These Online Terms and Conditions (the "Agreement") are entered into between DigitalGenius, Ltd. ("DigitalGenius") with offices at: - 3rd Floor 86-90 Paul Street, London, England EC2A 4NE, and - 2261 Market Street, #22501, San Francisco, CA, 94114, USA, and the subscribing customer ("Customer") upon signature of an Order Form that references this online document as the governing Agreement. DigitalGenius and the Customer will each be referred to as a "Party" and collectively as the "Parties."
The Parties agree as follows:
DEFINITIONS.
means all written or oral information, disclosed by either Party to the other, related to the operations of either Party or a third party that has been identified as confidential or that by the nature of the circumstances surrounding disclosure ought reasonably to be treated as confidential. Confidential Information shall include, without limitation, the terms, conditions and pricing of this Agreement, the Customer Content, the DigitalGenius Materials and the DigitalGenius Service.
means any entity that directly or indirectly controls, is controlled by, or is under common control with the Customer entity signing this Agreement. "Control" for purposes of this definition, means direct or indirect ownership or control of more than fifty percent (50%) of the voting interests of the subject entity.
means the data and content made available via the DigitalGenius Service by or on behalf of Customer
means all applicable data protection and privacy legislation in force from time to time including, where applicable: (a) in respect of the UK, the retained EU law version of the General Data Protection Regulation ("UK GDPR"), the Data Protection Act 2018 and the Data (Use and Access) Act 2025 (and regulations made thereunder) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended; (b) in respect of the EU, the General Data Protection Regulation ((EU) 2016/679) ("GDPR"); and (c) all other legislation and regulatory requirements in force from time to time which apply to a Party relating to the use of personal data (including, without limitation, the privacy of electronic communications);
means the Data Processing Addendum incorporated into and forming part of this Agreement, as may be updated or replaced by written agreement of the Parties.
means any materials that DigitalGenius provides to Customer as part of, or in the course of providing, the DigitalGenius Service and/or the Professional Services.
means the on-line, web-based service that may at Customer's option include the use of conversational, visual, generative, and voice-based or other artificial intelligence technology ordered by Customer through an Order Form and provided by DigitalGenius under this Agreement, solely to the extent set forth and further described in, and as may be limited by, the Order Forms executed by the Parties, together with its accompanying documentation. The DigitalGenius Service as defined in this Agreement shall not include the Professional Services.
means the date for commencement of the DigitalGenius Service and any Professional Services as set out in the Order Form.
means the minimum term of this Agreement as set out in the Order Form. Where no such term is set out, the Initial Term shall be a period of twelve (12) months from the Effective Date.
means a document signed by both Parties identifying a given type of DigitalGenius Service to be made available to Customer by DigitalGenius and/or any Professional Services to be provided by DigitalGenius to Customer pursuant to this Agreement, and each Order Form shall incorporate this Agreement by reference.
means the privacy policy located here
means consulting, implementation and technical services which may be provided by DigitalGenius under this Agreement, as described more fully in an Order Form.
has the meaning given in Section 9.1.
means the total term of Customer's subscription to the DigitalGenius Service, comprising the Initial Term and Renewal Term(s).
means any individual authorised by Customer to access the DigitalGenius Service subject to the terms of this Agreement. Users may include Customer and Customer Affiliate employees, consultants, and representatives.
CUSTOMER’S USE OF THE SERVICES; OWNERSHIP; DATA PROTECTION.
Customer Affiliates may purchase the DigitalGenius Service and/or Professional Services pursuant to the terms of this Agreement by executing Order Forms that incorporate by reference the terms of this Agreement. In each such case, all references in this Agreement to Customer shall be deemed to refer to such Customer Affiliate for the purposes of each such Order Form.
Subject to the terms and conditions contained in this Agreement, DigitalGenius grants to Customer and its Users a limited, non-sublicensable, non-exclusive, non-transferable right to access and use the features and functions of the applicable DigitalGenius Service, during the Term, solely for Customer's internal business purposes which, for the avoidance of doubt, includes the integration of the DigitalGenius Service into Customer's own products and services, including Customer's end user-facing applications.
2.3.1 Restrictions.
Customer shall not: (a) decompile, disassemble, reverse engineer or otherwise attempt to obtain or perceive the source code from which any software component of the DigitalGenius Service is compiled, interpreted, or trained on, and Customer acknowledges that nothing in this Agreement will be construed to grant Customer any right to obtain or use such code; (b) allow third parties other than Users to gain access to the DigitalGenius Service; (c) reproduce, modify, translate, or create derivative works of the DigitalGenius Service, or any underlying ideas, technology, or any portion thereof; (d) copy, rent, sell, lease, distribute, pledge, assign, or otherwise transfer, or encumber rights to the DigitalGenius Service, or any part thereof, or use them for the benefit of any third party; or (e) remove or otherwise alter any proprietary notices or labels from the DigitalGenius Service.
2.3.2 Applicable Laws
The DigitalGenius Service may be subject to applicable export laws and regulations; Customer shall not access or use the DigitalGenius Service in violation of any embargo or in violation of any export law or regulation. In addition, Customer shall not and shall ensure that all Users shall not use the DigitalGenius Service to: (a) interfere with or disrupt the integrity or performance of the DigitalGenius Service, the data contained therein or the machine learning model on which the DigitalGenius Service is based or (b) to gain or attempt to gain unauthorised access to the DigitalGenius Service, computer systems or networks related to the DigitalGenius Service or the machine learning model on which the DigitalGenius Service is based. Customer will ensure that its use of the DigitalGenius Service complies with all applicable laws, statutes, regulations or rules. DigitalGenius will ensure that its provision of the DigitalGenius Service and the Professional Services complies with all applicable laws, statutes, regulations or rules.
2.4.1 Ownership and Use of Customer Content.
Subject to the rights expressly granted in this Agreement, Customer owns and retains all right, title and interest in and to the Customer Content. Customer hereby grants to DigitalGenius, solely during the term of the Agreement, a non-exclusive, non-transferable right and license to use the Customer Content as reasonably required to provide the DigitalGenius Service, the Professional Services and related customer support services. In addition, DigitalGenius shall have the right to use Customer Content to improve the DigitalGenius Service and to develop additional offerings (including to use Customer Content for research and development, product development, testing, analytics, and to train, tune, validate and improve DigitalGenius' internal artificial intelligence and machine learning models that it develops or uses to provide the DigitalGenius Service), provided that: (a) Customer Content is anonymised or de-identified prior to use for such purposes, and where Customer Content contains personal data, the process of anonymisation or de-identification shall itself be carried out in accordance with the Data Processing Addendum; (b) such use and any resulting offerings, models or outputs shall not disclose Customer's or its Users' identity; and (c) the rights granted under this section do not derogate from DigitalGenius's confidentiality obligations as set forth in Section 5, and DigitalGenius shall ensure that Customer Content used for the purposes described in this section is not disclosed to third parties or Subprocessors beyond what is strictly necessary for the performance of such activities.
Subject to the rights expressly granted in this Agreement, DigitalGenius shall own and retain all right, title and interest in and to the DigitalGenius Service, its underlying software and internal artificial intelligence and machine learning models, the DigitalGenius Materials, the Professional Services, and all other products, works, and other intellectual property created or provided by DigitalGenius for the purposes of or in connection with this Agreement, excluding the Customer Content.
Customer hereby grants DigitalGenius a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual licence to use or incorporate into the DigitalGenius Service any suggestions, enhancement requests, recommendations or other feedback provided by Customer or its Users relating to the operation of the DigitalGenius Service or the Professional Services (collectively "Feedback"). The Customer shall have no obligation to provide any Feedback.
Each party shall:
(a) at all times during the term of this Agreement, comply with the Data Protection Legislation;
(b) to the extent applicable under the Data Protection Legislation, obtain and maintain all appropriate registrations required in order to allow that party to perform its obligations under this Agreement; and
(c) comply with the Data Processing Addendum.
CUSTOMER RESPONSIBILITIES.
Customer shall use commercially reasonable efforts to prevent unauthorised access to, or use of, the DigitalGenius Service, and notify DigitalGenius promptly of any such unauthorised use known to Customer. Customer shall be responsible for its security access protocols required in order to access the DigitalGenius Service. Customer shall have the sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Content and for making its own back-ups of the Customer Content. Customer shall be responsible for its Users' compliance with the terms of this Agreement.
With Customer's prior approval (which shall not be unreasonably withheld), DigitalGenius shall have the right to use Customer's name and logo in marketing materials and on DigitalGenius' website. Following a successful deployment of the DigitalGenius Service, Customer and DigitalGenius may agree to participate in a mutually developed case study.
FEES.
Customer will pay to DigitalGenius all fees in accordance with the relevant Order Form. Except as otherwise set out in the Order Form, in the Initial Term, all fees are based on rights acquired and not actual usage. After the expiry of the Initial Term, fees for each Renewal Term will be based on the fees set out in an Order Form. Except as otherwise set forth in an Order Form, all fees and charges due hereunder will be invoiced in advance and shall be due and payable within thirty (30) days of invoice date. Payment obligations are non-cancellable and all payments made are non-refundable.
Unless otherwise stated, fees do not include any local, state, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including value-added, use or withholding taxes (collectively, "Taxes"). Customer is responsible for paying all Taxes associated with its purchases hereunder (excluding taxes based on DigitalGenius's net income or property), even if such amounts are not listed in the Order Form.
Any amount not paid when due will be subject to interest in accordance with the Late Payments of Commercial Debts (Interest) Act 1998, determined and compounded daily from the date due until the date paid. Customer will reimburse any costs or expenses (including, but not limited to, collection agency fees, reasonable attorneys' fees and court costs) incurred by DigitalGenius to collect any amount that is not paid when due. If Customer fails to pay any undisputed amounts when due, then following fifteen (15) business days' notice, DigitalGenius shall have the right, in addition to any of its other rights or remedies, to suspend the DigitalGenius Service and provision of the Professional Services to Customer, and use by Customer of any DigitalGenius Materials, without liability to Customer, until such amounts (together with interest) are paid in full.
CONFIDENTIAL INFORMATION.
The Parties acknowledge that during the performance of this Agreement, each Party may have access to certain of the other Party's Confidential Information or Confidential Information of third parties that the disclosing Party is required to maintain as confidential. Both Parties agree that all items of Confidential Information are proprietary to the disclosing Party or such third party, as applicable, and will remain the sole property of the disclosing Party or such third party. Notwithstanding any other provision of this Agreement, DigitalGenius's Confidential Information includes, without limitation, the DigitalGenius Materials, and all methodologies, internal artificial intelligence/machine learning models and training data, features and functions embodied in and/or used by the DigitalGenius Service and the Professional Services.
Each receiving Party shall: (a) use Confidential Information disclosed by the other Party only as permitted by this Agreement; (b) hold in confidence and protect such Confidential Information from dissemination to, and use by, any third party by using the same degree of care, but no less than a reasonable degree of care, as the receiving Party uses to protect its own Confidential Information of a like nature against unauthorised dissemination and use; (c) restrict access to the disclosing Party's Confidential Information to such of its personnel, agents, and/or consultants, if any, who have a need to have access for purposes of this Agreement and who are legally bound to protect the confidentiality of the Confidential Information on terms substantially similar to the terms set forth in this Section 5; and (d) to the extent practicable, return or destroy all Confidential Information disclosed by the other Party that is in its possession upon termination or expiration of this Agreement.
Notwithstanding the foregoing, the provisions of Sections 5.1 and 5.2 will not apply to information that (a) is publicly available or in the public domain at the time disclosed; (b) is or becomes publicly available or enters the public domain through no fault of the receiving Party; (c) is rightfully communicated to the receiving Party by persons not bound by confidentiality obligations with respect thereto; (d) is already in the receiving Party's possession free of any confidentiality obligations with respect thereto at the time of disclosure; (e) is independently developed by the receiving Party without use of the disclosing Party's Confidential Information; or (f) is approved in writing for release or disclosure by the disclosing Party without restriction. A disclosure by one Party of Confidential Information of the other Party to the extent required by law shall not be considered a breach of this Agreement, provided the Party so compelled promptly provides the other Party with prior notice of such compelled disclosure (to the extent legally permitted) and provides reasonable assistance, at the other Party's cost, if the other Party wishes to contest the disclosure. Nothing in this Section 5 prevents DigitalGenius from identifying Customer as a customer of DigitalGenius to its investors or in a listing of other DigitalGenius customers.
If a Party discloses or uses (or threatens to disclose or use) any Confidential Information of the other Party in breach of this Section 5, the other Party shall have the right, in addition to any other remedies available, to seek injunctive relief to enjoin such acts, it being acknowledged by the Parties that any other available remedies may be inadequate.
WARRANTIES; DISCLAIMERS
Each Party hereby warrants (a) that it is duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation or organisation; (b) that, to such Party's knowledge, the execution and performance of this Agreement will not conflict with or violate any provision of any law having applicability to such Party; and (c) that this Agreement, when executed, will constitute a valid and binding obligation of such Party and will be enforceable against such Party in accordance with its terms.
DigitalGenius warrants that (i) the DigitalGenius Service shall perform materially in accordance with the terms of this Agreement and each Order Form; (ii) the functionality of the DigitalGenius Service will not be materially decreased during the Term; (iii) the Professional Services will be provided in a good and workmanlike manner; and (iv) the DigitalGenius Service and Professional Services do not, to DigitalGenius' knowledge, infringe any intellectual property rights of any third party.
Except as expressly set out in Sections 6.1 and 6.2, to the maximum extent permitted by applicable law, DigitalGenius excludes all express and implied warranties, conditions and representations, including but not limited to any warranty that the DigitalGenius Service or the Professional Services are fit for any particular purpose or will be error-free, accurate or uninterrupted, or shall meet the Customer's needs. The Customer acknowledges that the DigitalGenius Service, the Professional Services and the DigitalGenius Materials may be subject to limitations, delays and other problems inherent in the use of artificial intelligence models, the internet and electronic communications. Additionally, due to the nature of artificial intelligence tools generally some output of the DigitalGenius Service ("Output") may not always be accurate, complete, correct or unique, Output may be offensive, and other users may receive similar content from the DigitalGenius Service. DigitalGenius is not liable nor responsible for any Output, delays, delivery failures, incorrect information, or damage resulting from any such issues or problems, except to the extent that any of the same arises directly from any breach by DigitalGenius of any its obligations set out in this Agreement, subject to the limitations of liability set out in Section 7.
LIMITATIONS OF LIABILITY
7.1 Except with respect to Customer's breach of the restrictions set forth in Section 2.3, or either Party's indemnification obligations pursuant to Section 8, and subject to the exclusions set out in Section 8.2, in no event will either Party be liable to the other Party for (i) any incidental, indirect, special, consequential or punitive damages; (ii) loss of profits, loss of sales or business, loss of agreements or contracts, loss of anticipated savings, loss of use or corruption of software, data or information, loss of or damage to goodwill (whether such losses are direct or otherwise) or any Output; or (iii) liabilities to third parties arising from any source, even if a party has been advised of the possibility of such damages. This limitation upon damages and claims is intended to apply without regard to whether other provisions of this Agreement have been breached or have proven ineffective.
7.2 Notwithstanding any other terms of this Agreement, neither Party's liability is limited in respect of:
(a) death or personal injury caused by its negligence;
(b) fraud or fraudulent misrepresentation, or
(c) any other liability which cannot be limited or excluded by law.
7.3 Except with respect to Customer's breach of the restrictions set forth in Section 2.3 or either Party's indemnification obligations pursuant to Section 8, and liabilities which cannot be limited in accordance with Section 7.2, subject to Section 7.4 the cumulative liability of each Party during each year of the Term for all claims arising from or relating to this Agreement (including each Order Form entered pursuant to it), including, without limitation, any cause of action arising in contract, tort (including negligence), or strict liability, will not exceed the total amount of all fees paid or payable to DigitalGenius by Customer under Section 4 during the twelve (12) month period immediately prior to the act, omission or occurrence giving rise to such liability. This limitation of liability is intended to apply without regard to whether other provisions of this Agreement have been breached or have proven ineffective.
7.4 The cumulative liability of DigitalGenius during the Term arising from the indemnity under Section 8.1.5, will not exceed the greater of: (a) the total amount of all fees paid or payable to DigitalGenius by Customer under Section 4 during the twelve (12) month period immediately prior to the act, omission or occurrence giving rise to such liability, multiplied by five (5); and (b) USD $1,000,000. This limitation of liability is intended to apply without regard to whether other provisions of this Agreement have been breached or have proven ineffective.
INDEMNIFICATION.
8.1.1 DigitalGenius agrees to defend at its expense Customer from and against any third party claims, demands, suits or proceedings ("Claims") alleging that the DigitalGenius Service directly infringes a third party's intellectual property rights, and to indemnify Customer against all actually incurred losses, liabilities, reasonable costs (including reasonable attorneys' fees) or damages finally awarded to such third party pursuant to such Claims, or agreed to in a written settlement agreement signed by DigitalGenius.
8.1.2 The indemnity granted under Section 8.1.1 is subject to the Customer promptly notifying DigitalGenius in writing of the Claims, reasonably cooperating with DigitalGenius in respect of the Claims, and allowing DigitalGenius sole authority to control the defence and settlement of such Claims.
8.1.3 If a Claim is made or appears possible, Customer agrees to permit DigitalGenius, at DigitalGenius's sole discretion, to obtain a licence to permit Customer to continue to use the DigitalGenius Service or to modify or replace any allegedly infringing material to make it non-infringing. If DigitalGenius determines that none of these alternatives is reasonably available, DigitalGenius may terminate the Agreement as to the allegedly infringing material and Customer shall, upon written request from DigitalGenius, cease use of, and, if applicable, return, such materials as are the subject of the Claim.
8.1.4 The indemnity granted under Section 8.1.1 shall not apply if the alleged infringement arises, in whole or in part, from (i) modification of the DigitalGenius Service by Customer; (ii) any combination, operation or use of the DigitalGenius Service with other software, hardware, data or technology not provided by DigitalGenius or approved by DigitalGenius in writing; or (iii) Claims alleging that any Output infringes a third party's intellectual property rights. This Section 8.1 sets forth DigitalGenius's entire liability and Customer's exclusive remedies in the event of any Claim of infringement or misappropriation.
8.1.5 Subject to Section 7.4, DigitalGenius agrees to indemnify Customer against all actually incurred losses, liabilities, reasonable costs (including reasonable attorneys' fees) or damages finally awarded arising from: (a) breach by DigitalGenius of Section 2.7; or (b) any compromise or unintended disclosure of Customer's, Customer's Users' or Customer's end users' passwords or payment card information arising solely from DigitalGenius's negligence, wilful misconduct or security failures.
8.2.1 Customer agrees to defend at its expense DigitalGenius from and against any third-party Claims, demands, suits or proceedings arising from or related to (i) the Customer Content (including any violation of law by Customer in providing such Customer Content to DigitalGenius); and (ii) Customer's use of the DigitalGenius Service not in accordance with this Agreement.
8.2.2 DigitalGenius shall promptly notify Customer in writing of the third-party claim, reasonably cooperate with Customer, and allow Customer sole authority to control the defence and settlement of such Claims. Notwithstanding the foregoing, Customer will not settle any such third-party claim against DigitalGenius unless DigitalGenius consents to such settlement, and further provided that DigitalGenius will have the right, at its option and expense, to defend itself against any such third-party claim or to participate in the defence thereof by counsel of its own choice
TERM AND TERMINATION.
The Term of this Agreement and any Order Form entered into under this Agreement will commence on the Effective Date and will continue for the Initial Term. After the Initial Term and each Renewal Term and where agreed between the Parties, this Agreement will continue for a further one-year period (each a 'Renewal Term') until termination of the Agreement in accordance with its terms.
Customer may terminate this Agreement or any applicable Order Form by providing not less than 60 days' notice prior to the end of the Initial Term or applicable Renewal Term. Either Party may, at its option, terminate this Agreement or an Order Form in the event of a material breach by the other Party. Such termination may be effected only through a written notice to the breaching Party, specifically identifying the breach or breaches on which such notice of termination is based. The breaching Party will have a right to cure such breach or breaches within thirty (30) days of receipt of such notice, and this Agreement will terminate in the event that such cure is not made within such thirty (30)-day period. Termination of this Agreement shall terminate each active Order Form.
Upon any termination of this Agreement, Customer will (a) immediately discontinue all use of the DigitalGenius Service, the Professional Services and any DigitalGenius Confidential Information (including any DigitalGenius Materials); (b) return to DigitalGenius all DigitalGenius Confidential Information and any DigitalGenius Materials; and (c) promptly pay to DigitalGenius all amounts due and payable under this Agreement.
Upon any termination of this Agreement, Customer will (a) immediately discontinue all use of the DigitalGenius Service, the Professional Services and any DigitalGenius Confidential Information (including any DigitalGenius Materials); (b) return to DigitalGenius all DigitalGenius Confidential Information and any DigitalGenius Materials; and (c) promptly pay to DigitalGenius all amounts due and payable under this Agreement.
The provisions of Section 2.3, 2.4, 4, 5, 6.3, 7, 8, 9.3 and Section 10 will survive the expiration or termination of this Agreement.
MISCELLANEOUS
This Agreement, together with all Order Forms hereunder, sets forth the entire agreement and understanding between the Parties with respect to the subject matter of this Agreement and supersedes and merges all prior and contemporaneous oral and written agreements, discussions and understandings between the Parties with respect to the subject matter of this Agreement. Neither Party is bound by any conditions, inducements or representations other than as expressly provided for in this Agreement and any Order Forms. To the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or addendum hereto or any Order Form, the terms of this Agreement shall prevail unless such exhibit, addendum or Order Form expressly state otherwise. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer purchase order or in any other Customer order documentation (excluding Order Forms) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.
In making and performing this Agreement, Customer and DigitalGenius act and will act at all times as independent contractors, and, except as expressly set forth herein, nothing contained in this Agreement will be construed or implied to create an agency, partnership or employer and employee relationship between them. Except as expressly set forth herein, at no time will either Party make commitments or incur any charges or expenses for, or in the name of the other Party.
For notices that are directed to Customer as part of DigitalGenius' general customer base, DigitalGenius may give notice by email to Customer's e-mail address on record. Notice shall be deemed to have been given at the time at which the email was sent.
10.4.1 Notices Specific to the Parties
Except as provided for in Section 10.4, notices required by or relating to this Agreement will be in writing and will be sent by means of overnight courier or certified mail, postage prepaid, to the Parties at their respective addresses set forth in the most recent Order Form, or addressed to such other address as the receiving Party may have given by written notice in accordance with this provision. All notices required by or relating to this Agreement may also be communicated by email, provided that the sender receives and retains confirmation of successful transmittal to the recipient. In the event that either Party delivers any notice by means of email in accordance with the preceding sentence, such Party will promptly thereafter send a duplicate of such notice in writing by means of certified mail, postage prepaid, to the receiving Party, addressed as set forth above or to such other address as the receiving Party may have previously substituted by written notice to the sender.
This Agreement may not be amended or modified except in a writing duly executed by authorised representatives of both Parties.
Neither Party shall assign this Agreement, in whole or in part, without the express, prior written consent of the other Party (which consent shall not be unreasonably withheld), and, absent such consent, any attempted assignment or delegation will be null, void and of no effect. Notwithstanding the foregoing, either Party may freely assign this Agreement in its entirety (including all Order Forms), upon notice and without the consent of the other Party, to its successor in connection with a merger, acquisition, corporate reorganisation, or sale of all or substantially all of its assets.
If any provision of this Agreement is invalid or unenforceable for any reason in any jurisdiction, such provision will be construed to have been adjusted to the minimum extent necessary to cure such invalidity or unenforceability. The invalidity or unenforceability of one or more of the provisions contained in this Agreement will not have the effect of rendering any such provision invalid or unenforceable in any other case, circumstance or jurisdiction, or rendering any other provisions of this Agreement invalid or unenforceable whatsoever.
No waiver under this Agreement will be valid or binding unless set forth in writing and duly executed by the Party against whom enforcement of such waiver is sought. Any such waiver will constitute a waiver only with respect to the specific matter described therein and will in no way impair the rights of the Party granting such waiver in any other respect or at any other time. Any delay or forbearance by either Party in exercising any right hereunder will not be deemed a waiver of that right.
Except with respect to payment obligations hereunder, if a Party is prevented or delayed in the performance of its obligations hereunder as a result of circumstances beyond such Party's reasonable control, including, by way of example, war, riot, fires, floods, epidemics, or failure of public utilities or public transportation systems, such failure or delay will not be deemed to constitute a breach of this Agreement, but such obligation will remain in full force and effect and will be performed or satisfied as soon as reasonably practicable after the termination of the relevant circumstances causing such failure or delay, provided that if such Party is prevented or delayed from performing for more than ninety (90) days, the other Party may terminate this Agreement upon thirty (30) days written notice.
10.10.1 US Location
If the Customer is based in the United States of America, this Agreement shall be governed and controlled in accordance with the laws of the State of California, without regard to conflicts of law principles that would apply the laws of any other jurisdiction. The state and federal courts located in San Francisco County, California shall have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement.
10.10.2 Rest of World
If the Customer is based anywhere in the world other than the United States of America, this Agreement shall be governed and controlled in accordance with the laws of England and Wales, without regard to conflicts of law principles that would apply the laws of any other jurisdiction. The courts located in London, England shall have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement.
10.10.3 The United Nations Convention on the International Sale of Goods does not apply to this Agreement. Each Party hereby consents to the exclusive jurisdiction of the courts as specified in Section 10.10.2 or 10.10.1 as applicable, and waives any objection it might otherwise have to venue, personal jurisdiction, inconvenience of forum, and any similar doctrine. Each party also hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement. In any action to enforce this Agreement the prevailing party will be entitled to recover its costs and attorneys’ fees.
The DigitalGenius Service is a "commercial item" as that term is defined at 48 C.F.R. 2.101, consisting of "commercial computer software" and "commercial computer software documentation" as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end users acquire the DigitalGenius Service with only those rights set forth therein.
This Agreement may be executed in any number of counterparts, each of which when so executed will be deemed to be an original and all of which when taken together will constitute one Agreement. A facsimile, PDF or any other type of copy of an executed version of this Agreement signed by a Party is binding upon the signing Party to the same extent as the original of the signed Agreement.
Data Processing Addendum
This Data Processing Addendum (the "Addendum") is incorporated into and forms part of this Agreement and is entered into between DigitalGenius and the Customer. For the purposes of this Addendum, Customer is the Data Controller and DigitalGenius is the Data Processor in respect of Customer Personal Data.
In the event of any conflict or inconsistency between this Addendum and the main body of this Agreement, this Addendum shall prevail in relation to matters concerning the Processing of Customer Personal Data. For the avoidance of doubt, the limitations of liability set out in the Agreement shall apply to any claims arising under or in connection with this Addendum.
1.1 In this Addendum, the following terms shall have the meanings set out in this paragraph 1:
1.2 "Customer Personal Data" means any Personal Data Processed by DigitalGenius on behalf of Customer pursuant to or in connection with this Agreement;
1.3 "Data Subject Request" means the exercise of rights by Data Subjects of Customer Personal Data under Data Protection Legislation;
1.4 "Subprocessor" means any third party appointed by or on behalf of DigitalGenius to Process Customer Personal Data;
1.5 "Working Day" means Monday to Friday, excluding public holidays in the UK.
In this Addendum, the terms "Data Controller", "Data Processor", "Data Subject", "Personal Data", "Personal Data Breach", "Process" and "Processing" and "Supervisory Authority" shall have the meanings ascribed to such terms in the Data Protection Legislation.
Unless otherwise defined herein, all capitalised terms shall have the meaning given to them in this Agreement. References to this Addendum include Schedule 1.
2.1 DigitalGenius shall:
2.1.1 comply with all applicable Data Protection Legislation in Processing Customer Personal Data; and
2.1.2 not Process Customer Personal Data other than (i) on Customer's instructions and (ii) as required by applicable laws.
To the extent permitted by applicable laws, DigitalGenius shall inform Customer of any Processing carried out under paragraph 2.1.2 and the relevant legal requirements requiring such Processing before the relevant Processing of that Customer Personal Data by DigitalGenius.
2.2 Customer instructs DigitalGenius to Process Customer Personal Data as necessary:
2.2.1 to provide the DigitalGenius Service to Customer, including to improve and update the DigitalGenius Service and to carry out Processing initiated by Users in their use of the DigitalGenius Service;
2.2.2 to perform DigitalGenius' obligations and exercise DigitalGenius' rights under this Agreement.
2.3 The Parties agree that Schedule 1 to this Addendum sets out certain information regarding DigitalGenius' Processing of Customer Personal Data as required by Article 28(3) of the GDPR. Customer may amend Schedule 1 on written notice to DigitalGenius from time to time as Customer reasonably considers necessary to meet any applicable requirements of Data Protection Legislation. Where DigitalGenius receives an instruction from Customer that, in its reasonable opinion, infringes the GDPR, DigitalGenius shall inform Customer.
2.4 Customer acknowledges and agrees that any instructions issued by Customer with regard to the Processing by DigitalGenius of Customer Personal Data pursuant to or in connection with this Agreement shall:
2.4.1 be strictly required for the sole purpose of ensuring compliance with Data Protection Legislation; and
2.4.2 not relate to the scope of the DigitalGenius Service or otherwise materially change the services to be provided by DigitalGenius under this Agreement.
Notwithstanding anything to the contrary herein, DigitalGenius may terminate this Agreement in its entirety upon written notice to Customer with immediate effect if DigitalGenius considers that (i) it is unable to adhere to, perform or implement any instructions issued by Customer due to the technical limitations of its systems, equipment and/or facilities, and/or (ii) to adhere to, perform or implement any such instructions would require disproportionate effort. Customer represents and warrants on an ongoing basis that, for the purposes of Article 6 of the GDPR, there is, and will be throughout the term of this Agreement, a legal basis for the processing by DigitalGenius of Customer Personal Data in accordance with this Addendum and this Agreement, including any instructions issued by Customer from time to time in respect of such Processing.
(a) DIGITALGENIUS PERSONNEL. DigitalGenius shall take reasonable steps to ensure the reliability of any employee, agent or contractor who may Process Customer Personal Data, ensuring in each case that access is strictly limited to those individuals who need to know or access the relevant Customer Personal Data for the purposes described in this Addendum, and to comply with applicable laws, ensuring that all such individuals are subject to confidentiality undertakings or professional or statutory obligations of confidentiality.
(b) SECURITY. Taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of Processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, DigitalGenius shall in relation to the Customer Personal Data implement appropriate technical and organisational measures to ensure a level of security appropriate to that risk, including, as appropriate, the measures referred to in Article 32(1) of the GDPR. In assessing the appropriate level of security, DigitalGenius shall take account in particular of the risks presented by Processing, in particular from a Personal Data Breach. On Customer's request, DigitalGenius shall as soon as reasonably practicable following such request provide to Customer written information describing in reasonable detail the technical and organisational measures taken by DigitalGenius in relation to the Customer Personal Data pursuant to this paragraph to the extent reasonably required by Customer to respond to a request issued by a Supervisory Authority.
(c) SUBPROCESSING. Customer grants DigitalGenius a general authorization to appoint Subprocessors to Process Customer Personal Data in connection with the provision of the DigitalGenius Service, subject to the notification and objection mechanism set out in this paragraph and the other requirements of this paragraph. A list of DigitalGenius's current Subprocessors shall be made available at the DigitalGenius Trust Centre and shall be revised from time to time. DigitalGenius may continue to use those Subprocessors already engaged by DigitalGenius as at the date of this Addendum. DigitalGenius shall give Customer prior written notice of the appointment of any new Subprocessor, including reasonable details of the Processing to be undertaken by the Subprocessor. If, within ten (10) Working Days of receipt of that notice, Customer notifies DigitalGenius in writing of any objections on reasonable grounds to the proposed appointment: (a) DigitalGenius shall use commercially reasonable efforts to make available a commercially reasonable change in the provision of the DigitalGenius Service which avoids the use of that proposed Subprocessor; and (b) where (i) such a change cannot be made within sixty (60) days from DigitalGenius's receipt of Customer's notice, and/or (ii) no commercially reasonable change is available, notwithstanding anything in this Agreement, DigitalGenius and/or Customer may by written notice to the other Party with immediate effect terminate this Agreement either in whole or to the extent that it relates to the DigitalGenius Service which require the use of the proposed Subprocessor. With respect to each Subprocessor, DigitalGenius shall: (x) before the Subprocessor first Processes Customer Personal Data, carry out adequate due diligence to ensure that the Subprocessor is capable of providing the level of protection for Customer Personal Data required by this Addendum; and (y) ensure that the arrangement between DigitalGenius and the Subprocessor is governed by a written contract including terms which offer at least an equivalent level of protection for Customer Personal Data as those set out in this Addendum and meet the requirements of Article 28(3) of the GDPR. On Customer's request, DigitalGenius shall as soon as reasonably practicable following such request (1) provide to Customer a list of the then-current Subprocessors engaged by DigitalGenius; and (2) confirm that the arrangements between DigitalGenius and such Subprocessors meet the requirements set out above.
(d) DATA SUBJECT RIGHTS. Taking into account the nature of the Processing, DigitalGenius shall, at Customer's cost, provide Customer with such assistance as is reasonably necessary and technically feasible to assist Customer in fulfilling its obligations to respond to Data Subject Requests under Data Protection Legislation, including, as applicable and to the extent technically feasible, the rights at Articles 15 to 22 of the GDPR (and equivalent provisions of the UK GDPR). Customer shall remain the data controller responsible for determining whether and how to respond to each such request.
(e) PERSONAL DATA BREACH. DigitalGenius shall notify Customer without undue delay (and in any event within seventy-two (72) hours) upon DigitalGenius becoming aware of a Personal Data Breach affecting Customer Personal Data, providing Customer with sufficient information, insofar as such information is within DigitalGenius' possession, to allow Customer to meet any obligations to report or inform Data Subjects of the Personal Data Breach under Data Protection Legislation. DigitalGenius shall co-operate with Customer and take such reasonable commercial steps as may be directed by Customer to assist in the investigation, mitigation and remediation of each such Personal Data Breach.
(a) DATA PROTECTION IMPACT ASSESSMENT AND PRIOR CONSULTATION. DigitalGenius shall provide reasonable assistance to Customer, at Customer's cost, with any data protection impact assessments, and prior consultations with Supervisory Authorities, which Customer reasonably considers to be required of Customer by Article 35 or 36 of the GDPR, in each case solely in relation to Processing of Customer Personal Data by, and taking into account the nature of the Processing and information available to, DigitalGenius.
(b) DELETION OR RETURN OF CUSTOMER PERSONAL DATA. Upon termination or expiry of this Agreement, DigitalGenius shall, at Customer's option (to be notified to DigitalGenius in writing within thirty (30) days of termination or expiry), delete or return all Customer Personal Data. If Customer does not make an election within such period, DigitalGenius shall delete the Customer Personal Data. DigitalGenius shall comply with this obligation within ninety (90) days of the relevant date, unless required to retain such data under applicable law, in which case DigitalGenius shall isolate and protect the Customer Personal Data from any further Processing except to the extent required by such law. Notwithstanding the foregoing, DigitalGenius may retain Customer Personal Data in backup systems until such backups are overwritten or deleted in the ordinary course of business.
(c) AUDIT RIGHTS. Subject to the limitations in this paragraph, DigitalGenius shall make available to Customer on request information reasonably necessary to demonstrate compliance with this Addendum. DigitalGenius may satisfy its obligations under this paragraph by providing Customer with copies of relevant third-party audit reports or certifications (such as SOC 2 Type II or ISO 27001) that are no more than twelve (12) months old. Where such reports or certifications are not available or do not reasonably address Customer's compliance concerns, DigitalGenius shall allow for and contribute to audits, including inspections, by Customer or a reputable independent auditor mandated by Customer in relation to the Processing of the Customer Personal Data by DigitalGenius, provided that any such audit shall be limited in scope to DigitalGenius's compliance with this Addendum and shall not extend to the data of DigitalGenius's other customers.
(d) Customer shall give DigitalGenius not less than thirty (30) days' prior written notice of any audit (unless a shorter period is required by a Supervisory Authority). Any auditor mandated by Customer must enter into a confidentiality agreement with DigitalGenius on reasonable terms before commencing the audit. Customer and its auditors shall conduct any audit during normal business hours and shall use reasonable endeavours to minimise disruption to DigitalGenius's business and to avoid compromising the confidentiality or security of the data of DigitalGenius's other customers. Audits shall be limited to one (1) per twelve-month period, except where additional audits are reasonably necessary following a Personal Data Breach or are required by a Supervisory Authority. Unless otherwise agreed in writing, Customer shall bear all third-party costs of any audit and shall reimburse DigitalGenius's reasonable costs and time incurred in connection with the audit, payable within thirty (30) days of invoice.
(e) RESTRICTED TRANSFERS. Where DigitalGenius or any of its Subprocessors transfers Customer Personal Data to a country or territory outside the United Kingdom or European Economic Area that is not subject to an adequacy decision, DigitalGenius shall ensure that appropriate safeguards are in place for such transfer in accordance with Data Protection Legislation, including by entering into standard contractual clauses or equivalent measures with the relevant Subprocessor where required. For clarity, no restricted transfer arises between DigitalGenius and Customer by reason of this Addendum or this Agreement, and no standard contractual clauses or UK Addendum are required to be entered into between Customer and DigitalGenius.