Terms & Conditions
1.1 This agreement together with the Order Form sets out the terms for the provision of the mtribes Platform and the associated Services by Deltatre to the Client (the “Agreement”).
1.2 By accepting the Order Form, You confirm:
(a) that You have the appropriate internal corporate authorisation to enter into this Agreement on behalf of the Client; and
(b) from the date You sign the Order Form, the Client will be bound by this Agreement.
This Agreement shall start on the Start Date and, unless terminated earlier, shall continue for the Subscription Period. This Agreement shall automatically renew for further Subscription Periods unless either Party gives the other at least 1 month’s written notice (or such other period specified in the Order Form) prior to expiry of the then current Subscription Period (the “Term”).
3. Right to Use the mtribes Platform
3.1 Subject to the Client paying the Fees and complying with the terms of this Agreement, Deltatre grants the Client a non-exclusive, non-transferable, revocable, non-sub-licensable right during the Term to:
a) allow Authorised Client Users to access and use the mtribes Platform (on a software-as-a-service basis only);
(b) download, install and execute the mtribes CLI and generate and use the mtribes Generated Code to integrate with other elements of the the mtribes Platform; and
(c) use the Documentation,
solely for the Client’s internal use (including analysing and mapping the Client’s end users for its own purposes).
3.2 Except as otherwise provided in the Agreement, the Client shall be solely and exclusively responsible for:
(a) the Clients’ and its Authorised Client Users’ access and use of the mtribes Platform;
(b) the results obtained from the Client’s use of the mtribes Platform; and
(c) conclusions drawn by the Client from such use.
3.3 You and the Client acknowledge that You will have administrator rights which will allow You to assign Authorised Client Users. The Client (and You) shall only assign Authorised Client Users to employees or independent contractors of the Client.
3.4 Deltatre shall have no liability under or in connection with the Agreement for any damage caused by errors or omissions in any information (including the Client Content) provided to Deltatre by the Client in connection with mtribes.
4. mtribes Platform and Services
4.1 Save where the mtribes Platform and Services are provided on a Free Trial, Deltatre shall provide the mtribes Platform and perform the Services:
(a) in accordance with the Documentation and the relevant Service Plan; and
(b) to meet or exceed the applicable Service Levels.
4.2 The Parties agree that Deltatre may change the functionality of the mtribes Platform or scope of the Services from time to time provided that this does not materially reduce the functionality of the mtribes Platform or the scope of the Services from that offered at the Start Date, save:
(a) where Deltatre removes or changes functions or features that are no longer used by the majority of the Deltatre’s client base or are no longer commercial viable to support;
(b) where Deltatre changes the core purpose of the mtribes Platform; or
(c) to the extent necessary to address a security event.
4.3 Deltatre may from time to time release new versions of the mtribes Platform for use by the Client. This Agreement shall apply to any such versions.
4.4 Deltatre may from time to time notify the Client in writing of versions which are coming to end of life and the date on which those versions will no longer be supported. If the Client has not migrated from these end of life versions by the date specified, the Client may not be able to access or use the mtribes Platform or certain features or functionality of it.
5. Client Responsibilities
5.1 The Client shall:
(a) secure all necessary permissions, authorisations, consents, licences (including third party authorisation, consents, permissions and licences), links and interfaces for Deltatre’s use of Client Content for the purpose of the performance of Deltatre’s obligations under this Agreement;
(b) ensure that all personal data in the Client Content is collected and processed in accordance with Applicable Data Protection Law and any re-enactment and/or ancillary legislation enacted from time to time and that it has the right to transfer and permit Deltatre to process such personal data to enable Deltatre to provide the mtribes Platform and the Services;
(c) ensure that Client Content does not contain any obscene, illegal, infringing, inappropriate or otherwise objectionable content or functionality, as determined by Deltatre in its sole discretion;
(d) ensure that the Client Content does not contain any Virus;
(e) not challenge the title of Deltatre (or any third parties that have granted rights to Deltatre) in and to the mtribes Platform or any Intellectual Property Rights in the mtribes Platform;
(f) use and access the mtribes Platform in compliance with the Documentation;
(g) not use or access the mtribes Platform (or authorise any person to use or access the mtribes Platform) in a way that would breach applicable law or which would cause a material risk to the security or operations of Deltatre or its other clients;
(h) ensure that each Authorised Client User keeps its user name and password for the mtribes Platform safe at all times and should not disclose them to any other person. The Client shall inform Deltatre immediately if there is any breach of security, loss, theft or unauthorised use of any of the user names and passwords; and
(i) ensure that the Authorised Client Users comply with the terms of this Agreement.
6.1 The Client shall keep, maintain and preserve (at the Client’s principal place of business) during the Term, and for least seven (7) years following termination or expiration of this Agreement (the “Audit Period”), complete and accurate records and accounts necessary for the calculation of Fees under this Agreement and to demonstrate compliance with the licence granted under this Agreement (“Records”). All such Records shall be maintained in accordance with generally accepted accounting principles. The Client shall make such Records available for inspection and audit by Deltatre and its representatives for the sole purpose of verifying the calculation of Fees payable under this Agreement. Deltatre may (itself or through its representatives) inspect and audit the Records at any time or times during the Audit Period during reasonable business hours and upon reasonable notice by Deltatre or its independent auditors appointed by Deltatre, but not more than once every calendar year. During such inspection and audit, Deltatre and/or its independent auditors shall have the right to take extracts or make copies of such Records as it deems necessary.
6.2 The exercise by Deltatre, in whole or in part, at any time of its rights under this Clause 6 shall not preclude or prevent Deltatre from disputing at any time, whether before or after an audit, the accuracy of the Records or the calculation of Fees.
6.3 If it is found (whether as a result of an audit or inspection under this Clause 6 or otherwise), that there is a deficiency between the amount due to Deltatre and the amount actually received or credited to Deltatre, then the Client shall be responsible for immediate payment of such deficiency, together with interest from the date such amount became due until the date of actual payment, and if the deficiency is equal to more than five percent (5%) for any period, then the Client shall reimburse Deltatre for the costs and expenses of such audit and inspection.
7. Relief Events
Deltatre shall not be liable and shall be excused for any breach of this Agreement to the extent the breach is a direct or indirect result of the Client’s (or Authorised Client Users’) act or omission or failure to comply with the terms of this Agreement. The Client acknowledges that such act or omission or failure to comply with the terms of this Agreement may result in Deltatre incurring additional costs which will be payable by the Client in accordance with Clause 8.
8. Invoicing and Payment
8.1 Deltatre shall invoice the Client for the Fees monthly in advance for all Fees other than overages (which shall be invoiced monthly in arrears).
8.2 The Client shall pay Deltatre the Fees in accordance with this Clause 8.
8.3 The Client shall pay all sums under this Agreement to Deltatre:
(a) in the currency referred to in the Order Form; and
(b) in accordance with Deltatre’s standard payment process as notified in writing to the Client from time to time.
8.4 All sums payable by the Client to Deltatre under this Agreement are exclusive of VAT. The Client shall pay all VAT properly chargeable on those sums, provided that Deltatre has delivered a correct VAT invoice.
8.5 Unless otherwise agreed in the Order Form, the Parties agree that all Fees (other than for overages) shall be processed using Deltatre’s payment gateway which the Client is required to sign up to in order to access the mtribes Platform and receive the Services. Deltatre shall be entitled to collect such Fees from the Client through the payment gateway immediately following invoicing.
8.6 The Client shall pay Deltatre the Fees for overages no later than thirty (30) days after the date of invoice.
8.7 If the Client fails to make any payment to Deltatre under this Agreement on or before the due date for payment, the Client shall pay interest on the overdue amount at the rate of 4% above the Bank of England’s base rate from time to time. Such interest shall accrue on a day to day basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Parties acknowledge that this amounts to a substantial remedy for late payment. The Client shall pay the interest together with the overdue amount.
8.8 The Client shall pay Deltatre all sums under the Agreement in full without any set-off, counterclaim or deduction. If a deduction or withholding is required by law, Clause 8.8 shall apply.
8.9 If the Client is required by law to deduct or withhold an amount from any sum payable to Deltatre under the Agreement, the Client shall pay to Deltatre a sum that ensures that Deltatre receives and retains a net sum equal to the amount Deltatre would have received if no such deduction or withholding had been made or required to be made.
8.10 Unless agreed otherwise in an Order Form, Deltatre shall be entitled to increase the Fees once in every Contract Year as part of updating its pricing plans applicable to all its clients using the mtribes Platform.
9. Invoice Disputes
9.1 If the Client disputes the whole or part of an invoice, the Client shall notify the Deltatre Billing Contact in writing as soon as reasonably practicable and in any event no later than 14 days after that date of invoice, that the invoice is disputed. The Client’s notice should specify the relevant invoice number; the amount in dispute; the reason that the invoice is in dispute; and the facts that the Client relies on in the dispute.
9.2 The Client and Deltatre shall use reasonable endeavours to resolve the dispute as soon as reasonably practicable.
9.3 If it is agreed or determined that the Client owes the whole or part of the disputed amount to Deltatre, the Client shall immediately pay to Deltatre the amount agreed or determined to be owing; applicable VAT; and interest on the amount owed in accordance with Clause 8.6 from the due date of the original invoice to the date of payment.
9.4 If it is agreed or determined that the Client does not owe Deltatre the whole or part of the disputed amount Deltatre shall issue a revised invoice or credit note to the Client as soon as reasonably practicable, and interest shall not apply in respect of the amount agreed or determined not be owed.
10. Intellectual Property
10.1 Deltatre (and, where applicable, Deltatre’s third party licensors) owns and shall retain all right, title and interest in and to all Intellectual Property Rights in:
(a) the mtribes Platform; and
(b) any other deliverables (other than the Client Content), documentation, reports, methodologies, tools, files, features, source code, knowhow, visual designs, user interfaces, files, documents, notes, sample code examples, processes and other materials in any format that are or were developed or owned by Deltatre or its third parties prior to, during, or independent of, the mtribes Platform and Services, whether or not they form part of mtribes.
10.2 Nothing in this Agreement operates as an assignment of Intellectual Property Rights referred to in Clause 10.1 to the Client.
10.3 The Client hereby assigns to Deltatre all Intellectual Property Rights in the mtribes Generated Code and the right to sue for and recover damages and other relief in respect of such Intellectual Property Rights. The assignment in this Clause 10.3 shall take effect as a present assignment of future rights. At Deltatre’s request, the Client shall execute (or procure the execution of) any document and/or do anything else necessary to give full effect to the assignment under this Clause 10.3.
10.4 The Client shall procure that its employees and individual contractors who are entitled to moral rights under the Copyright Designs and Patents Act 1988 (or equivalent or analogous rights under the laws of any other jurisdiction), in relation to the works that are protected by the assigned Intellectual Property Rights, unconditionally and irrevocably waive all such moral rights.
10.5 The Client owns and shall retain all right, title and interest in and to Client Content. Nothing in this Agreement operates as an assignment of Client Content to Deltatre.
Licence from the Client to the Deltatre
10.6 The Client grants to the Deltatre a worldwide, fully paid-up, non-exclusive, non-transferable (except as provided in Clause 22.2 and 22.3) licence during the Term, to:
(a) use, copy, modify, communicate to the public, publish and distribute Client Content; and
(b) sublicense its subcontractors to do any or all of the things referred to in Clause 10.6(a),
solely for the purpose of providing the mtribes Platform and Services to the Client and performing Deltatre’s other obligations under this Agreement.
10.7 Notwithstanding Clause 10.6, the Client grants Deltatre and its Affiliates a non-exclusive, sub-licensable, transferrable, perpetual, worldwide, royalty-free license to use, copy, modify or publish any non-identifiable or aggregated data or information derived from the Client Content by or on behalf of Deltatre for any purpose.
10.8 The Client shall not:
(a) translate mtribes Platform into any computer language;
(b) use the mtribes CLI or mtribes Generated Code with anything other than the mtribes Platform;
(c) modify or adapt mtribes Platform;
(d) create any derivative works from mtribes Platform;
(e) circumvent or interfere with the operation of any electronic or digital protection measure whose function is to prevent unlawful copying or use of mtribes Platform;
(f) create a substitute or similar service or product to mtribes Platform through use of or access to the mtribes Platform or related proprietary information; or
(g) attempt to do any of the above.
10.9 The Client shall not:
(a) interfere with the operation of any mtribes Platform;
(b) remove, deface, obscure or alter any copyright notice, Deltatre trade mark or other proprietary notice affixed to, contained in or provided within any part of an mtribes Platform (“Deltatre Proprietary Notice”);
(c) use in respect of any mtribes Platform and/or in relation to any advertising, marketing or promotional material relating to an mtribes Platform any copyright notice or trade mark that conflicts with or negates any Deltatre Proprietary Notice.
10.10 The Client shall
(a) not transfer or distribute (whether by rental, sale, licence, loan or otherwise) all or any part of the mtribes Platform to any other person; or
(b) not, nor permit others to, decompile, reverse engineer or dissemble any the mtribes Platform except to the extent permitted by, and in accordance with, law.
Infringements by third parties
10.11 The Client shall notify Deltatre in writing promptly upon becoming aware of any infringement of any unauthorised use of any mtribes Platform and shall provide reasonable co-operation and assistance to Deltatre in connection with any claim or suit that Deltatre brings in relation to such infringement or unauthorised use.
11. Data Protection
11.1 Where personal data is being processed under this Agreement, the Parties shall comply with their respective obligations set out in the data protection addendum in Schedule 1.
12.1 Subject to Clauses 12.2 and 12.3 and subject to the limitations and exclusions of liability in Clause 19, Deltatre shall indemnify the Client against (i) damages awarded by a court of competent jurisdiction; (ii) amounts paid in settlement to a third party with Deltatre’s written approval; and (iii) reasonable expenses (including reasonable legal expenses) suffered or incurred by the Client in respect of any third party claim that the Client’s use of the mtribes Platform (save in respect of any third party or open source elements) infringes any copyright, rights in confidential information or trade secret of any third party enforceable anywhere in the world or any patent of any third party enforceable in the United Kingdom (“Third Party Infringement Claim”).
12.2 The indemnity at Clause 12.1 is provided on the condition that the Client informs Deltatre of each relevant claim reasonably promptly upon becoming aware of it, does not admit liability or settle any relevant claim without Deltatre’s prior written consent, gives Deltatre full control of running, defending and settling each relevant claim, gives Deltatre at Deltatre’s expense such information and assistance in relation to the relevant claim as Deltatre may reasonably request and takes (and has taken) reasonable steps to mitigate all damages, costs, losses and expenses for which the Client seeks indemnification.
12.3 Deltatre shall have no obligation or liability under Clause 12.1 to the extent that the infringement or alleged infringement arises from:
(a) the combination, operation, or use of any of the mtribes Platform with products, services, information, materials, technologies, business methods or processes not provided by Deltatre to the Client or expressly authorised by Deltatre;
(b) modification to any of the mtribes Platform made by anyone other than Deltatre or Deltatre personnel;
(c) use of the mtribes Platform other than in accordance with this Agreement;
(d) the Client Content being infringing; or
(e) use of an mtribes Platform where a non-infringing version or release of that mtribes Platform was offered by Deltatre to the Client that would have avoided the claim or infringement and the Client did not promptly implement the non-infringing version or release.
12.4 If Deltatre reasonably believes that any of the mtribes Platform might infringe a third party’s Intellectual Property Rights, Deltatre may at its expense and option:
(a) replace or modify the mtribes Platform (or any part of the mtribes Platform) to make the mtribes Platform non-infringing;
(b) obtain a licence from the relevant third party for the Client to continue to use the mtribes Platform; or
(c) terminate this Agreement (or the licence to the Client of the relevant mtribes Platform) affected by such infringement by giving the Client written notice.
12.5 Clauses 12.1 to 12.4 set out the Client’s sole and exclusive remedy and Deltatre’s entire liability for Third Party Infringement Claims. Clauses 11.1 to 11.4 shall not apply where the mtribes Platform and Services are provided as a Free Trial.
12.6 The Client shall indemnify Deltatre against all losses, costs, expenses and damages that Deltatre suffers or incurs as a result of any claim by a third party that Deltatre’s, Deltatre personnel’s and/or Deltatre subcontractor’s use of Client Content in accordance with this Agreement infringes the Intellectual Property Rights or rights in confidential information or trade secrets of a third party.
13.1 A Party may terminate the whole of this Agreement immediately by giving notice in writing to the other Party if the other Party:
(a) suffers an Insolvency Event; or
(b) commits any breach of Clause 21 (Anti-bribery).
13.2 A Party may terminate the whole of this Agreement immediately by giving notice in writing to the other Party if the other Party is in material Default of this Agreement and has failed to remedy such Default (where such Default is remedial) within 30 days following notice by the terminating Party of the Default.
13.3 Deltatre may terminate this Agreement immediately by giving notice in writing to the Client if:
(a) Deltatre has:
(i) given the Client written notice that payment is overdue, specifying the amount that is overdue and informing the Client that, if payment is not made within ten (10) days, Deltatre may terminate; and
(ii) the Client has failed to pay the overdue amount within ten (10) days after receipt of Deltatre’s written notice under Clause 13.3(a); or
(b) Deltatre has suspended the provision of any of the mtribes Platform and/or Services in accordance Clause 13 and (save in respect of Clause 14.1(f)) such suspension has continued for a period of more than 30 days.
13.4 Deltatre may terminate this Agreement for any reason by giving at least 30 days’ notice in writing to the Client, such termination to take effect on the last day of the month in which that 30 day period expires.
14.1 Deltatre may suspend the provision of and the Client’s use of the mtribes Platform and the Services (in whole or in part) under this Agreement if:
(a) the Client is in material Default of this Agreement or circumstances arise that entitle Deltatre to terminate this Agreement;
(b) any payment from the Client to Deltatre under this Agreement is not paid by due date or Deltatre is unable to take payment through its payment gateway promptly following invoicing;
(c) Deltatre is entitled to or directed by a court or regulator to suspend performance under applicable law;
(d) in Deltatre’s opinion, suspension is necessary to safeguard the integrity and security of Deltatre’s
(or its other clients’) information and communications systems;
(e) the Client fails to use the mtribes Platform in compliance with the Documentation or the Client’s use of the mtribes Platform impacts the stability of the mtribes Platform or any Deltatre’s other clients who use the mtribes Platform; or
(f) in Deltatre’s opinion, suspension is necessary to prevent or limit Deltatre (or its other clients’) incurring criminal or civil liability or damage to Deltatre’s (or its other clients’) reputation or goodwill.
14.2 Where reasonably possible, Deltatre shall give the Client prior written notice of any suspension.
14.3 If Deltatre suspends the provision of any Services under Clause 14.1, this shall not prevent Deltatre from subsequently terminating this Agreement under Clause 13 or in accordance with the law.
14.4 In addition to Clause 14.1, Deltatre may suspend access to specific Authorised Client Users where such Authorised Client Users fail to comply with the terms of this Agreement.
15. Consequences of termination
15.1 Termination or expiry of this Agreement shall not affect any rights, obligations, remedies or liabilities that accrued before such expiry or termination.
15.2 On termination or expiry of this Agreement:
(a) the Client’s right to access and use the mtribes Platform shall immediately cease, save that Deltatre shall make available the Client Content which is hosted on the mtribes Platform for a period of 30 days from such termination or expiry to enable the Client to retrieve such Client Content; and
(b) the Client shall immediately pay any outstanding Fees (including overages) applicable to the provision of the mtribes Platform and the Services.
15.3 Following expiry of 30 days from termination or expiry of this Agreement, Deltatre shall endeavour to delete all Client Content hosted on mtribes Platform (save as it may be required by law to retain a copy of such Client Content).
16. Force Majeure
16.1 Neither Party shall be liable for any failure to perform or delay in the performance of its obligations under this Agreement or for any other breach of this Agreement to the extent that such failure, delay or breach is due to Force Majeure. This Clause 16.1 shall not affect any of the Client’s payment obligations which shall continue in full force and effect.
16.2 The Party whose performance is affected by Force Majeure shall:
(a) give the other Party written notice of the Force Majeure as soon as reasonably practicable after the Force Majeure occurs, including the nature of the Force Majeure and where reasonably practicable, the impact the affected Party anticipates the Force Majeure will have on its ability to meet its obligations under this Agreement;
(b) take reasonable steps (without being obliged to incur any additional expenditure or cost) to mitigate the effect of the Force Majeure on its performance under this Agreement; and meet its obligations under this Agreement despite the Force Majeure; and
(c) keep the other Party regularly informed of its progress in resuming full performance of its obligations under this Agreement.
16.3 Neither Party is liable for any costs or expenses of the other Party arising as a result of any Force Majeure.
16.4 The Client will not be required to pay the Fees where Deltatre fails to provide the mtribes Platform and Services due to Force Majeure.
16.5 If a Force Majeure prevents Deltatre from performing substantially all of its obligations under this Agreement for a continuous period of seventy-five (75) Business Days, either Party may terminate this Agreement on fifteen (15) days’ written notice to the other Party.
17. General warranties
17.1 Each Party warrants and undertakes to the other that:
(a) it has all necessary, power and authority to enter into this Agreement; and
(b) there is no pending or, to its knowledge, threatened action, suit or proceeding before any court, tribunal, governmental body, agency or official or any arbitrator that purports to draw into question or is likely to affect the legality, validity or enforceability of this Agreement or its ability to perform its obligations under this Agreement.
17.2 Save as set out in Clause 4.1, the mtribes Platform and Services shall be provided on an ‘as is’ and ‘as available’ basis. In particular, Deltatre does not warrant that the mtribes Platform and Services will meet the Client’s specific requirements or will be uninterrupted, timely, secure, or error-free; that any information relating to, or results that may be obtained from, the use of the mtribes Platform and Services will be accurate, complete, or reliable; or that any errors in the mtribes Platform and Services will be corrected.
18.1 Each Party acknowledges that the Confidential Information of the other Party is valuable to the other Party.
18.2 Each Party undertakes:
(a) to treat the other Party’s Confidential Information as confidential;
(b) not to disclose the other Party’s Confidential Information to any person except as expressly permitted under Clause 18.3; and
(c) not to use the other Party’s Confidential Information for any purpose other than for performing its obligations or exercising its rights under this Agreement.
18.3 A Party (the recipient Party) may disclose the other Party’s (the disclosing Party’s) Confidential Information:
(a) with the prior written consent of the disclosing Party;
(b) on a confidential basis to the recipient Party’s professional advisers, auditors and bankers;
(c) to the recipient Party’s employees and authorised contractors (and where Deltatre is the recipient Party, subcontractors) who need to know that Confidential Information for the purposes of the recipient Party performing its obligations or exercising its rights under this Agreement provided that such persons have entered into written confidentiality undertakings in respect of the disclosing Party’s Confidential Information that are equally protective as this Clause 18;
(d) as required by law, including to comply with an order of a court of competent jurisdiction, an order or direction of a governmental or regulatory authority or the rules of any stock exchange on which shares of the relevant Party are traded, provided that, to the extent legally permissible, the recipient Party gives the disclosing Party prior written notice of such requirement and the scope of such disclosure is limited to the extent required by the relevant law.
18.4 Clause 18.2 shall not apply to Confidential Information:
(a) that is in the public domain otherwise than as a result of a breach of a confidentiality obligation by any person;
(b) that the recipient Party obtains from a third party, provided the third party is not under any confidentiality obligation to any person in respect of that information;
(c) that the recipient Party can demonstrate was already in its possession at the time of disclosure to the recipient Party by the disclosing Party, provided the recipient Party does not owe a separate obligation of confidentiality to any person in relation to that information; or
(d) to the extent it was independently developed by the recipient Party without reference to use of the other Party’s Confidential Information.
18.5 Subject to Clause 18.6 and save in respect of Client Content, on expiry or termination of this Agreement, the recipient Party shall promptly deliver to the disclosing Party or delete so that they are irretrievable all copies of the disclosing Party’s Confidential Information (in any format) which are:
(a) in the recipient Party’s possession, power or control; or
(b) in the possession, power or control of persons who received such information from the recipient Party under Clause 18.3(a), 18.3(b), or 18.3(c).
18.6 The obligation in Clause 18.5 does not apply to the extent that the recipient Party (or person who has received Confidential Information from the recipient Party) is required by law to retain a copy of that Confidential Information. To the extent the recipient Party is required by law to retain a copy of any of the disclosing Party’s Confidential Information, it shall keep that Confidential Information secure and shall not use it for any purpose other than to comply with the relevant law.
18.7 The Client agrees that Deltatre or its Affiliates shall be entitled to name the Client (and use its trademarks) in any marketing or publicity materials relating to the mtribes Platform or Deltatre’s or its Affiliates’ business.
19. Limitations and exclusions of liability
19.1 Neither Deltatre nor the Client limits or exclude its liability under this Agreement for:
(a) death or personal injury caused by its negligence;
(b) fraud or fraudulent misrepresentation; or
(c) any statutory or other liability that cannot be excluded or limited under applicable law.
19.2 Neither Party shall be liable to the other for any of the following losses arising out of or in connection with this Agreement, whether in contract, tort (including negligence), for breach of statutory duty or under any other legal basis:
(a) loss of profits or account of profits;
(b) loss of sales or business;
(c) failure to achieve or loss of anticipated savings;
(d) work stoppage or business interruption;
(e) wasted management time;
(f) loss of or damage to goodwill;
(g) computer failure or malfunction;
(h) cost of procurement of substitute services;
(i) loss of use or corruption of software, data or information; or
(j) any indirect or consequential loss.
19.3 Subject to Clause 19.5 and save where the mtribes Platform and Services are provided as a Free Trial:
(a) where the Subscription Period is less than or equal to 12 months, each Party’s total and aggregate liability for all claims arising under or in connection with this Agreement (whether the liability in question arises in contract, tort (including negligence), for breach of statutory duty, under any indemnity and/or on any other legal basis) in each Subscription Period shall be limited to the Fees paid by the Client in that Subscription Period; and
(b) where the Subscription Period is greater than 12 months, each Party’s total and aggregate liability for all claims arising under or in connection with this Agreement (whether the liability in question arises in contract, tort (including negligence), for breach of statutory duty, under any indemnity and/or on any other legal basis) in each Contract Year shall be limited to the Fees paid by the Client in that Contract Year.
19.4 Where the mtribes Platform and Services are provided as a Free Trial, and subject to Clause 19.5, Deltatre’s total and aggregate liability for all claims arising under or in connection with this Agreement (whether the liability in questions arises in contract, tort (including negligence), for breach of statutory duty, under any indemnity and/or on any other legal basis) shall be limited to £[2,000].
19.5 Clause 19.3 shall not limit the Client’s liability in respect of any Fees payable to Deltatre under this Agreement. No amount payable in respect of the items set out in this Clause 19.5 shall count towards the caps on liability under Clause 19.3.
19.6 All warranties, terms, conditions, undertakings, representations and obligations implied by statute, common law, trade usage, course of dealing or otherwise are excluded to the fullest extent permitted by law.
19.7 The Parties agree that each of Clauses 19.1, 19.2, 19.3, 19.4, 19.519.5 and 19.6 and each sub-clause within those Clauses, are separate and independent exclusions and limitations applying and surviving even if one or more of such Clauses or sub-clauses is held unreasonable, void or unenforceable for any reason.
20.1 Formal notices under this Agreement must be in writing and sent by first class post, personal delivery or email to the applicable address on the front cover of this Agreement and marked for the attention of the person or office holder specified in the Order Form. Each Party may change its nominated address and/or nominated person or officeholder by giving the other Party notice of the change in accordance with this Clause 20. With effect from the date of receipt of such notice, the other Party shall deliver all formal notices under this Agreement to the address, person or officeholder specified in the notice.
20.2 A formal notice sent in accordance with Clause 20.1 will be deemed to be received:
(a) in the case of a first class letter, on the second Business Day after posting;
(b) in the case of personal delivery, on receipt;
(c) in the case of an email sent on a Business Day before 5pm (time to be measured in the place of receipt), on the same Business Day the email was sent, unless Clause 20.3 applies; and
(d) in the case of an email sent on a Business Day after 5pm (time to be measured in the place of receipt) or sent on a day that is not a Business Day, on the next Business Day after the email was sent, unless Clause 20.3 applies.
20.3 If the sender of an email notice receives an error message relating to the sending of the email, the email notice shall be deemed not to have been received, and the sender must use an alternative method of delivery in accordance with this Clause 20.
21.1 A Party shall not:
(a) offer, give, receive or solicit from any person anything of value or exert undue interference on any person to obtain, influence, induce or reward (or attempt to obtain, influence, induce or reward, any improper advantage in connection with this Agreement; or
(b) offer, give or agree to give any gift, commission or consideration of any kind to any personnel of the other Party as an inducement or reward for any act or omission in relation to this Agreement.
21.2 A Party undertakes to comply with all anti-bribery and anti-corruption laws that apply to that Party.
22.1 Further acts and documents: Each Party shall promptly do all further acts and execute and deliver all further documents required by law or reasonably requested by the other Party to give effect to this Agreement.
22.2 Assignment: The Client shall not assign any or all of its rights under this Agreement to any person without Deltatre’s prior written consent which may be given or withheld in Deltatre’s absolute discretion. Deltatre may assign its rights under this Agreement to any person provided Deltatre gives the Client thirty (30) days’ prior written notice of the assignment.
22.3 Novation: Deltatre may transfer by novation all of its obligations under this Agreement to any person (the “Transferee”) provided Deltatre gives the Client thirty (30) days’ prior written notice of the novation and (unless contrary to confidentiality obligations owed to the Transferee) the identity of the Transferee. The Client consents to a novation by Deltatre that is in accordance with Clause 22.3.
22.4 A transfer by way of novation will take effect on the date that Deltatre and the Transferee enter into a novation agreement (the “Transfer Date”). With effect on and from the Transfer Date: (i) the original parties to this Agreement shall be released from further obligations to one another under this Agreement, excluding obligations and liabilities in respect of acts or omissions before the Transfer Date; (ii) the Transferee and the Client will assume obligations to one another and acquire rights against each other under this Agreement as if they entered into this Agreement on the Transfer Date; and (iii) this Agreement shall be read and construed as if all references to Deltatre were deleted and replaced with references to the Transferee.
22.5 Relationship between the Parties: Nothing in this Agreement is intended to create a partnership or the relationship of principal and agent or employer and employee between the Parties. Neither Party has the authority or power to bind, to contract in the name of or to create a liability for the other in any way or for any purpose, except as expressly stated.
22.6 Cumulative remedies: Except as expressly stated otherwise in this Agreement, the rights, powers and remedies provided in this Agreement are cumulative and are not exclusive of any rights, powers or remedies provided by law or under this Agreement, and the exercise of any of the rights, powers and remedies provided in this Agreement will not prejudice the exercise of any other right, power or remedy under this Agreement or existing at law.
22.7 Third Party Rights: A person who is not a Party to this Agreement has no rights under the Contracts (Rights of Third Parties) Act of 1999 to enforce or to enjoy the benefit of any term of this Agreement.
22.8 Illegality and severance: If any provision of this Agreement is declared by a competent court or body to be illegal, invalid or unenforceable, or if any enactment is passed that renders any provision of this Agreement illegal, invalid or unenforceable:
(a) this shall not affect or impair the legality, validity or enforceability of the remaining provisions; and
(b) Deltatre and the Client will endeavour, without delay to negotiate and to agree a substitute provision which is legal, valid and enforceable and which achieves, to the greatest extent possible, the same effect as would have been achieved by the illegal, invalid or unenforceable provision.
22.9 Entire Agreement: This Agreement constitutes the entire understanding between the Parties relating to its subject matter and, except as may be expressly referred to in this Agreement, supersedes all prior representations, writings, negotiations or understandings (written or oral) relating to the same subject matter. In entering into this Agreement, each Party agrees that it does not rely on and shall have no remedy in respect of any statement, representation, warranty or understanding other than those expressly set out in this Agreement. Each Party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement expressly set out in this Agreement. Nothing in this Agreement is intended to exclude or limit a Party’s liability for fraudulent misrepresentation.
22.10 Waiver: Neither Party will be deemed to have waived any right under this Agreement unless the waiver is in writing and signed by the Parties. Any failure or delay by a Party to exercise any right or power under this Agreement will not operate as a waiver of that right or power. Any waiver by a Party of any breach, or failure to exercise any right, under this Agreement will not constitute a waiver of any subsequent breach or continuing right.
22.11 Counterparts: This Agreement may be executed in any number of counterparts and by the different Parties on separate counterparts. This has the same effect as if the signatures on the counterparts were on a single copy of the relevant document.
22.12 Variations: Subject to Clause 4.2, no amendment or variation of this Agreement shall be effective unless it is in writing and signed by authorised representatives of Deltatre and the Client.
22.13 Modern slavery: Each Party shall comply with the Modern Slavery Act 2015 and all applicable anti-slavery and human trafficking laws in force from time to time.
22.14 Governing law: This Agreement and all disputes and claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by English law.
22.15 Arbitration: Subject to Clause 22.16, any dispute arising out of or in connection with this Agreement, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration under the London Court of International Arbitration Rules (“Rules”), which Rules are deemed to be incorporated by reference into this Clause 22.15, and for the purpose of such arbitration:
(a) The number of arbitrators shall be three.
(b) The place of arbitration shall be London.
(c) The language to be used in the arbitral proceedings shall be English.
22.16 Nothing in Clause 22.15 shall restrict either Party’s freedom to:
(a) seek recourse to the courts to obtain an interim order for the purpose of preserving or protecting Intellectual Property Rights and/or Confidential Information or trade secrets; or
(b) exercise a right to terminate this Agreement in accordance with this Agreement or law.
Definitions and interpretation
1. In this Agreement, the following words and expressions shall have the following meanings:
“Affiliate” means, with respect to a Party, any corporation, firm, partnership, or other entity, which directly or indirectly owns, is owned by or is under common ownership with such Party, and any person, corporation, firm, partnership, or other entity actually controlled by, controlling, or under common control with such Party. For purposes of this definition, ownership shall mean the ownership of securities representing at least 50% of the voting power of the relevant entity on matters submitted to the equity holders of such entity generally, or otherwise having the ability to direct the affairs of such entity;
“Applicable Data Protection Law”: all worldwide data protection and privacy laws and regulations applicable to the personal data in question, including, where applicable, EU Data Protection Law
“Authorised Client User” means an employee or independent contractor of the Client who is authorised by the Client to access and use the mtribes Platform in accordance with this Agreement;
“Business Day” means a day other than a Saturday, Sunday or a public holiday in Australia;
“Client” means the party identified as such in the Order Form;
“Client Content” means the materials, content, data and other information in whatever form that either:
(a) the Client submits or makes available to Deltatre through the mtribes Platform including data that it retrieves from other sources through the mtribes Platform; or
(b) is generated by the mtribes Platform as a result of its use by the Client (other than mtribes Generated Code).
Client Content shall not include any non-identifiable or aggregated data or information derived from the Client Content by or on behalf of Deltatre;
“Confidential Information” means information that is disclosed before or after the date of this Agreement by or on behalf of one Party (the disclosing Party) to the other Party (the recipient Party):
(a) that is marked as confidential;
(b) that the disclosing Party identifies as confidential to the recipient Party before, during or promptly after disclosure to the recipient Party;
(c) that the recipient Party should reasonably have understood to be confidential, given the manner or circumstances of its disclosure, whether or not that information is marked as confidential or was identified as confidential; or
(d) that relates to the business, affairs, products, trade secrets, technology, knowhow, methodology of supply, developments, finances, employees, customers or service providers of the disclosing Party or its Affiliates. For the purposes of this Agreement, Deltatre’s Confidential Information includes the mtribes Platform and the Documentation and the Client’s Conditional Information includes the Client Content;
“Contract Year” means:
(a) for all Contract Years, other than the last Contract Year, a period of twelve calendar months starting on the Start Date or an anniversary of the Start Date; and
(b) for the last Contract Year, the period from the relevant anniversary of the Start Date to the date of termination or expiry of this Agreement;
“Default” means any breach of contract, negligence or other act, omission or event that gives rise to the liability in question;
“Deltatre” means the party identified as such in the Order Form;
“Deltatre Billing Contact” means the individual identified as such in the Order Form;
“Documentation” means the documentation (as, subject to Clause 4.2, may be updated by Deltatre from time to time) which describes:
(a) the functional specification for the mtribes Platform;
(b) the service description for the Services;
(c) the service levels applicable to the mtribes Platform and Services;
(d) the Service Plans; and
(e) any other materials or policies relating to mtribes.
as set out in www.mtribes.com or such other site as Deltatre notifies the Client from time to time;
“End Date” means the date of expiry or termination of this Agreement;
“Fees” means the fees for the provision of the mtribes Platform and Services for the applicable Service Plan as calculated in accordance with the Documentation together with any other charges referred to this Agreement;
“Free Trial” means where Deltatre has agreed to provide the mtribes Platform and Services to the Client on a limited time basis for no charge;
“Force Majeure” means the occurrence of any cause or event that is beyond the reasonable control of the affected party, provided that the affected party is without fault in causing or failing to prevent such occurrence;
“Insolvency Event” means in relation to a person, that the person ceases or threatens to cease to carry on business, is unable to pay its debts within the meaning of the Insolvency Act 1986 section 123 (without the need for a determination by a court), has an administrator, receiver, administrative receiver or manager appointed over the whole or any part of its assets, enters into any composition with creditors generally, or has an order made or resolution passed for it to be wound up (otherwise than in furtherance of any scheme for solvent amalgamation or solvent reconstruction) or undergoes any similar or equivalent process in any jurisdiction or undergoes any other arrangement which affects the rights of creditors;
“Intellectual Property Rights” means all intellectual property rights, including patents, supplementary protection certificates, petty patents, utility models, trade marks, database rights, rights in designs, copyrights (including rights in computer software) and topography rights (whether or not any of these rights are registered, and including applications and the right to apply for registration of any such rights) and all rights and forms of protection of a similar nature or having equivalent or similar effect to any of these which may subsist anywhere in the world, in each case for their full term, and together with any renewals or extensions;
“mtribes Platform” means software (whether in object code or source code form and ail program interfaces, tools or object libraries embedded in that software) features, know-how, design patterns, experience designs, visual designs, user-interfaces, workflows, files, documents, records, notes and other works in any format that form:
(a) the mtribes platform as described in the Documentation;
(b) the mtribes SDK;
(c) the mtribes CLI;
(d) the mtribes Generated Code; and
(e) all new releases, updates, upgrades and modifications to any of the items referred to in (a) or (d) above made by or behalf of Deltatre or its third party licensors from time to time;
“mtribes” means the platform provided by Deltatre that provides real-time, targeted UX control and data-driven personalisation of the Client’s end-user applications;
“mtribes CLI” means the build time command line interface for mtribes as described in the Documentation;
“mtribes Generated Code” means the Client-specific build/run time integration code generated via the mtribes CLI;
“mtribes SDK” means the runtime software development kit for mtribes as described in the Documentation;
“Order Form” means the order form agreed and executed by the parties which sets out the details of the parties, Service Plans and other relevant information which is specific to the mtribes Platform and Services which the Client will receive;
“Party” means a party to this Agreement;
“Service Plan” means the service plan which Deltatre offers to its clients in relation to mtribes which sets out the scope of use of the mtribes Platform and Services (including the number of monthly active users of the Client, features and extras). The Service Plans are described in the Documentation and the current Service Plan applicable to the Client is set out in the Order Form;
“Services” means the provision of support services by Deltatre in respect of the mtribes Platform as described in the Documentation;
“Service Levels” means the service levels for the applicable Service Plan which apply to the provision of mtribes Platform and Services. Service Levels are set out in the Documentation;
“Start Date” means the date on which the Client accepts this Agreement);
“Subscription Period” means the subscription period set out in the Order Form;
“Term” means the period starting on the Start Date and ending on the End Date;
“Value Added Tax” or “VAT” means value added tax as provided for in the Value Added Tax Act 1994;
“Virus” means any computer virus, Trojan horse, worm, software bomb or similar item intending to destroy, damage or corrupt an IT system; and
“You” means the person entering into this Agreement on behalf of the Client.
2. In this Agreement:
(1) a reference to a provision of law is a reference to that provision as extended, applied, amended or enacted from time to time and includes any subordinate legislation;
(2) the singular includes the plural and vice versa;
(3) words denoting persons include bodies corporate and unincorporated associations of persons;
(4) references to this Agreement or DPA or any other agreement or document are to this Agreement DPA or such other agreement as the same may be varied, amended, supplemented, restated, renewed, novated or replaced from time to time;
(5) references to a Party include a reference to its successors and assigns;
(6) the word “including” is by way of illustration and emphasis only and does not operate to limit the generality or extent of any other words or expressions;
(7) references to Clauses are to Clauses of this Agreement;
(8) the headings in this Agreement are for ease of reference and do not affect its interpretation.
Schedule 1 – Data Processing Addendum
Data Processing Agreement
This “Data Processing Agreement” (the DPA) forms part of the Agreement and sets the principles and general rules under which Deltatre shall provide services related to the processing of personal data to the Client.
Whereas Deltatre and the Client have executed an agreement together with the Order Form or any other agreement for the provision of the mtribes Platform and the associated Services by Deltatre to the Client (the “Agreement”).
Whereas the Client Content may include personal data and the Parties enter into this DPA which includes certain supplemental rules to be applied exclusively to Deltatre’s processing of personal data in providing mtribes Platform and associated Services.
Whereas this DPA is neither intended to alter the Clients’ obligations with respect to the Client Materials under the Agreement nor is a standalone agreement being only effective if Deltatre and the Client have signed an Agreement.
Now therefore the parties agree as follows:
Roles of the parties
Deltatre may process Personal Data as a separate and independent controller where it processes personal data relating to Client personnel and Client Authorised Users for the purposes described in Deltatre privacy notice – such purposes hereinafter referred to as “Deltatre Controller Purposes” and Deltatre shall comply with Applicable Data Protection Law in respect to such processing. Client shall provide a privacy notice to Client Authorised Users which provides information, including without limitation a description of the personal data collected, an explanation of how and for which purpose(s) personal data will be used or transferred to third parties (including for the Deltatre Controller Purposes and the Processing Purposes outlined below), and any disclosures that have been made, identifying Deltatre by name and providing Deltatre’s privacy notice available at this link.
Other than where it processes Client Data for the Deltatre Controller Purposes, Deltatre shall process Client Data only as necessary to perform its obligations under the Agreement and on the documented instructions from the Client, including with regard to transfers of personal data to a third country or an international organization (“Processing Purposes”), unless required to do so by Union or member state law to which Deltatre is subject. In such a case Deltatre informs the Client of that legal requirement before processing, unless that law prohibits such information on important grounds of public interest.
Description of Processing of Client Data for Processing Purposes
Subject matter of the processing: the Client Data is the subject matter of the data processing for the Processing Purposes.
Duration: the duration of the data processing under this DPA for the Processing Purposes is until termination of the Agreement between the Client and Deltatre, in accordance with its terms.
Nature and purpose of the processing: the Processing Purposes under this DPA include the provision of the mtribes Platform and associated Services to the Client. Deltatre provides a subscription to access and use the mtribes Platform (on a software-as-a-service basis only) as better described in the Agreement.
The Personal Data to be processed for the Processing Purposes concern the following categories of data subject in the Client Content: any end user of any Client’s end-user applications owned or controlled by the Client with respect to whom the Client is data controller and processes Personal Data via the mtribes Platform.
The personal data to be processed concern the following categories of data: Client Data means the personal data relating to end-users of Client end-user applications that is submitted for the processing through the mtribes Platform. The Client shall refrain from processing via the mtribes Platform any special categories of Personal Data (as defined under Article 9 of GDPR), Personal Data related to criminal convictions and offences (as defined under Article 10 of GDPR), Personal Data of minors, any individual financial data, individual health information or government-issued identification numbers.
As Data Processor Deltatre shall not disclose or communicate to third parties the Client Data processed under this DPA and shall refrain from contacting the Data Subject for Deltatre’s own business purposes. Deltatre guarantees the reliability of any person under Deltatre’s control who accesses the Client Data and ensures they have received adequate instructions and training with regard to the protection and management of such personal data. In line with the provision of the Agreement and pursuant to article 28 of the GDPR, Deltatre procures that every person under Deltatre’s control, who has access to Client Data, undertakes to maintain confidentiality, in addition to professional or statutory obligations of confidentiality, and are informed of any special need arising from the aforementioned DPA and the limitation of use to specific purposes.
Rights of Data Subjects and Cooperation
To the extent that the Client is unable to independently address a Data Subject request through its use of the mtribes Data Platform, Deltatre will assist the Client, at Client cost, and taking into account the nature of the processing, by appropriate technical and organizational measures, insofar as this is possible, for the fulfilment of the controller’s obligation to respond to any requests from Data Subjects relating to the processing of Client Data for the Processing Purposes under this DPA – including the exercise of the right to the portability of personal data processed under this DPA, pursuant to art. 20 of the GDPR, ensuring that the same can be transmitted in a structured format, commonly used and readable by any automatic device.
Deltatre can only correct, delete or block the processing of personal data for the benefit of the Client and when instructed to do so by the Client: should a Data Subject send directly to Deltatre a request relating to the processing of his/her Client Data, Deltatre must address the aforementioned request to the Client without any undue delay, unless EU or EU Member State requires otherwise. The Client is responsible for answering to any of such Data Subjects request.
Deltatre promptly notifies the Client any communication from the Supervisory Authority or Judicial Authority related to the processing of Client Data under this DPA, by sending a copy of the requests received and collaborates in order to ensure that all the rights provided for by the EU data Protection Law are respected. For sake of clarity, the Client is responsible to respond to such requests from the Supervisory Authority and Deltatre does not respond to that request except on documented instructions of the Client or as required by EU or EU Member State Law.
Deltatre provides reasonable cooperation, information and assistance to the Client – at Client’s cost- in order to satisfy the Client’s obligation to proceed with a Data Protection Impact Assessment related to the Client’s use of the mtribes Platform pursuant to art. 35 and ss of the GDPR. In its role as a processor, Deltatre provides reasonable assistance to the Client in ensuring compliance with the obligations set forth in Arts. 32-36 GDPR, with regard to the processing of Client Data for Processing Purposes, taking into account the state of the art, the costs of implementation and nature, scope and context and purpose of the processing and the information available to Deltatre.
Following expiry of 30 days from termination or expiry of this Agreement, Deltatre shall delete all the Client Data after the end of the provision of services relating to processing, and including any existing copies unless Union or Member State law requires storage of the personal data. Deltatre may retain a copy of such Client Data, for as long as liabilities and responsibilities can be derived from the performance of the provision of the Services.
Deltatre will notify the Client if a Data Breach occurred in respect of client Data, even with its Sub-Data Processor without undue delay from when it has become aware of it; the notification must contain all the requisites foreseen by the art. 33, paragraph 3 of the GDPR (the nature of the violations, the involved parties, the possible consequences and the new security measures implemented) to the extent those are available to Deltatre. Deltatre will provide the Client with reasonable cooperation in the adoption of necessary actions designed to limit the negative effects of the event and restore the previous situation – at Client’s cost unless the Data Breach is caused (i) by a failure of Deltatre to comply with the obligations that the EU Data Protection Law imposed directly solely on data processors and/or (ii) by an act of Deltatre outside of or contrary to Client’s lawfully instructions.
Taking into account the state of the art, the costs of implementation and the nature, scope, context and purpose of processing, as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, Deltatre shall adopt and implement the technical and organizational security measures, to ensure a level of security appropriate to the risk (of loss, alteration, unauthorised disclosure of, or access to the Client Data). The Client is responsible for reviewing the information made available relating to data security and making an independent determination as to whether the mtribes Platform meets Client’s requirements. Deltatre may make such changes to the technical and organizational security measures as Deltatre deems appropriate from time to time, but no such changes will reduce the overall level of protection for Client Data.
Upon Client reasonable request, and subject to the confidentiality obligations Deltatre makes available information to demonstrate compliance with the obligations laid down in this DPA. Not more than once a year the client may request reasonably in advance an audit – at Client’s cost- of the procedures relevant to protection of Client Data processed on behalf of the Client, also by sending delegated officials to the premises of Deltatre. Before the commencement of any such on-site audit, the Client and Deltatre shall mutually agree upon scope, timing and duration of the audit and the reimbursement rate for any expenses Deltatre incurs in the course of such audit. The process of such audit will be agreed by Client and Deltatre in a manner that does not disrupt, delay or interfere with Deltatre’s performance of its business activities and the Client shall procure that individuals carrying out the audit are subject to confidentiality obligations. For the sake of clarity, Deltatre can provide any current reports or statements of evidence issued by an independent third-party auditor, and/or any copies of the relevant external certifications provided by Deltatre Sub-Data Processor in lieu of the audit on third-party data centers.
Client’s responsibilities: the Client shall be responsible for (i) the security related to its environment and its database; (ii) the security relating to its configuration of the mtribes Platform and (iii) the use of the mtribes Platform and Services. In addition to, and without prejudice with to generality of the abovementioned, the Client shall be responsible for securing its account authentication credentials, protecting the security of the Client Data when in transit to and from the mtribes Platform and for taking any appropriate steps to securely encrypt or back up its Client Data.
Sub-Data Processor: The Client acknowledges and agrees that (i) Deltatre may retain Affiliates as Sub-Data Processor and (ii) Deltatre and its Affiliates may, subject to this Section, engage third parties Sub–Data Processor in connection with the provision of mtribes Products and Services and hereby consents to Deltatre’s use of Sub-Data Processor in respect of processing of Client Data for the Processing Purposes. The current list of Sub-Data Processor is available here:
Engagement of Sub-Data Processor: With regard to the appointment of a Sub-Data Processor for carrying out specific processing activities for the Processing Purposes, Deltatre or Deltatre’s Affiliates:
Enter into a written agreement imposing compliance with obligations and instructions that meet the requirements of article 28 of the GDPR, such obligations and instructions to be equivalent to those provided for in this DPA will be imposed on the Sub-Data Processor (to the extent that such obligations and instructions relate to the processing of Client Data on behalf of the Client for the Processing Purposes);
if the relationship with the Sub-Data Processor involves a transfer of Client Data that would be prohibited under EU Data Protection Law absent the applicable safeguards, ensure that the Standard Contractual Clauses – or any other equivalent safeguards- are at all relevant times incorporated into the agreement between Deltatre and the Sub- Data Processor. For this purpose, the Client hereby agrees that the Data Processor enters into the Standard Contractual Clauses as “data exporter” on behalf of the Client;
Restrict the access of the Sub-Data Processor to Client Data to what is strictly necessary for the Processing Purposes;
remain fully responsible towards the Client for the respect of the obligations deriving from this DPA for any act or omission of the Sub-Data Processor which involves a violation of the same, unless the Client has given direct instructions to the Sub-Data Processors.
For sake of clarity, sub-contracting in the meaning of this provision does not include ancillary services requested by Deltatre by third parties for the provision of the mtribes Platform and performance of the Services. These are, for example, telecommunication services, support for users – unless Deltatre has access to personal data –, cleaning, control or erasure of multimedia data. In order to safeguard data protection and security, Deltatre in any case concludes legitimate agreements with such third parties.
New Sub-Data Processor: Deltatre may at any time change and/or add Sub–Data Processor to the then current Sub-Data Processor. Each time Deltatre wishes to appoint a new Sub Data Processor in respect of the processing of Client Data for the Processing Purposes it will notify of the changes before the new Sub-Data Processor process any Client Data. If the Client has reasonable basis and well-founded concerns around data protection issues to object to Deltatre’s use of a new Data Sub- Processor, the Client shall notify Deltatre in writing within 5 business days after the receipt of Deltatre’s notice regarding such new Data Sub Processor. In the event that the Client objects in writing to a new Sub-processor(s) on a reasonable basis, Deltatre shall work with the Client in good faith to find commercially reasonable change in the provision of the Services which avoid the use of that proposed Sub-Data Processor. Where such change cannot be made within 30 days from Deltatre receipt of the objection, Deltatre may, at its discretion, decide to terminate the Agreement in accordance with Section 13.4 of the Agreement.
Without limitation to the responsibilities under the Agreement, the Client is solely responsible for: (i) complying with its obligations as Data Controller under Applicable Data Protection Law and any other obligations imposed by applicable laws to which the Client is subject (both in respect of the processing of Client Data and any personal data relating to Deltatre staff provided to the Client by Deltatre for the purposes of managing the relationship between the parties) ; (ii) the Client Data submitted to for the processing and subject to Deltatre’s obligations under the Agreement and this DPA; (iii) at any time obtaining from the Data Subjects all necessary consents under the Applicable Data Protection Law; (iv) at any time providing the Data Subject any notices required by Applicable Data Protection Law including sufficient information on the processing of their personal data; (v) comply with the principle of minimization and ensure that only the personal data which are relevant, adequate, and absolutely necessary for carrying out the purpose for which the data is processed are transmitted for the processing; (vi) ensuring that no special categories of Personal Data (as defined under Article 9 of GDPR) or Personal Data related to criminal convictions and offences (as defined under Article 10 of GDPR) or Personal Data of minors or similar sensitive information under other comparable laws or regulations (including without be limited to any individual financial data, individual health information or government issued identification numbers) are submitted for the processing; (vi) ensuring not to enable, directly or indirectly, any person or entity other than the Authorized Users to access and use the mtribes Products (or permit others to use) other than as described in the Agreement.
The Client shall: (i) conduct regular documented reviews of the Client Data and communicate to Deltatre the Client Data – if any- that are no longer required to be processed and need to be deleted accordingly; (ii) in any case, at any time, promptly notify Deltatre in the case some Client Data are no longer required to be processed asking to Deltatre to delete such data accordingly; (iii) respond to any request from the Data Subjects exercising data subjects’ right under Chapter III of the GDPR, and (iv) in the case a personal data breach occurred, notify at its costs, the Supervisory Authority and Data Subject of the occurred data breach.
Liability: The Client shall indemnify and hold harmless Deltatre (and each of their respective officers, employees and agents) from any losses, costs, expenses, fines and/or sanctions, damages and any liability of any kind (be it foreseeable, contingent or not) arising from or in connection with the processing and/or any violation of applicable laws, including Applicable Data Protection Laws due to a failure to comply with the obligations imposed by Applicable Data Protection Law on controllers.
Deltatre shall indemnify and hold harmless the Client (and each of their respective employees and agents) from any loss, cost, expense, fine and / or sanction, damage and any liability of any kind (be it foreseeable, contingent or not) arising from or in connection (i) with any failure of Deltatre to comply with the obligations imposed by EU Data Protection Law specifically directed solely to the processors and in respect of its processing of Client Data for the Processing Purposes; or (ii) with an act of Deltatre which is outside or contrary to the lawful instructions issued by the Client in respect of the processing of Client Data, provided that in any case Deltatre shall be exempted for any responsibility if the event giving rise to the damage is not under the control of Deltatre.
Parties are aware that both the Client and Deltatre may be held liable for the entire damage caused by the processing of Client Data for the Processing Purposes in order to ensure effective compensation of the Data Subjects. In the case Deltatre paid full compensation for the damage caused by the processing activities carried out on behalf of the Client in relation to Client Data, it is entitled to claim back from the Client that part of the compensation corresponding to the Client’s part of responsibility for the damages.
The limitations and exclusions of liability outlined in Clause 19 of the Agreement shall apply to the above indemnities (to the extent permitted by Clause 19 of the Agreement, and by applicable law).
International Transfers: Deltatre will not transfer Client Data outside the European Economic Area (“EEA”) unless it takes such measures as are necessary to provide adequate protection for such personal data as envisaged under EU Data Protection Law.
Amendments: Deltatre may from time to time amends this DPA if Deltatre reasonably consider to be necessary in order to address the requirements of any applicable law.
Severability: Should any provision of this DPA be or become invalid or unenforceable, then the remainder of this DPA shall remain valid and in force. The invalid or unenforceable provision shall be replaced by a valid and enforceable provision that comes as closely as possible to the parties’ initial intent.
Assignment: This DPA may be assigned only in connection with a valid assignment pursuant to the Agreement. Should the Agreement be assigned by a party in accordance with section 21.1 of the Agreement, this DPA will be automatically assigned by the same party to the same assignee.
Duration: This DPA starts from the date of the Client signed the Agreement and will remain in force until the termination or expiration of such Agreement in accordance with the provision of the Agreement.
Law and Jurisdiction: This DPA and any dispute or claim arising from it or in relation to the subjects of the present DPA must be governed in accordance with the law and the jurisdiction governing the Agreement.
The following terms used in this Agreement and in the Annexes thereto shall have the following meanings:
“Applicable Data Protection Law”: all worldwide data protection and privacy laws and regulations applicable to the personal data in question, including, where applicable, EU Data Protection Law.
“Data Controller”, “Data Processor”, “Data Subject”, “personal data” and “processing” have the meaning given by the EU Data Protection Law.
“EU Data Protection Law”: (i) 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 (General Data Protection Regulation) (the “GDPR”); (ii) the EU e-Privacy Directive (Directive 2002/58/EC); and (iii) any and all applicable national data protection laws made under or pursuant to (i) or (ii); in each case as may be amended or superseded from time to time.
“Technical and organizational security measures” measures intended to protect personal data from accidental or illegal destruction or loss, alteration, disclosure or unauthorized access, in particular when the processing involves the transmission of data on a network, as required by the applicable law in Art. 32 GDPR and all further technical and organizational measures necessary to guarantee a level of safety appropriate to the risk, taking into account the nature, object, context and purpose of the treatment implemented, as well as the risk of various probabilities and severity for rights and freedoms of natural persons.
“Data breach”: a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, personal data transmitted, stored or otherwise processed;
“Supervisory Authority”: an independent public authority which is established by a Member State pursuant to Article 51 responsible for monitoring the application of the GDPR;
“Sub- Data Processor”: any processor appointed for the processing (i) by the Data Processor, or (ii) by any other “sub-data Processor” of processing personal data on behalf of the Data Processor, always in accordance with the instructions of the Data Controller;
“Standard Contractual Clauses”: standard contractual terms, for the transfer of Personal Data from a Data Controller located in European Economic Area to people established in third countries, adopted by the European Commission pursuant to the Commission Decision of 5 February 2010 on standard contractual clauses for the transfer of personal data to processors established in third countries under Directive 95/46/EC of the European Parliament and of the Council as may be amended and/or replace by the European Commission from time to time.