the public domain at the time disclosed; (ii) is or becomes publicly available or enters the public domain through no fault of the recipient; (iii) is rightfully communicated to the recipient by persons not bound by confidentiality obligations with respect thereto; (iv) is already in the recipient’s possession free of any confidentiality obligations with respect thereto at the time of disclosure; (v) is independently developed by the recipient; or (vi) is approved for release or disclosure by the disclosing Party without restriction. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (x) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (y) to establish a Party’s rights under this Agreement, including to make such court filings as it may be required to do.
- No breach of any provision of these Terms or the Contract will be waived except with the express written consent of the Party not in breach.
- If any provision of these Terms or the Contract is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions of these Terms or the Contract will continue in effect. If any unlawful and/or unenforceable provision would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect (unless that would contradict the clear intention of the Parties, in which case the entirety of the relevant provision will be deemed to be deleted).
- Contracts or this Agreement may not be varied except by a written document signed by or on behalf of each of the Parties.
- The Supplier shall be entitled to amend these Terms by publication on the Supplier’s Website, which amendments shall enter into force on the date that the Customer is notified thereof and apply to all Contracts entered into after that date.
- The Supplier may freely assign its rights and obligations under these Terms or the Contract without the Customer’s consent. Save as expressly provided in a Contract, the Customer may not without the prior written consent of the Supplier assign, transfer, charge, license or otherwise dispose of or deal in a Contract or any rights or obligations under these Terms or the Contract.
- Each Contract is made for the benefit of the Parties, and is not intended to benefit any third party or be enforceable by any third party save for any third-party software sub-licensing provisions. The right of the Parties to terminate, rescind, or agree any amendment, waiver, variation or settlement under or relating to a Contract is not subject to the consent of any third party.
- The Contract constitutes the entire agreement between the Parties in relation to its subject matter, and supersedes all previous agreements, arrangements and understandings between the Parties in respect of that subject matter, provided always that the usage of the Website by the Customer shall be governed by the Terms of Website Use.
- Failure or delay by either Party in enforcing or partially enforcing any provision of this Contract will not be construed as a waiver of any of its rights under this Contract. Any waiver by one Party of any breach of, or any default under, any provision of the Contract by the other Party will not be deemed a waiver of any subsequent breach or default and will in no way affect the other terms of the Contract.
- The formation, existence, construction, performance, validity and all aspects of the Contract shall be governed by Massachusetts law and the Parties submit to the exclusive jurisdiction of the Massachusetts courts.