Master Service Agreement
This Master Service
Agreement (“MSA”)
forms an integral
part of the Sales Order executed between the Customer (as defined in the Sales Order) and the
Company or its Affiliates (as defined in
the Sales Order), for providing software as a service
based solutions for implementing customer
relationship management (CRM) and consumer loyalty
as further defined
in the mutually agreed upon the
Sales Order executed by and between the Company and the Customer.
If you are entering into this Sales
Order accompanied by this MSA on behalf of a legal entity, you represent and
warrant that you are authorized to bind that entity to this Agreement.
The Customer has agreed to the terms of this MSA, by executing the Capillary Sales Order, that references this MSA. Company and the Customer shall be referred to as “Parties” collectively and “Party” individually.
1. Definitions
1.1. “Affiliate” means, for a Party, any other person that controls, is controlled by, or under common control with, the Party. For the purposes of this definition, the term “control” means the direct or indirect power to direct the affairs of the other person through at least 50% of the shares, voting rights, participation, or economic interest in this person.
1.2. “Agreement” means and includes the Sales Order its annexures, any applicable product specific licensing terms, together with any exhibits, schedules, addendums attached thereto, as modified and amended from time to time.
1.3. “Claim” means a claim, action, complaint, or legal regulatory body, administrative or judicial proceeding filed against a Party
1.4. “Company” shall mean the Company defined in the Sales Order
1.5. “Confidential Information” means non-public or proprietary information about a Disclosing Party’s business-related technical, commercial, financial, employee, or planning information that is disclosed by the Disclosing Party to the
other Party, the Receiving party in connection with the Agreement, and (a) is
identified in writing as confidential at the time of
disclosure, whether in printed,
textual, graphic, or electronic form; or
(b) is not identified as confidential at the time of disclosure but is by its
nature confidential or the receiving Party knows, or ought reasonably to know,
is confidential (which may include Customer content). Any Company technology
and the terms and conditions of the Agreement will be deemed Confidential Information of Company without
any marking or further designation. Any Customer data will be deemed Confidential
Information of Customer without any marking or further designation.
“Confidential Information” does not include information that: (i) has become public knowledge through no fault of the Receiving
Party; (ii) was known to the Receiving Party, free of any confidentiality
obligations, before its disclosure by the disclosing Party; (iii)
becomes known to the Receiving Party, free of any confidentiality obligations,
from a source other than the Disclosing Party; or (iv) is independently developed by the Receiving Party without use of Confidential Information. (v) is approved for release, disclosure,
dissemination or use by written authorization from the Disclosing Party; (6) or
is required to be disclosed pursuant to a requirement of a Governmental Agency
or Law so long as the Parties provide each other, subject to permissibility of
law, with timely prior written Notice of such requirement and provide all
reasonable co- operation in regard to taking protective action against such
disclosure requirement.
1.6. “Customer” shall mean the Customer defined under the Sales Order
1.7. “Customer Data” means all content, information and data in any format, that is submitted, uploaded or otherwise made available by the Customer to or through the Product/Services to the Company
1.8. “Customer Content” means any document, material, data or information of any type that is uploaded or submitted by or on behalf of Customer to the Company Software or that is generated or processed by or on behalf of Customer using the Company Software.
1.9. “Customer Personal Data” means data and/or information, other than confidential business information and, which is owned and controlled by or licensed to the Customer and is provided by or on behalf of the Customer (or its Affiliates) for processing to Company (or its Affiliates) under the applicable Agreement/Sales Order and that consists of information or data naming or identifying a natural person such as: (a) personally identifying information that is explicitly defined as a regulated category of data under any data privacy or Data Protection Laws applicable to the concerned Customer entity; (b) government issued information that can be used to identify the natural person, such as a national identification number, passport number, social security number, driver’s license number, and voter identification number;. Provided that Customer Personal Data does not include information or data that is anonymized, aggregated, de-identified or compiled on a generic basis and that does not name or identify a specific individual or person. Customer Personal Data shall be processed by the Company in accordance with and
1.10. “Data Protection Laws” mean the laws such as Information Technology Act, GDPR, CCPA, Singapore PDPA and regulations of any jurisdiction regulating or applicable to the use, collection, and storage or processing of Customer Personal Data (or similar data or information) where the Services are being performed or delivered. [and includes GDPR as well for the relevant Territory which are part of Customer locations including, in all cases, country, state or province].
1.11. “Disclosing Party” means the Party disclosing Confidential
Information under this Agreement
1.12. “Documentation” means any written or electronic documentation, images, video, text or sounds specifying the functionalities or limitations of the Services/Products describing Service, describing the Services/Products as applicable, provided or made available by the Company to the Customer.
1.13. “De-Identified Data” means any Customer Personal Data which has been anonymized, pseudonymized including aggregate Customer Personal Data
1.14. "Force Majeure Event" means, with respect to a party, any act of God, flood, fire, earthquake, war, invasion, terrorism, riot, or other civil unrest, national or regional emergency, pandemic, epidemic, or other similar event not in the control of or caused by the party (or persons acting on its behalf), that prevents the party from performing its obligations under this Agreement.
1.15. “GST”
means goods and services tax as defined under the Goods and Services Act, 2017 alongwith amendments thereof.
1.16. “Information Security Incident” means a breach of Company’s security leading to the accidental or unlawful destruction, loss, alteration or unauthorized acquisition, disclosure, misuse or access to unencrypted Customer Personal Data transmitted, stored or otherwise processed by Company.
1.17. “Intellectual Property Rights" means, Software, Documentation, patents, trademarks, service marks, trade names, registered and unregistered designs, trade or business names, copyright (including, but not limited to, rights in software), software code base, database rights, design rights, rights in confidential information (including rights to use, and protect the confidentiality of, confidential information (including know- how and trade secrets), business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, and any other intellectual property rights whatsoever irrespective of whether such intellectual property rights have been registered or not and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future and which may subsist in any part of the world.
1.18. “License” means the non-exclusive, non-sub-licensable, non-transferable, revocable
and limited right / license granted by the Company to the Customer to use the
Licensed Items without the right modify, make derivative works from, practice, and otherwise exploit and to make, have made, sell, offer for sale and use the Licensed
Items, throughout the Territory,
subject to terms in the manner
as agreed in the Agreement
1.19. “Licensed Items” shall mean the final Product or Services delivered to the Customer under a Sales Order by the Company during the Term.
1.20. “Material Breach” shall mean a breach committed by either Party in matters and clauses relating to intellectual property rights, non-provision of the services, breach of payment terms, breach of confidentiality and applicable laws.
1.21. “Product” means Software and the associated computer programs, software, including relevant updates to the Software, and associated materials and associated documentation provided by Company to the Customer for limited use as per the Agreement.
1.22. “Receiving Party” means the party receiving the Confidential Information under this Agreement
1.23. “Sales Order” means the sales order form, or any other written document for the delivery of Products and Services to the Customer that is executed between the Parties.
1.24. “Services” means the services to be rendered by the Company to the Customer as described in the Sales Order executed between the Parties
1.25. “Sensitive Personal Data” means an individual’s financial information, sexual preferences, medical or health information protected under any health data protection laws, biometric data (for purposes of uniquely identifying an individual), personal information of children protected under any child protection laws and any additional types of information included within this term or any similar term (such as “sensitive personal information” or “special categories of personal information”) as used in applicable data protection or privacy laws.
1.26. “Software” means any computer program, firmware, routine, algorithm, code, instruction, script, macro, application programming or other interface, database (including all structured data contained in the database), tool, document display definition, object library or software tool, or other instruction or set of instructions for hardware or other software to follow, whether in source code or object code and whether expressed in any or all languages including embedded program and human interfaces, SQL and other query languages, hypertext mark-up language and other computer mark-up languages, belonging to either Party respectively.
1.27. “Subcontractor” means any third-party contractor, agent, partner or Affiliate of Company used in the performance of this Agreement.
1.28. "Term” shall mean period as provided in the Sales Order, for which the Licensed Items shall be licensed and made available to the Customer by the Company.
1.29. “Territory” shall mean the Territory as mentioned in the Sales Order
2. Interpretations
2.1.
The meanings of defined terms
are equally applicable to the singular and plural forms of such defined terms,
and words importing the masculine gender include the feminine and neuter
genders and vice versa, and words importing individuals shall include juristic
persons and vice versa;
2.2.
The words “herein,” “hereto,”
“hereof” and “hereunder” and words of similar import shall refer to this
Agreement as a whole and not to any particular provision hereof;
2.3.
References to clauses or
schedules are references are to clauses and schedules to this Agreement;
2.4. Any reference to a statute or any provision of a statute includes that statute or provision as well as any rule, regulation or direction made pursuant to such statute or provision, as may be from time to time modified or re-enacted, whether prior to or after the date of this Agreement.
2.5. The term “including” is by way of example and not limitation;
2.6. The term “documents” includes any and all instruments, documents, agreements, certificates, notices, reports, financial statements and other writings, however evidenced, whether in physical or electronic form;
2.7. The subject headings of this Agreement are included for purposes of convenience only, and shall not affect the construction or interpretation of any provision hereof;
2.8. Whenever anything is required to be done or any action is required to be taken hereunder on or by a day which is not a Business Day, then such thing may be validly done, and such action may be validly taken on or by the next succeeding day that is a Business Day.
3. Scope of Services
3.1. The Company shall upon
execution of a Sales Order between the Parties, and subject to the timelines
and milestones and any other criteria agreed between the Parties in the Sales
Order, make available to the Customer, the Licensed Items for the Term. In case
of any conflict between the terms of the
Agreement and any Sales Order, the terms of this Agreement shall prevail unless
the Sales Order makes specific reference to the section of this Agreement, that
needs to be amended. The service levels for the Deliverable shall be as
provided in the Sales Order or the Statement of Work as the case may be.
3.2. The rights, benefits and protections provided herein under this Agreement may be extended to Affiliates of the Customer, subject to prior consent of the Company and provided that the Customer remains responsible for its compliance hereunder. A Customer Affiliate may also directly purchase the Services or Products of the Company pursuant to the terms of this Agreement provided that such Affiliate (i) executes a Sales Order with the Company; and (ii) agrees to be bound by the terms of this Agreement as if it were an original party hereto. The Customer hereby authorizes the Company to share the content of this Agreement with Customer’s Affiliates, if applicable.
3.3. The Company shall provide access to the Product, in the Deliverable where access to the Product is necessary, to the employees, Sub-contractor and any third-party who are authorized by the Customers, to enable the Customer to use the Deliverable for the intended purpose under in the applicable Sales Order during the Term of this Agreement.
3.4.
The Company may make available
to the Customer as a part of the Product or Services third-party products or
services (“Third-Party Services”).
These Third-Party Services may integrate with the Services and are not licensed
by the Company pursuant to this Agreement but are governed by the third party provider’s terms and conditions and privacy
policies that accompany them, which Customer must separately accept. The
Company does not warrant or support Third-Party Services, unless expressly
provided otherwise in a Sales Order. The Services and Products may contain
features designed to interoperate with Third-Party Services. The Company cannot
guarantee the continued availability of such Third-Party Services and may cease
supporting them if for example and without limitation, the Third-Party Service
provider ceases to make the Third-Party Service available. The Company shall at
no point be responsible for any of these Third-Party Services.
4. Term
The term of this Agreement shall
commence from the Effective Date/ Start Date mentioned in the Sales Order
and shall be in force and effect till the End Date
mentioned in the Sales Order, unless terminated in accordance with Clause 13 (Termination) of this MSA (“Term”). Except otherwise specified in the Sales Order, the Sales Order shall
automatically renew for a period of 12 (twelve) months each unless either party
gives the other written notice for non-renewal at least 30 days before the End
Date as specified in the Sales Order or
expiry of such renewed term as the case may be.
5. Consideration And Payment
Terms
5.1. The Customer shall discharge its payment obligations towards all invoices as provided under each applicable Sales Order.
5.2. All invoices will be raised in the frequency as mentioned in the Sales Order or any addendums etc. and the payments must be made by the Customer within the timelines as stated therein. All payments must be made by electronic transfer according to the remittance instructions on the invoice or as provided by the Company. All invoices will only be delivered electronically to the Customer. Customer must bear any charges, if any, imposed by the Customer’s bank for the payments. A service charge of one and half percent per month shall be applied on all overdue invoices. Customer shall provide a detailed remittance advice with each payment to the Company via email on request. Any fees that are unpaid as of the date of termination or expiration will be immediately due and payable. If the Customer is not a publicly traded corporation, then upon the Company’s request, the Customer must provide the necessary financial documents to allow the Company to ascertain the creditworthiness of the Customer.
5.3. The Customer shall not
deduct any withholding taxes on payments to the Company, unless it pertains to
the country in which the Company is registered.
5.4. The Company is not responsible for non-use of Software/Services by the Customer during the term of the Agreement. The Customer shall be liable to pay the Company for the full duration of the Agreement even if it prefers to not use it despite there being a valid Agreement.
5.5. If the Customer fails to pay any amount due under the Agreement according to the payment terms in the Sales Order the Company will send the Customer a reminder notice. If Customer fails to pay within 30 (thirty) days of the date of the reminder notice, the Company may, in its sole discretion, terminate the applicable Sales Order or suspend or restrict the provision of the Products and Services.
5.6. If the Customer believes, in good faith, that the Company has incorrectly billed the Customer, the Customer shall contact the Company in writing within 5 (five) days of the invoice date, specifying the error. However, the Customer must pay the undisputed portion of the Company’s invoice as required by the Agreement.
5.7. The Service Fee shall be exclusive of GST or other statutory deductions, if any at prevalent rates under applicable law, which shall be additionally borne by the Customer, unless otherwise agreed in the Sales Order.
5.8. Purchase Order: In the event the Customer requires a purchase order (“PO") for the Service Fee invoices, the Customer shall raise the PO simultaneously on execution of the Sales Order. In case of any delay in raising the PO, the Company shall proceed to send the invoice to the Customer and the same shall be payable within the timelines as agreed in the Sales Order. Notwithstanding anything to the contrary contained in the PO terms and conditions, it is agreed that the terms of this MSA alongwith the Sales Order shall prevail over the said PO.
5.9. Additional Costs, if any, shall be specified in the Sales Order and duly borne by the Customer.
5.10. Short messaging services (SMS) /email/push notification charges as mentioned in the Sales Order may change during the Term of the Agreement as a result of rate revision by regulators or operators. Company shall intimate the Customer in writing regarding any such rate revision.
6. Grant Of License and Intellectual Property
Rights
6.1.
Subject to the terms and conditions of the Agreement, the Company hereby
grants to the Customer a
non-exclusive, non-sub-licensable, non-transferable, revocable and limited
license to use the Licensed Items in the Territory and in the manner
as agreed in the Agreement.
6.2.
The License
is granted to the Customer
subject to: (i) the Customer performing its obligations
under the Agreement (ii) the requirements under applicable law; (iii) the Customer adhering to the restrictions and conditions and
for use of the Licensed Items under this Agreement
6.3.
The Intellectual Property Rights under the Licensed Items shall always remain vested with the Company
and/or its Affiliates, and in no
circumstances, the Customer or any of its Affiliates shall claim any such
Intellectual Property Rights and/or use any intellectual property of the Company
under the pretext of the Agreement, without the prior written
consent of the Company. The Company reserves
all other rights, title and
interest in the Intellectual Property Rights under the Licensed Items not
expressly granted in this Agreement.
6.4.
Except
to the extent expressly permitted under the Agreement, the Company shall
provide the Licenses under the condition that the Customer shall not:
6.4.1.
use the Licensed
Items (a) in violation of any applicable law or regulation, or in connection with unlawful
material (such as material that violates any obscenity, defamation, harassment,
privacy, publicity, or intellectual property laws); or (b) in a manner that would cause a material
risk to the security or operations of the Company
or any of its customers, or to the continued
normal operation of other Company’s customers;
6.4.2.
copy, use, distribute,
republish, download, display, transmit, sell, rent, lease, host, or sub- license the Licensed Items;
6.4.3.
offer, use, or permit
the use of the Products
and Services in a computer
service business or third-party outsourcing service, on a membership or subscription basis, on a service bureau basis, on a time-sharing basis, as part of a hosted service, or on behalf of any third
party;
6.4.4.
(a) attempt
to interact with the operating system underlying the Licensed
Items, or (b) modify, create derivative works of, adapt, translate,
reverse engineer (including monitoring or accessing the inputs and output
flowing through a system or an application), decompile, or otherwise attempt to
discover, the source code, data representations, or underlying algorithms, processes and methods;
6.4.5.
remove,
obscure, or alter any proprietary notices associated with the Products and
Services (including any notices in reports);
6.4.6.
use any software components, modules, or other
services that may be delivered with the Licensed Items but which are not licensed to Customer and identified in the Sales Order;
6.4.7.
share its login IDs and passwords, or allow use of the same login ID simultaneously by two or more users, and Customer is responsible for unauthorized access
to its login IDs and
passwords;
6.4.8.
use
the Company’s name, trademark, brand or logo on any of the advertising done by
them in any way which might prejudice the Company’s goodwill or in any way
cause damage, whether directly or indirectly to the premium position of the
Company.
6.5. The Customer agrees to take appropriate actions to protect the Licensed Items from any unauthorized usage by its users and its third parties. Any such unauthorized usage or other security breach shall immediately be brought to the notice of the Company by the Customer, failing which it shall be considered as Material breach of the Agreement.
6.6. No major changes will be made to the Licensed Items (or any assumptions related thereto) in the Sales Order, unless the Parties follow the change management process as laid down in the Sales Order. The nature and severity of the change shall be classified in the Sales Order, and shall be subject to applicable costs for such Change as prescribed in the Sales Order.
6.7. The Company may, at any time, without any liability, suspend the access to the Licensed Items (a) without in any way limiting the Company’s rights and remedies as set forth in this Agreement, in response to the Customer’s failure to pay when due any undisputed invoices issued pursuant to this Agreement, (b) if the Company reasonably believes that such a suspension is necessary to maintain the security or integrity of the Software, to prevent misuse of the Software by any person or entity, including the Customer (c) the Company reasonably believes that Customer its agents it’s consumers have violated this Agreement; or (d) Company suspects or detects any malicious software connected to a the Customers use of the Licensed Items or (e) such suspension is necessitated by Company’s third party hosting providers, provided that (i) Company notifies the Customer promptly of any such suspension and (ii) Company reinstates access to or operation of the Licensed Items as soon as reasonably practicable.
7. Customer Content and
Customer Data
7.1.
The Customer shall own (or
where applicable, must ensure it has a valid license to) the Customer Data and
Customer Content/.
7.2.
The Customer grants the Company
and its Affiliates a non-exclusive, worldwide, royalty-free license to use,
copy, transmit, sub-license, index, store, and display Customer Data and
Customer Content: (a) to the extent necessary to perform its obligations
(including, but not limited to, developing, modifying, improving, supporting,
customizing, and operating the Products and Services) or enforce its rights
under the Agreement; or (b) where required or authorized by law.
7.3.
Company may use anonymized
Customer Data for the purpose of developing, improving or customizing the
Products and Services.
7.4.
Company does not communicate
with Customer’s users directly. Customer is responsible for complying with
(including giving any notifications, obtaining any consents, and making any
disclosures required under) Data Protection Laws.
7.5.
If content generated by
consumers of Customer is uploaded to Company’s Products, the Company may access
or disclose information about Customer, its consumers, or Customer’s use of the
Services when it is required or authorized by law or regulation (e.g. when
Company receives a valid subpoena or search warrant).
7.6.
Customer must ensure it does
not directly or indirectly cause Company or third-party providers that operate
servers or host data for the Licensed Items, as applicable, to breach any Data
Protection Laws in the collection, storage, access, transfer, use or disclosure
of Personal Data arising from or in connection with this Agreement. Where
required under Data Protection Laws, Customer must ensure that:
7.6.1.
each Customer Site contains a
notice to its users that identifies the collection, use, disclosure, and
transfer of their Personal Data by Customer, Company, or third-party host
providers in connection with the Services and Products, as applicable; and
7.6.2.
Customer, when disclosing or
transferring Personal Data from any source (including Customer sites) to
Company or third-party host providers, complies with the requirements for such
disclosure or transfer.
8. Compliance with Personal
Data Protection (PDP) Laws
8.1. Each party will comply with the
requirements of the Data Protection Laws as applicable to such party with
respect to the processing of the Customer Personal Data, attached hereto as Schedule
A - Data Processing Agreement
8.2. Customer warrants to Company that it has or
will obtain prior to provision thereof, all necessary rights and permissions to
provide the Customer Personal Data to Company for the processing to be
performed in relation to the Services. Customer shall be responsible for
obtaining all necessary consents, and providing all necessary notices, as
required under the relevant Data Protection Laws in relation to the processing
of the Customer Personal Data.
8.3. In the event of (i)
any change to (including generally-accepted changes in interpretation of) a
Data Protection Law which requires any change in the manner by which Company is
delivering the Services to Customer or (ii) any interpretation of a Data
Protection Law by the Customer which requires any change in the manner by which
Company is delivering the Services to Customer, or (iii) any material new or
emerging cybersecurity threat which requires any change in the manner by which
Company is delivering the Services to Customer, if such change is a major
change, the parties shall agree upon how Company’s delivery of the Services
will be impacted and shall make appropriate adjustments to the terms of the
Agreement and the Services in accordance with the provisions of the Agreement
related to such change.
8.4. Use of Customer Personal Data. Company will
not use Customer Personal Data other than to perform the Services in accordance
with this Agreement and any applicable Sales Order. Customer acknowledges that
the provision of Services includes benchmarking and improving Company’s
offerings generally and, as a result, Company may anonymize, pseudonymize or
aggregate Customer Personal Data and use or disclose De-Identified Data as part
of the Services, only if and to the extent such creation and use of
De-Identified Data is consistent with the consents obtained by the Customer in
relation to the underlying Customer Personal Data and is also fully consistent
with applicable Data Protection Laws (and both the Customer’s and Company’s
obligations thereunder). Subject to the foregoing, the Company will not
associate De-Identified Data with Customer’s identity or the personal data of
Customer’s employees or end users.
8.5. Information Security Incidents. Company
shall maintain procedures to detect and respond to Information Security
Incidents. If an Information Security Incident occurs which may reasonably
compromise the security or privacy of Customer Personal Data, Company will
promptly notify Customer with complete details about the breach, within maximum
48 (forty-eight) hours of knowledge of its incident occurrence, and in any
event in accordance with Data Protection Laws applicable to both Company and
the Customer. Company will cooperate with Customer in investigating the
Information Security Incident within the aforesaid 48(forty-eight) hours and,
taking into account the nature of the Services provided and the information
available to Company, provide assistance to Customer as reasonably requested
with respect to Customer’s breach notification obligations under any applicable
Data Protection Laws.
8.6. As applicable, the Laws of the Countries in
operation may have rules around Do Not Call Registry (hereinafter referred to
as the “DNC Provisions”), or of
similar nature, which Customer is required to comply with and ensure it has
obtained clear and unambiguous consent in evidential form. It is the obligation
of the Customer to inform and keep the Company updated on any consent or
Consent withdrawal by its end users via email. The Customer hereby indemnifies the
Company for any monetary penalties incurred by Company under the DNC Provisions
as a result of Customer’s failure to comply with obligations as stated above.
9. Representation
and Warranties
9.1. Each Party hereby represents and warrants
to the other as follows:
9.1.1. It has all requisite power and authority to
enter into and perform all its obligations under this Agreement.
9.1.2. It has taken all actions, obtained all
regulatory, corporate and contractual authorizations, and submitted all notices
or filings required to be submitted, for it to validly enter into this
Agreement and perform all its obligations under this Agreement.
9.1.3. The execution and delivery of, or the
performance of obligations under, this Agreement do not and shall not violate
or conflict with any statute, rule, regulation, directive, other law, judgment,
order, decree or award applicable to it or to any provision of its constituent
documents, or any agreement, contract, promise, covenant, undertaking,
representation or warranty, applicable to or made by it.
9.1.4. This Agreement constitutes legal, valid and
binding obligations, enforceable against it in accordance with its terms.
9.2. The Company represents
9.2.1. that it has no knowledge that any Licensed
Items infringes any third party Intellectual Property
Rights. The Customer understands and acknowledges that the Licensed Items are
granted on license to the Customer hereunder on an ‘as-is, where-is’ basis.
9.2.2. to the extent the Services
consist of professional services, software development/configuration or other
services performed by Company’s personnel or its third-party contractors, it
will perform the Services in a professional manner and to industry best
standards, consistent with the Sales Order and any specifications or
documentation applicable to the Services.
9.3. Each of the representations and warranties
contained in this Agreement are separate and independent and shall not be
qualified or limited by any reference to any other representation or warranty,
or any other provision of this Agreement.
9.4.
Except
as
expressly set forth in the Agreement, the Company
disclaims any and all promises, representations and warranties with respect to the Licensed
Items, including its condition,
conformity to any representation or description, the existence of any latent or
patent defects therein, merchantability or fitness for a particular use or
purpose, or any other warranty, express or implied. Notwithstanding anything to
the contrary in this Agreement, the Company expressly disclaims all liabilities,
incurred as a result of any SMS pumping attacks.
9.5 The Customer represents that
9.5.1 The Customer will provide
a single point of contact as an authorised decision maker and approver for all
deliverables, priorities, activities and change requests.
9.5.2
Customer will ensure that appropriate subject matter experts and technical
operational resources are available to collaborate with the Company’s delivery
team.
9.5.3 The Customer will deliver
timely, accurate and complete information / data as requested by the Company as
it pertains to the activities as outlined in the Sales Order and or this
Agreement. The Customer shall also ensure that it responds promptly to any
request for information and approvals as sought by the Company.
10.
Indemnity
10.1. Indemnification by Customer. The Customer
hereby indemnifies, and undertakes to defend and hold harmless, the Company and
its employees and officers from and against
all third party claims, suits,
liabilities, damages, costs,
and fees, including, without limitation, attorneys' fees, expenses or
losses connected therewith, arising out of or resulting directly from: (i) any personal injury, death or damage to property caused
by the gross negligence or willful misconduct of the Customer or its agents and
representatives, in the performance of the Agreement (ii) any actual
infringement or alleged violation, infringement, unauthorized use or
misappropriation of any third party’s copyright, patent, trademark, or other
Intellectual Property due to acts or omission of the Customer including due to
the use of the data belonging to the Customer; (iii) breach of applicable laws
and regulations; (iv) use of the Licensed Items other than as permitted under
this Agreement (v) Further, the Customer confirms not to request sending any
un-solicited/unwanted/undesirable information/e - mail/social post/SMS message
through the Company and shall keep the Company indemnified for any
penalties/dues imposed on Company for violation of any law resulting from
content of the messages or to whom the message is sent.
10.2. Indemnification by the Company. The Company
shall defend, indemnify and hold harmless the Customer, its Affiliates and all
of their respective officers, directors, agents and employees from and against
any and all third party direct Claims relating to or based on (i) any personal injury, death or damage to property caused
by the gross negligence or willful misconduct of the Company or its agents and
representatives, in the performance of the Agreement (ii) breach of applicable
laws and regulations; (ii) any actual infringement or alleged violation,
infringement, unauthorized use or misappropriation of any third party’s
copyright, patent, trademark, or other Intellectual Property Right; If the
Company reasonably believes that the Customer’s use of the Licensed Items is
likely to be enjoined, or if the Licensed Items are held to infringe such
patent or any other Intellectual Property Rights of a third party and all use
of such Licensed Items by the Customer is thereby enjoined, the Company shall,
at its expense and at its sole option, (a) procure for the Customer, the right
to continue using the Licensed Items, or (b) replace the Licensed Items with
other non-infringing software or services of substantially equivalent
functionality, or (c) modify the Licensed Items so that there is no
infringement, provided that such modified software or services provide
substantially equivalent functionality. If, in the Company’s opinion, the
remedies in clauses (a), (b) and (c) above are infeasible or commercially impracticable,
the Company shall refund the Customer, a pro-rated amount of the applicable
Fees pre-paid by the Customer for the tenure during which the Customer is
unable to use the said Licensed Items. The Customer shall not settle any matter
without the prior written approval of the Company.
10.3. The Company shall not be liable in case of
any intellectual property infringement claim, if it arises out of (i) any use of Licensed Items in violation of the
Agreement;(ii) modification of the Licensed Items by the Customer (or any third
party acting on the Customer’s behalf); or (iii) failure by the Customer to
install the latest updated version of the Product as requested by the Company
to avoid infringement; or (iv) third- party products, services, hardware,
software, or other materials, or combination of these with the Licensed Items,
if the Licensed Items would not be infringing without this combination.
11.
Limitation of Liability
11.1. UNDER NO
CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, NEGLIGENCE OR
OTHERWISE) SHALL EITHER PARTY TO THIS AGREEMENT, OR THEIR RESPECTIVE
AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SERVICE PROVIDERS,
SUPPLIERS OR LICENSORS, BE LIABLE TO THE OTHER PARTY OR ITS AFFILIATES FOR ANY
LOST PROFITS, LOST SALES OR BUSINESS, , LOSS OF GOODWILL, OR FOR ANY OTHER TYPE
OF INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE LOSS OR
DAMAGES, OR FOR ANY OTHER INDIRECT LOSS OR DAMAGES INCURRED BY THE OTHER PARTY
OR ITS AFFILIATES IN CONNECTION WITH THIS AGREEMENT AND APPLICABLE SALES ORDER,
THE SERVICES, REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OF THE
POSSIBILITY OF OR COULD HAVE FORESEEN SUCH DAMAGES.
11.2. NOTWITHSTANDING
ANYTHING TO THE CONTRARY IN THE AGREEMENT, THE COMPANY AND ITS AFFILIATES
AGGREGATE LIABILITY TO THE CUSTOMER, ITS AFFILIATES, OR ANY THIRD PARTY ARISING
OUT OF THIS AGREEMENT AND SALES ORDER, SHALL IN NO EVENT EXCEED THE LICENSE FEES
(AS AGREED IN THE APPLICABLE SALES ORDER) PAID BY THE CUSTOMER DURING THE
TWELVE (12) MONTHS PRIOR TO THE FIRST EVENT OR OCCURRENCE GIVING RISE TO SUCH
LIABILITY. THE LIMITATION OF LIABILITY PROVIDED FOR HEREIN APPLIES IN AGGREGATE
TO ANY AND ALL CLAIMS BY CUSTOMER AND ITS AFFILIATES AND SHALL NOT BE
CUMULATIVE.
11.3. Any claims
or damages that the Customer may have against the Company shall only be
enforceable against Company and not any other entity, nor any officers,
directors, representatives or agents of Company.
12.
Confidentiality
12.1. Each Party shall treat Confidential
Information with reasonable care and disclose the same only on a need-to-know
basis or as permitted under the Agreement. The Receiving Party will only use
Confidential Information for the purposes of performing its obligations or as
permitted under the Agreement. However, the Receiving Party may disclose the Confidential
Information of the Disclosing Party:
i.
if approved in writing by the Disclosing Party;
ii.
if required by law or regulation;
iii.
in the event of dispute between the Parties, as necessary to
establish the rights of either Party; or
iv.
as necessary to provide the Services licensed by the Customer.
12.2. In the case of (ii) and (iii), the
Receiving Party will provide reasonable advance notice to the other Party and
provide reasonable assistance to limit the scope of the disclosure unless prohibited
by law or regulation.
12.3. Under this Clause 12 (Confidentiality) and
the definition of “Confidential Information”, a reference to a Party means a
Party and its Affiliates. The Receiving Party is responsible for ensuring that
its representatives and Affiliates fully comply with the obligations of the
receiving Party under this Clause 12 (Confidentiality).
13. Termination
13.1. Notwithstanding anything herein contained,
either Party may, by giving thirty (30) days’ notice in writing, terminate this
Agreement only under any one or more of the following conditions, failing which
all amounts payable under the Sales Order or this Agreement for the Term shall become
immediately payable in full:
13.1.1 if either Party
commits a Material Breach of this Agreement or its accompanying Sales Order and
fails to correct the breach within thirty (30) days of written specification of
the breach, then the breaching party is in default and the non-breaching party
may terminate this Agreement or the relevant Sales Order under which the breach
has occurred. The non-breaching party may agree at its sole discretion to
extend the thirty (30) day period for so long as the breaching party continues
reasonable efforts to cure the breach. Wherein, the breach is not rectified,
therein the non-breaching party may at its sole discretion, opt to terminate
the agreement.
13.1.2 If a petition for insolvency is filed
against any Party and such petition is not dismissed within ninety (90) days
after filing and/or if any Party makes an arrangement for the benefit of its
creditors or, if the court receiver is appointed as receiver of all/any of any
Party's properties.
13.2. Neither Party shall be entitled to
terminate the Sales Order without cause during the Term of the Sales Order.
14. Post
Termination
14.1. The termination of this Agreement shall
not: (a) in anyway affect or prejudice any right accrued to any Party against
the other Parties, prior to such termination; including the right of the
Company to receive full and complete payments stipulated under the Sales Order;
(b) extinguish the rights and obligations that contemplates performance or
observance by the Parties under the Agreement, which either expressly or by
their nature survive the termination of the Agreement, unless any of such
rights, obligations or liabilities, are waived in writing.
14.2. Upon termination of the Agreement for any
reason: (a) all Sales Orders and or amended Sales Order, if any then in effect
shall immediately terminate, unless expressly stated in contrary in the Sales
Orders therein. (b) the License and associated rights in the Licensed Items will
immediately terminate.
14.3. Within 30 (thirty) days from the date of
termination of the Agreement, the Customer shall hand over all the materials,
if any, belonging to the Company, including but not limited to Confidential
Information of the Company. The Customer hereby agrees that no copies of the
materials, documents, data etc., shall be made or retained upon the termination
or expiration of the Agreement.
14.4. Upon termination of the provision of the
Services, and subject to receipt of all pending payments, if any, the Company
shall provide a copy of Customer Data in a mutually agreed format such as .csv
or .txt within thirty (30) days and delete the Customer Data within ninety (90)
days from the date of termination. Company may retain the data to the extent that
it is required or authorized to do so under applicable law and/or regulation,
in which case Company will securely isolate and protect such data from any
further processing, except to the extent required by applicable law and/or
regulation.
14.5. It is hereby agreed and understood by the
Customer that the provisions of this Clause shall not limit or restrict, nor
shall they preclude Company from pursuing such further and other legal actions,
against the Customer for any breach or non-compliance of the terms of the
Agreement.
15. Force
Majeure
15.1. To the extent that a party is unable to
perform any of its obligations under this Agreement solely and directly as a
result of a Force Majeure Event, the party (the "Excused Party") will
be excused from and liability arising from failure performing those
obligations, provided that:
15.1.1. the failure to perform could not have been
prevented by reasonable foresight or precautions or circumvented through the
use of alternate sources, work-around plans, or other means by the Excused
Party;
15.1.2. the Excused Party promptly notifies the
other party, in writing, of the Force Majeure Event, which includes sufficient
documentation to establish to the reasonable satisfaction of the other party
the impact of the Force Majeure Event and why the Excused Party should be
excused from performance of its obligations under this Agreement based upon the
above criteria; and
15.1.3. the Excused Party uses best efforts to
recommence its obligations to perform without delay, including through the use
of alternate sources, workaround plans, or other means.
15.2. If a Force Majeure Event substantially
prevents or delays performance of any Services for more than sixty (60)
consecutive days.
16. Export
Compliance and Use Restrictions
The Products and Services which the Company may
provide or make available to the Customer or users may be subject to U.S. (or
other territories) export control and economic sanctions laws, rules and
regulations, including without limiting the regulations promulgated by the U.S.
Department of Commerce’s Bureau of Industry and Security (“BIS”) and the U.S.
Department of the Treasury’s Office of Foreign Assets Control (“OFAC”)
(collectively, “Export Control Laws”). Wherever applicable, the Customer agrees
to comply with all the Export Control Laws as they relate to access to and use
of the Services, Software, and such other components by the Customer. Customer
shall not access or use the Products and Services if Customer is located in any
jurisdiction in which the provision of the Services, Software or other
components is prohibited under U.S. or other applicable laws or regulations,
including, without limitation, a country or territory that is subject to
comprehensive U.S. trade sanctions (including, without limitation Cuba, Iran,
North Korea, Syria or the Crimea or so-called Donetsk People’s Republic (DNR)
or Luhansk People’s Republic regions of Ukraine) (a “Prohibited Jurisdiction”)
and Customer shall not provide access to the Products and Services to any government,
entity or individual located in any Prohibited Jurisdiction. Customer
represents, warrants and covenants that (i) Customer
is not named on, or owned or controlled by any party named on any U.S.
government (or other government) list of persons or entities prohibited from
receiving U.S. exports, or transacting with any U.S. person, (ii) Customer is
not a national of, located in, or a company registered in, any Prohibited
Jurisdiction, (iii) Customer shall not permit Users to access or use the Service
in violation of any Export Control Laws, (iv) no Customer Data created or
submitted by Customer is subject to any restriction on disclosure, transfer,
download, export or re-export under the Export Control Laws, and (v) Customer
shall comply with all applicable laws regarding the transmission of technical
data exported from the United States and the country in which Customer and
Customer’s Users are located. Customer further agrees that Customer will not
use the Products and Services to disclose, transfer, download, export or
re-export, directly or indirectly, any Customer Data to any country, entity or
other party which is ineligible to receive such items under the Export Control
Laws or under other laws or regulations to which Customer may be subject. Customer
acknowledges that the Service and other Software may not be available in all
jurisdictions and that Customer is solely responsible for complying with the
Export Control Laws.
17. Anti-Corruption
and Anti-Bribery
17.1. None of Customer its Affiliates, their personnel,
or representatives have engaged, or will engage, in any corrupt, fraudulent,
unfair, or deceptive practices in connection with this Agreement or any other
business transactions involving Company, including directly or indirectly
offering or providing to a person (including any political party, public
official, Regulatory Authority, or other government-related entity) a contribution, gift, bribe, loan, kick-back,
payment of money or other benefit, regardless of form, for the purpose of
influencing any act, decision or failure to act by such person or to secure an
improper advantage to obtain, retain, or direct business.
17.2. Customer will comply with, and will cause
its Affiliates, their personnel, representatives and subcontractors to comply
with, all Applicable Law concerning anti-bribery and anti-corruption, including
the Canadian Corruption of Foreign Public Officials Act, the UK Bribery Act,
2010 and the United States Foreign Corrupt Practices Act (collectively, "ABAC Laws"), if applicable.
Customer represents and warrants that none of Customer, its Affiliates,
personnel, representatives or Subcontractors have taken any action in
connection with this Agreement or any other business transaction involving the
Company that would constitute a violation of any ABAC Laws.
17.3. Customer represents and warrants to the
Company that neither the Customer nor its Affiliates have any undisclosed
direct or indirect business or personal, financial, or other interest, in any person
that would conflict with, or influence in any manner or degree.
18. Governing
Law and Dispute Resolution
The Parties shall resolve any difference or dispute
arising out of the Sales Order and / or this Agreement by way of negotiations.
If such negotiation process fails, then all disputes shall be resolved in the
below mentioned manner
|
United States |
In case the Sales Order is executed between the
Customer and any Affiliate of the Company in the United States of America
then this Agreement shall be governed in accordance with, the laws of Delaware
without having regard to the conflict of laws
provisions thereunder. The courts of Delaware shall have exclusive
jurisdiction over all matters arising pursuant to this Agreement. |
|
Europe |
In case the Sales Order is executed between the
Customer and Capillary Technologies Europe Limited, the provisions of this Agreement
shall be governed by and construed in accordance with the laws of England and
Wales. Any dispute arising out of or in connection or the interpretation of
this Agreement or the Sales Order, shall be subject to exclusive jurisdiction
of the Courts in London. |
|
Dubai |
In case the Sales Order is executed between the
Customer and Capillary Technologies DMCC, the provisions of this Agreement
shall be governed by and construed in accordance with the laws of Dubai. Any
dispute arising out of or in connection or the interpretation of this
Agreement or the Sales Order, shall be subject to exclusive jurisdiction of
the Courts in Dubai. |
|
India |
In case the Sales Order is executed between the
Customer and Capillary Technologies India Limited, the provisions of this
Agreement shall be governed by and construed in accordance with Indian law.
Any dispute, controversy or claims arising out of or relating to the
Agreement or the Sales Order, shall be settled by arbitration in accordance
with the provisions of the Arbitration and Conciliation Act, 1996. The
arbitral tribunal shall be composed of a sole arbitrator to be appointed by
both the Parties with mutual understanding. The place of arbitration shall be
Bangalore and any award whether interim or final, shall be made, and shall be
deemed for all purposes between the Parties to be made, in Bangalore. The
award of the arbitrator shall be final and conclusive and binding upon the
Parties, and the Parties shall be entitled (but not obliged) to enter
judgment thereon in any one or more of the highest courts having
jurisdiction. The Parties further agree (to the maximum extent possible and
allowed to them) that such enforcement shall be subject to the provisions of
the Arbitration and Conciliation Act, 1996 and neither Party shall seek to
resist the enforcement of any award in India on the basis that award is not
subject to such provisions. The rights and obligations of the Parties under,
or pursuant to, the Agreement, including the arbitration agreement in this
Clause, shall be under the exclusive jurisdiction of the courts located at
Bangalore. |
|
Singapore |
a. In case the
Sales Order is executed between the Customer and Capillary Pte. Ltd. or
Customer and Capillary Technologies (Malaysia) Sdn.
Bhd. or Customer and PT Capillary Technologies Indonesia then this Agreement
shall be governed by and construed in accordance with the laws of Singapore. b. the Parties
agree to negotiate in good faith to resolve any dispute between them relating
to this Agreement. c. If, within 15
(fifteen) calendar days after one Party has notified the others in writing of
such a dispute, the Parties are unable to resolve the dispute as aforesaid,
the disputes or differences shall be referred to final and binding
arbitration at the request of either of the disputing Parties upon written
Notice to that effect to the other. In the event of such arbitration: d. The arbitration shall be referred to and finally
resolved by arbitration administered by Singapore International Arbitration
Centre (“SIAC”) in accordance with the arbitration rules of the Singapore
International Arbitration Centre ("SIAC Rules"), in force at the
relevant time (which is deemed to be incorporated into this Agreement by
reference); (i)
All proceedings of such arbitration shall be in the English
language and all
documents submitted (including those submitted as filings, evidence or exhibits)
shall be certified English translations if
in a language other than English. The venue and seat of the arbitration shall
be Singapore; (ii) The arbitration shall be
conducted by a Sole Arbitrator ("Arbitral Tribunal") appointed in accordance with the SIAC Rules; (iii) The
award shall be made in writing and published by the Arbitral Tribunal no
later than
180 (one hundred eighty) days from entering upon the reference in terms of
Rule5.1 of the
SIAC Rules. The Parties hereto
shall be deemed
to have irrevocably given their consent to the Arbitral Tribunal to make and publish the award within the period
referred to hereinabove and the award of the Arbitral Tribunal shall
be final and binding on the Parties |
19.
Assignment
Except
as permitted herein, neither Party may, directly or indirectly, by operation of
law or otherwise, assign all or any part of this Agreement or rights under this
Agreement, or delegate performance of its duties under this Agreement, without
written prior consent of the other party, which consent will not be
unreasonably withheld. Notwithstanding the foregoing the Customer may, without
Company’s consent, assign this Agreement to an Affiliate or in connection with
any merger or change of control of Customer or the sale of all or substantially
all of Customer’s assets, provided that (a) any such successor agrees to
fulfill its obligations pursuant to this Agreement, and (b) Customer and the
assignee execute Company’s novation Agreement; and (c) Company may assign this
Agreement without Customer’s consent to any Affiliate of the Company or in
connection with any merger or change of control of Company or the sale of all
or substantially all of Company’s assets provided that any such successor
agrees to fulfill its obligations pursuant to this Agreement. If requested by
the Company, the Customer must execute an assignment to give effect to the
Company’s assignment. Subject to the foregoing restrictions, this Agreement
will be fully binding upon, inure to the benefit of and be enforceable by the
Parties and their respective successors and assigns.
20. Miscellaneous
20.1. Amendment and Waiver: Any material
provision of the Agreement, prejudicially impacting the Customer, may be
amended or waived only if such amendment or waiver is in writing and signed, in
the case of an amendment by each Party, or in the case of a waiver, by the
Party against whom the waiver is to be effective. No failure or delay by either
party in exercising any right under this Agreement will constitute a waiver of
that right.
20.2. Cumulative Rights: No failure or delay by
any Party in exercising any right, power or privilege hereunder shall operate
as a waiver thereof nor shall any single or partial exercise of any other
right, power or privilege. The rights and remedies herein provided shall be
cumulative and not exclusive of any rights or remedies provided by law.
20.3. Successors: The provisions of the Agreement
shall be binding upon and inure to the benefit of the Parties hereto and their
respective successors and permitted assigns. Where specified in a Sales Order
and intimated to the Company, the Customer may allow its Affiliates to use and
access the Product and Services.
20.4. Notices: Unless otherwise provided herein,
all notices or other communications under or in connection with this Agreement
shall be given in writing and may be sent by personal delivery or post or
courier or electronic mail. Any such notice or other communication will be
deemed to be effective if sent by personal delivery, when delivered, if sent by
post, two days after being deposited in the post and if sent by courier, one
day after being deposited with the courier, and if sent by electronic mail,
when sent (on receipt of a confirmation to the correct email address). The
address as provided in the Sales Order shall be used for the purpose of
delivering the said Notices.
20.5. Entire Agreement: The Agreement, being the
Annexure with all the Sales Order (as amended from time to time), amendments constitute
the entire agreement between the Parties with respect to the subject matter
hereof and supersedes all prior written agreements, understandings and
negotiations, both written and oral, between the Parties with respect to the
subject matter of the Agreement. No representation, inducement, promise,
understanding, condition or warranty not set forth herein has been made or
relied upon by any Party hereto.
20.6. Neither the Agreement nor any provision
hereof is intended to confer upon any Person other than the Parties to the
Agreement any rights or remedies hereunder.
20.7. Non-solicitation: The Parties will not
solicit the employment of other Party’s employees / Personnel during the Term
of this Agreement, including renewals and extensions, if any and for a period
of 1 (one) year thereafter, except that this Section will not restrict the
employment of any person as a result of that person making an unsolicited
response to a bona fide published general recruitment advertisement not
specifically directed at such person.
20.8. No Agency. Nothing in this Agreement is
intended to constitute a fiduciary relationship, agency, joint venture,
partnership, or trust between the Parties. No Party has authority to bind the
other Party. The Agreement is on a principal-to-principal basis between the
Parties hereto. Nothing contained in this Agreement shall be construed or
deemed to create any association, partnership or joint venture or
employer-employee relationship or principal-agent relationship in any manner
whatsoever between the Parties. The Company acknowledges that its rendering of
the Services is solely within its own control, subject to the terms and
conditions agreed upon and agrees not to hold itself out to be an employee,
agent or servant of Customer or any subsidiary or affiliate thereof.
20.9. No Third-Party Beneficiaries: Nothing in
this Agreement, express or implied, is intended or shall be construed to confer
upon or give to any person, firm, corporation, or legal entity, other than the
Parties, any right, remedies, or other benefits under or by reason of this
Agreement
20.10. Publicity: Neither party shall use the name
and/or trademark/logo of the other party, its group companies, subsidiaries or
associates in any sales or marketing publication or advertisement, or in any
other manner without prior written consent of the other party. However, notwithstanding
the foregoing, the Company shall be entitled to use the name / logo of the
Customer in its advertising and marketing campaigns, brochures, website etc.
strictly as one of the customers of the Company.
20.11. Severability: The invalidity or
unenforceability of any provisions of the Agreement in any jurisdiction shall
not affect the validity, legality or enforceability of the remainder of the
Agreement in such jurisdiction or the validity, legality or enforceability of
the Agreement, including any such provision, in any other jurisdiction, it
being intended that all rights and obligations of the Parties hereunder shall
be enforceable to the fullest extent permitted by law
SCHEDULE
A
Data Processing Agreement
This Data
Processing Agreement (“DPA”) supplements the Sales Order, as updated from time
to time between Customer (hereinafter referred to as the “Customer” or “Controller”)
and Company (hereinafter referred to as the “Company” or “Processor”),
or other agreement between Customer and Company governing Customer’s use of the
Service Offerings. This DPA is an agreement between you and the entity you
represent (“Customer”, “you” or “your”) and Company.
WHEREAS
(A) The Customer acts as a
Controller for consumer personal data the Controller provides to the Processor,
and provides specific processing instructions to the Processor.
(B) Vide the Sales Order, the
Customer has contracted certain Services, detailed therein to the Processor.
(C) The Services include the
processing of consumer personal data by the Processor in the course of
providing services under the Sales Order executed by the Customer.
(D) The Parties seek to
implement a Data Processing Agreement that complies with the requirements of
the current applicable legal framework on the protection of privacy of natural
persons when processing personal data.
(E) The Parties also wish to
lay down their rights and obligations relating to such processing of consumer
personal data.
IT IS AGREED AS FOLLOWS:
1.
Definitions and Interpretation
1.1 Unless otherwise defined
herein, capitalized terms and expressions used in this Agreement shall have the
following meaning:
1.1.1
"DPA"
means this Data Processing Agreement;
1.1.1.1 "Consumer Personal
Data" means any Personal Data processed by the Processor on behalf of the
Customer as detailed in the Sales Order.
1.1.1.2 "Data Protection
Laws" means EU GDPR, the data protection or privacy laws of applicable
countries (US, Singapore etc.,) considering the origin, scope and nature of
processing of personal data;
1.1.2 "Data Transfer" means:
1.1.2.1 a transfer of Consumer Personal Data
between the Customer and the Processor; or
1.1.2.2 an onward transfer of
Consumer Personal Data from the Processor to a Subprocessor,
or between two establishments of the Processor,
in each case,
where such transfer would be permitted by Data Protection Laws (or permitted by
the terms of data transfer agreements put in place to address any data transfer
restrictions placed by Data Protection Laws);
1.1.3 Sales Order means the
Sales Order, to which this Agreement is an integral part and duly executed between
the Company and the Processor;
1.1.4 "Services" means
the services pursuant to or in connection with the Sales Order.
1.1.5 "Subprocessor"
means any person or third-party organization appointed by or on behalf of a
Processor to process Personal Data on behalf of Controller in connection with
the Agreement.
1.2
The terms "Controller", Processor, "Data
Subject", "Personal Data", "Personal Data Breach",
"Processing" and "Supervisory Authority" shall have the
same meaning as in EU GDPR and the applicable Data Protection Laws, and their
cognate terms shall be construed accordingly.
2.
Processing of Consumer Personal
Data
2.1
2.2 Each party shall comply with their
respective obligations under Data Protection Laws.
2.3 In processing Consumer
Personal Data, the Processor shall not Process Consumer Personal Data other
than on the Customer’s documented instructions.
2.4 The Customer shall instruct
the Processor through documented processing instructions in the Sales Order or
through other agreed documents such as Scope of Work (SOW), Business
Requirement Document (BRD) etc., the modalities of processing Consumer Personal
Data.
2.5 The Customer shall
indemnify and hold the Processor and any Subprocessors
harmless against any third-party actions or claims relating to the processing
of Consumer Personal Data, so long as such processing is in strict compliance
with the abovementioned documented processing instructions provided by the
Customer and Data Protection Laws.
3.
Processor Personnel
Processor shall
take reasonable steps to ensure that access to the Consumer Personal Data is
strictly limited to those individuals who need to know / access the relevant
Consumer Personal Data, as strictly necessary for the purposes of the Sales
Order. The Processor shall ensure compliance with Data Protection Laws in the
context of that individual's duties to the Processor, ensuring that all such
individuals are subject to confidentiality undertakings or professional or
statutory obligations of confidentiality.
4.
Security
The Processor shall use the appropriate technical and organizational
security measures as
5.
Data Subject Rights
5.1
Taking into account the nature of the Processing, Processor
shall assist the Customer by implementing appropriate technical and
organizational security measures (refer to 4.1), for the fulfillment of the
Company obligations to comply with Data Subject Access Requests under the Data
Protection Laws.
5.2
Processor
shall:
5.2.1 promptly notify Customer
if it receives a request from a Data Subject under any Data Protection Law in
respect of Consumer Personal Data; and
5.2.2 ensure that it does not
respond to the Subject Access Requests except on the documented instructions of
the Company or as required by applicable Data Protection Laws to which the
Processor is subject, in which case Processor shall to the extent permitted by
the applicable law, inform Customer of that legal requirement before the
Processor responds to the request.
6.
6.1 If Company receives a valid and binding order (“Request”) from any governmental or
regulatory body (“Requesting Party”) for disclosure of Consumer Personal Data, Company will use
every reasonable effort to redirect the Requesting Party to request Consumer
Personal Data directly from the Customer.
6.2 If compelled to disclose
Consumer Personal Data to a Requesting Party, Company will:
(a) promptly notify the
Customer of the Request to allow the Customer to seek a protective order or
other appropriate remedy, if the Company is legally permitted to do so.
(b) challenge any overbroad or
inappropriate Request (including where such Request conflicts with the law of
the European Union or applicable Member State law).
6.3 If, after exhausting the steps described in
Section
7. Personal Data Breach
7.1 Processor shall notify Customer promptly upon Processor becoming aware
of a Personal Data Breach affecting Consumer Personal Data, providing Company
with sufficient information to allow the Customer to meet any obligations to
report or inform Data Subjects of the Personal Data Breach as required by the
Data Protection Laws.
7.2 The Processor shall cooperate with the Customer and take reasonable
steps as directed by the Customer to assist in the investigation, mitigation
and remediation of each such Personal Data Breach.
8. Data Protection Impact Assessment and Prior Consultation
Processor shall
provide reasonable assistance to the Customer with any data protection impact
assessments, and prior consultations with Supervising Authorities or other
competent data privacy authorities, which Customer reasonably considers to be
required under the provisions of the Data Protection Laws, in each case solely
in relation to Processing of Consumer Personal Data by and taking into account
the nature of the Processing and information available to the Processor.
9. Deletion
or return of Customer Personal Data
9.1 Subject to this Article, the Processor shall promptly and in any
event within 90 days of the date of cessation of any Services involving the
Processing of Consumer Personal Data (the "Cessation Date"), delete
and procure the deletion of all copies of those Consumer Personal Data.
9.2 Processor shall, on request provide written certification and
evidence of deletion of Consumer Personal Data to the Customer that it has
fully complied with this Article within 90 days of the Cessation Date.
10. Data Transfer
Subprocessor: The Data Processor shall impose by
way of a written agreement the same level of obligations (privacy and security
controls) on the Subprocessors as are imposed on the
Data Processor under the Clauses.
11. Data Subject Rights
Nothing in this Addendum
restricts Customer’s data subjects from exercising their rights under the GDPR,
including their rights to compensation from Company for material or
non-material damage under, and in accordance with, Article 82 of the GDPR.
12. General Terms
12.1 Confidentiality - Each Party must keep this Agreement and
information it receives about the other Party and its business in connection
with this Agreement (“Confidential Information”) confidential and must not use
or disclose that Confidential Information without the prior written consent of
the other Party except to the extent that: (a) disclosure is required by law;
(b) the relevant information is already in the public domain.
12.2 Notices - All notices and
communications given under this Agreement must be in writing and will be
delivered personally, sent by post or sent by email. Controller shall be
notified by email sent to the address related to its use of the Service under
the Sales Order. Processor shall be notified by email sent to the address: guardians@capillarytech.com.
13. Governing Law and Jurisdiction
13.1 This Agreement is governed by the applicable laws as per the
relevant provisions of the Sales Order
13.2 Any dispute arising in connection with this Agreement, will be
resolved as per the relevant provisions of the Sales Order.