Terms & Conditions
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:
1. DEFINITIONS.
1.1 “Confidential Information”
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.
1.2 “Customer Affiliate”
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.
1.3 “Customer Content”
means the data and content made available via the DigitalGenius Service by or on behalf of Customer.
1.4 “Data Protection Legislation”
means all applicable legislation for the time being in force pertaining to data protection, data privacy, data retention and/or data security including in the UK and Europe, the General Data Protection Regulation (Regulation 2016/679) ("GDPR"), Retained Regulation (EU) 2016/679 ("UK GDPR") and the Privacy and Electronic Communication Directive (Directive 2002/58/EC) and national legislation implementing or supplementing such legislation in the United Kingdom (including the Data Protection Act 2018), all local legislation in each applicable jurisdiction, and all associated codes of practice and other guidance issued by any applicable data protection authority in each case, to the extent in force, and as such are updated, amended or replaced from time to time;
1.5 “DigitalGenius Materials”
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.
1.6 “DigitalGenius Service”
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.
1.7 “Effective Date”
means the date for commencement of the DigitalGenius Service and any Professional Services as set out in the Order Form.
1.8 “Initial Term”
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.
1.9 “Order Form”
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.
1.10 “Privacy Policy"
means the privacy policy located at privacy-policy.
1.11 “Professional Services”
means consulting, implementation and technical services which may be provided by DigitalGenius under this Agreement, as described more fully in an Order Form.
1.12 “Renewal Term”
1.13 “Term”
1.14 “Users”
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, representatives and employees, consultants and representatives.
2. CUSTOMER’S USE OF THE SERVICES; OWNERSHIP; DATA PROTECTION.
2.1 Customer Affiliates
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.
2.2 Provision of Access.
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 the features and functions of the applicable DigitalGenius Service, during the Term, solely for Customer's internal business purposes.
2.3 Usage Restrictions.
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.
2.4 Retained Rights; Ownership; Feedback.
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 copy and 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 the use of Customer Content to improve DigitalGenius' internal artificial intelligence and machine learning models that it develops to provide the DigitalGenius Service), provided such offerings shall not disclose Customer's or its Users' identity. The foregoing shall not limit, in any way, DigitalGenius's confidentiality obligations as set forth in Section 5. In respect of any personal data contained in Customer Content which DigitalGenius processes pursuant to this section, DigitalGenius shall comply with its Privacy Policy.
2.4.2 Ownership of the DigitalGenius Service.
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.
2.4.3 Feedback.
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.
2.5 Data Protection and Privacy.
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 attached to this Agreement unless a separate Data Processing Agreement is in place between DigitalGenius and the Customer in which case such Data Processing Agreement shall take precedence over this Section 2.5(c).
3. CUSTOMER RESPONSIBILITIES.
3.1 Obligations.
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.
3.2 Marketing.
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.
4. FEES.
4.1 Fees and Payment.
Customer will pay to DigitalGenius, without offset or deduction, all fees in accordance with the relevant Order Form. In the Initial Term, all fees are based on rights acquired and not actual usage. Except as otherwise set out in the Order Form, in the Initial Term, all fees are based on rights acquired and not actual usage. 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.
4.2 Taxes.
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.
4.3 Late Payments.
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 amounts when due, then following ten (10) 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.
5. CONFIDENTIAL INFORMATION.
5.1 Ownership of 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.
5.2 Mutual Confidentiality Obligations
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.
5.3 Confidentiality Exceptions
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.
5.4 Remedies.
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.
6. WARRANTIES; DISCLAIMERS
6.1 Mutual Warranties.
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.
6.2 Performance Warranties
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.
6.3 Disclaimer
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 DigitalGenius Service, the Professional Services and the DigitalGenius Materials are provided 'as-is'. 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 artificial intelligence tools generally some output of the DigitalGenius Service may not always be accurate, complete, or unique and other users may receive similar content from the DigitalGenius Service. The output of the DigitalGenius Service ("Output") may be incomplete, incorrect, inaccurate and/or offensive. DigitalGenius is not liable nor responsible for any Output, delays, delivery failures, incorrect information, or damage resulting from any such issues or problems.
7. LIMITATIONS OF LIABILITY
7.1
Except with respect to customer's breach of the restrictions set forth in Section 2.2, or either Party's indemnification obligations pursuant to Section 8, to the extent permitted by applicable law, 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 2.2 or either Party's indemnification obligations pursuant to Section 8, and liabilities which cannot be limited in accordance with Section 7.2, 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.
8. INDEMNIFICATION.
8.1 Indemnification by DigitalGenius
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 Claim, reasonably cooperating with DigitalGenius in respect of the Claim, and allowing DigitalGenius sole authority to control the defence and settlement of such Claim.
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.
8.2 Indemnification by Customer.
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); (ii) Customer's use of the DigitalGenius Service not in accordance with this Agreement; or (iii) Customer's end customer use of the DigitalGenius Service, including any claim based on the Output (a "Customer Claim") and to indemnify and hold DigitalGenius harmless against all losses, liabilities, costs (including reasonable attorneys' fees) or damages finally awarded to such third party pursuant to such Customer Claims, or agreed to in a written settlement agreement signed by Customer.
8.2.2
DigitalGenius shall promptly notify Customer in writing of the Customer Claim, reasonably cooperate with Customer, and allow Customer sole authority to control the defence and settlement of such Customer Claim. 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 Customer Claim or to participate in the defence thereof by counsel of its own choice
9. TERM AND TERMINATION.
9.1 Term.
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.
9.2 Termination.
Customer may terminate this Agreement (or any 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, 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.
9.3 Effect of Termination
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.
9.4 Survival
The provisions of Sections 2.2-2.4, 5, 6.2, 7, 8, 9.3, 9.4 and 10 will survive the expiration or termination of this Agreement.
10. MISCELLANEOUS
10.1 Entire Agreement
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.
10.2 Independent Contractors
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.
10.3 Notices
10.3.1 Notices to General Customer Base.
For notices that are directed to Customer as part of DigitalGenius' general customer base, DigitalGenius may give notice by means of a general notice on the DigitalGenius Service, or by electronic mail to Customer's e-mail address on record. Notice on the DigitalGenius Service shall be deemed to have been given upon the expiration of forty eight (48) hours after posting.
10.3.2 Notices Specific to the Parties
Except as provided for in Section 10.3.1, 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.
10.4 Amendments; Modifications
This Agreement may not be amended or modified except in a writing duly executed by authorised representatives of both Parties.
10.5 Assignment
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.
10.6 Severability
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, of rendering any other provisions of this Agreement invalid or unenforceable whatsoever.
10.7 Waiver
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.
10.8 Force Majeure
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.
10.9 Governing Law and Jurisdiction
10.9.1 US Location
If the Customer is based on 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.
10.9.2 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.
10.9.3
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 10.9.2 or 10.9.1 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.
10.10 Counterparts
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 is part of and subject to the terms of the Master Subscription Agreement entered into between DigitalGenius and the Customer.
1.
In this Data Processing Addendum, the terms "personal data", "supervisory authority", "data subject", "process" "controller" and "processor" shall have the meanings given in the applicable Data Protection Legislation. The parties acknowledge that the types of personal data processed pursuant to this Agreement (including the subject matter, duration, nature and purpose of the processing and the categories of data subject) are as described below, and may be varied or further described in the applicable Order Form:
(a) Types of personal data: Name, email address, phone number, physical address.
(b) Duration of processing: For the term of the Agreement or if earlier, the date upon which processing is no longer necessary for the purposes of either party performing its respective obligations under this Agreement (to the extent applicable).
(c) Nature of processing: Collection, storage, and electronic viewing.
(d) Purpose of processing: Receiving personal data for the purpose of performing the DigitalGenius Services and Professional Services (as applicable) under this Agreement.
(e) Categories of data subject: Past, present and prospective customers of Customer and Customer Affiliates.
2.
DigitalGenius shall maintain records of all processing operations under its responsibility that contain at least the minimum information required by the Data Protection Legislation, and shall make such information available to any applicable supervisory authority on request.
3.
To the extent DigitalGenius receives from, or processes any personal data on behalf of Customer, DigitalGenius shall:
(a) process such personal data: (i) only in accordance with Customer's written instructions from time to time (including those set out in the applicable Order Form), unless it is otherwise required by applicable law (in which case, unless such law prohibits such notification on important grounds of public interest, DigitalGenius shall notify Customer of the relevant legal requirement before processing the personal data), and (ii) only for so long as necessary for the provision of the DigitalGenius Services or Professional Services (as applicable);
(b) not process such personal data for any purpose other than those set out in the applicable Order Form or otherwise expressly authorised by Customer;
(c) take reasonable steps to ensure the reliability of all its personnel who have access to such personal data, and ensure that any such personnel are committed to binding obligations of confidentiality when processing such personal data (including an obligation of confidentiality contained in the applicable employment contract or contract for services);
(d) implement appropriate technical and organisational measures to ensure a level of security appropriate to the risks that are presented by any processing of such personal data, in particular protection from accidental loss or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, personal data transmitted, stored or otherwise processed;
(e) not transfer such personal data outside the UK unless adequate contractual or other assurances have first been put in place such as will enable each party to comply with the requirements of the Data Protection Legislation;
(f) inform Customer without undue delay if any such personal data is (while within DigitalGenius's or its subcontractors' or affiliates' possession or control) subject to a personal data breach (as defined in Article 4 of GDPR) or is lost or destroyed or becomes damaged, corrupted or unusable;
(g) shall engage any sub-processors only on the basis of a written contract between DigitalGenius and sub-processor which imposes on the sub-processor terms equivalent to the provisions of this Section 3. DigitalGenius shall be responsible for the management of any permitted sub-processor and its compliance with such terms and shall be directly liable to Customer for any breach of the same. Customer hereby consents to DigitalGenius appointing AWS as its sub-processor in Oregon, USA (in respect of Customers located in the United States of America, the data processing location shall be Oregon USA, and in respect of Customers located elsewhere in the world, the data processing location shall be Frankfurt, Germany);
(h) not disclose any personal data to any data subject or to a third party other than at the written request of Customer or as expressly provided for in the Agreement or as otherwise required by applicable law;
(i) as Customer so directs, return or irretrievably delete all personal data to the extent it is reasonably accessible on termination or expiry of the applicable Order Form, and not make any further use of such personal data (except to the extent applicable law requires continued storage of the personal data by DigitalGenius and DigitalGenius has notified Customer accordingly);
(j) provide to Customer and any applicable supervisory authority all information and assistance necessary or desirable to demonstrate or ensure compliance with the obligations in this Section 3 and/or the Data Protection Legislation;
(k) on written request (not more than once in any 12-month period) provide to Customer a third-party audit report and such records of DigitalGenius relevant to the provision of any Services as may be reasonably required to verify DigitalGenius' compliance with this Data Processing Schedule, subject to Customer observing any obligations of confidentiality owed by the DigitalGenius to its other customers;
(l) take such steps as are reasonably required to assist Customer in ensuring compliance with its obligations under Articles 30 to 36 (inclusive) of GDPR;
(m) notify Customer within two (2) business days if it receives a request from a data subject to exercise its rights under the Data Protection Legislation in relation to that person's personal data; and
(n) provide Customer with its full co-operation and assistance in relation to any request made by a data subject to exercise its rights under the Data Protection Legislation in relation to that person's personal data.
4.
If either party receives any complaint, notice or communication which relates directly or indirectly to the processing of personal data by the other party or to either party's compliance with the Data Protection Legislation, it shall as soon as reasonably practicable notify the other party and it shall provide the other party with reasonable co-operation and assistance in relation to any such complaint, notice or communication.