Advertiser Terms

These Terms were last updated on 7th October, 2019

This document and web-page is the Agreement between LeadsEngine Ltd and the Customer. In the event of any conflict, these terms shall prevail over any other terms and conditions otherwise verbal or written. These terms are updated relgularly and it is your responsibility to ensure you check for changes as your continued use of the platform is your acceptance of these terms,

The Customer acknowledges that they fully understand the lead generation or advertising process for the campaign type(s) submitted on the platform. Upon approval and acceptance of an advertising campaign by LeadsEngine Ltd from the Customer the advertiser enters into an agreement with LeadsEngine Ltd under the following terms:

Customers are billed by LeadsEngine Ltd at the billing method chosen by an advertiser when placing their campaign order, the methods available are or Cost Per Lead (CPL), Cost Per Click (CPC) and Cost Per Action (CPA), Cost Per Install (CPI) unless otherwise agreed.

Customer will have their advertising budget consumed at the billing method chosen by the advertiser, unless otherwise agreed in writing. 

A detailed CPL rejection policy applies for CPL and Pixel Tracked campaigns within the advertisers account and this applies specifically to data  and conversion reporting collected by LeadsEngine Ltd on behalf of the advertiser.

LeadsEngine Ltd are not able to guarantee the delivery of data outbound from the platform to the Customer by any of the available delivery methods including email, SMS, or CRM integration, specifically through technical reasons outside of the control of LeadsEngine Ltd.

Customer understands that upon submission of an advertising campaign on the platform, an obligation exists to provide LeadsEngine Ltd with applicable content and creatives to serve the contracted campaign. LeadsEngine Ltd is not responsible for errors or omissions in any advertising materials provided by LeadsEngine Ltd or the advertiser or its agency. Any edits, changes, of advertising requested of LeadsEngine Ltd by the Customer, must be in writing. LeadsEngine Ltd reserves the right at any time and for any reason to decline and/or retract any advertisement it deems inappropriate. LeadsEngine Ltd will not be held liable for taking such action, and the advertiser will be refunded according to the refund terms.

Where LeadsEngine Ltd build, create or design advertising creatives for the advertiser where the advertiser takes advtange of our paid creative design services it is agreed that:

Changes to said creatives will only be permissible with explicit authorisation from the advertiser.

LeadsEngine Ltd may in it's sole discretion remove such creatives at any time without notice from it's advertising network

If you submit materials to us, you agree:

that we have permission to: use, copy, distribute, publish, republish, store, archive, syndicate, transmit, perform, in relation to such material in any manner and in any format and/or media

to any moral rights in the material submitted

that we may disclose your identity to any third party making any claim or assertion of any kind in relation to your material

In submitting material to us, you warrant that any material you submit:

is your own original work and that you own the copyright and any other relevant rights

is not obscene, threatening, menacing, offensive, defamatory, abusive, in breach of confidence, in breach of any intellectual property right (including, without limitation, copyright) or otherwise in breach of or violates any applicable law or regulation or code.

you shall indemnify us and keep us fully indemnified against any third party liabilities, claims, costs, loss or damage we incur as a result of publishing material you submit to us, including consequential losses.

Upon approval of any submitted content it is agreed that LeadsEngine Ltd will advertise only the content approved for publication between LeadsEngine Ltd and the advertiser. Any changes to creatives will be jointly authorised and approved by the advertiser and Lead Ltd.

Customer will have exclusivity and on all data generated on advertiser campaigns within the leadsengine.

Customers with special requests for additional agreements above these terms are required submit these for approval to an authorised representative at LeadsEngine Ltd. We reserve the right at our sole discretion to decline acceptance any requests outside of this agreement.

LeadsEngine Ltd provide all Customerss support through different recorded channels:

Recorded Support Tickets

Telephone support during business hours, excluding weekends

Customer will have access to an account manager during business hours Monday to Thursday 10am - 6pm and Fridays 10am-5pm GMT (London). Customers are required to utilize support tickets within the platform on all topics relating to account and/or campaigns. 

It is understood that, in consideration of the publication of advertising, the advertiser or agency will each fully hold harmless and fully indemnify LeadsEngine Ltd from and against any and all claims, demands, suits, actions, proceedings recoveries or expenses of any nature whatsoever. This will include reasonable fees of counsel selected by LeadsEngine Ltd, arising directly or indirectly from the publication of any advertisement (including, but not limited to, claims of infringement of copyright or trademark or claims of libel or invasion of privacy) or based upon or arising out of any matter or thing contained in any advertisement.

In consideration of the terms contained in this agreement and the payment of fees by Customers to LeadsEngine Ltd, LeadsEngine Ltd agrees to supply the affiliate and publisher internet/ web traffic subject to the terms of this agreement.

LeadsEngine Ltd  do NOT accept card payments on the platform at this time. Payment is to be made into any of our various currency accounts.  All Customerss are required to make a pre-payment for their advertising fees in advance by crediting their account on the platform through the available payment methods. LeadsEngine Ltd do not provide any lines of credit and any request for credit will be rejected. The minimum fee payment amount will be highlight within the platform and are subject to change without notice.

It is agreed that the Customers:

will be reasonable and co-operative with LeadsEngine Ltd in supplying the advertising service and will comply with LeadsEngine Ltd’s reasonable conditions of use and requirements.

will provide LeadsEngine Ltd with such information and documents as it may reasonably request for the proper performance of the advertising service and that the information provided is accurate in all material respects.

will not take any actions which may interfere with or obstruct the proper performance of the advertising engine/ platform

LeadsEngine Ltd cannot guarantee that all and every Affiliate will comply with any rules set by the Customers as per the restrictions and terms set by the advertiser and LeadsEngine Ltd is not liable for any such failure to comply or for other acts or omissions of and and all affiliates.

All  advertising campaigns, offers and adverts are required to be served only via LeadsEngine Ltd’s server and tracking methods unless agreed jointly in writing. The Customers agrees to supply creatives as LeadsEngine Ltd may require.

The Customers is solely responsible for the the all content of advertisements and the Customers agrees and confirms that if materials are submitted to us:

that we have permission to: use, copy, distribute, publish, republish, store, archive, syndicate, transmit, perform, in relation to such material in any manner and in any format and/or media to any moral rights in the material submitted.

that we may disclose your identity to any third party making any claim or assertion of any kind in relation to your material.

In submitting material to us, you warrant that any material you submit:

it is your own original work and that you own the copyright and any other relevant rights.

is not obscene, threatening, menacing, offensive, defamatory, abusive, in breach of confidence, in breach of any intellectual property right (including, without limitation, copyright) or otherwise in breach of or violates any applicable law or regulation or code.

and you shall indemnify us and keep us fully indemnified against any third party liabilities, claims, costs, loss or damage we incur as a result of publishing material you submit to us, including consequential losses.

LeadsEngine Ltd reserves the right to reject or remove from the platform any campaign, offer or advert in its sole discretion at any time for any or no reason irrespective of any previous approval thereof by LeadsEngine Ltd. Any approval by LeadsEngine Ltd does not constitute an endorsement of the campaign, offer or advert and LeadsEngine Ltd is not liable for any such approval.

Except to the extent specified in any advertising service agreement, the distribution of the campaign, offer or advert within the Affiliate Network is in LeadsEngine Ltd’s sole discretion. The LeadsEngine Ltd does not guarantee that any campaigns, adverts or offers will generate any guaranteed level of enquiries, conversions, leads, customers or revenue/ income. 

If the Customers objects to the validity of any individual conversion or other event, it must notify LeadsEngine Ltd in Writing by no later than the 7th day of the month following the month in which the individual conversion was supplied by LeadsEngine Ltd and it's affiliates took place. The Customers must provide enough information in order to enable LeadsEngine Ltd to determine the precise conversion referred to, and such information should include, but not necessarily be limited to:

tracked ClickID or Customers trackID.

reason for the conversion being rejected.

suitable evidence of the invalid rejection.

recorded date and time of the conversion

If the Customers does not provide the Rejections by the 7th of the following calendar month, the advertiser irrevocably waives any objection to the validity of the individual conversion or Event. LeadsEngine Ltd’s decision will be final. For the avoidance of doubt, an invalid individual conversion or other payable action will not lead to the waiving of all fees relating to that Affiliate or any group of Leads / Events. Each Lead and / or Event will be considered on an individual basis. Any Fees referred to in this agreement are net of VAT which will be payable in addition where legally due.

The Customers exclusively retains all rights, title and interest (including, without limitation, copyrights, trade secrets, trademark, patent rights, and any and all other proprietary rights) in and to any and all elements of its offer (including all promotions).

The Customers agrees and confirms that it will not use the platform in a manner which generates a irregular or large load on our LeadsEngine Ltd’s systems or which constitutes spamming, phishing or improper, malicious or fraudulent activity or which is liable to damage the reputation of LeadsEngine Ltd, all as determined by LeadsEngine Ltd in its sole discretion.

The Customers acknowledges that LeadsEngine Ltd’s records, reports and statistics will be final and decisive as to any payment or conversion reporting issue relating to this agreement. The Customers will pay the applicable fees in the currency required by LeadsEngine Ltd and without any withholding, deduction, counterclaim or offset.

The Customers will be responsible for the payment of all applicable fees for a conversion, which has been delivered to the Customers campaign, advert or offer, unless of following has occurred:

the Customers’s website is unavailable for any reason.

the Customers removes the LeadsEngine Ltd tracking code on its website or server.

any action is taken without prior notice which would otherwise prevent creation or reporting of conversions .

Applicable fees are payable in advance unless otherwise agreed in writing. It is the responsibility of the Customers to top up the account so that there is sufficient credit to pay billable fees. The Customers reserves the right to suspend the advertiser campaigns if it considers that there are insufficient funds to pay any billable fees.

LeadsEngine Ltd shall not be responsible for payment to the Customers for any action, including but not limited to emails, impressions, clicks, acquisitions and/or purchases that is reasonably determined to be the result of consumer fraud or manipulation.

The Customers and LeadsEngine Ltd will be mutually indemnified, should any action arising out of or relating to any actual or alleged breach of these Terms or the advertising agreement.

All Intellectual Property Rights and all other rights in the offers shall be owned by the Customers. The Customers hereby licenses all such rights to LeadsEngine Ltd free of charge and on a non-exclusive, worldwide basis to such extent as is necessary to enable LeadsEngine Ltd to make reasonable use of the offers and deliver the Services.

LeadsEngine Ltd provide all Customerss support through different recorded channels:

Recorded Live Chat
Recorded Support Tickets

Customerss will have access to an account manager during office hours Monday to Thursday 10am - 6pm and Fridays 10am-5pm GMT (London). Customerss are required to utilize support tickets within the platform on all topics relating to account and/or campaigns. 

3) FURTHER LEGAL INFORMATION

If any part of the advertising agreement is held to be unenforceable, the unenforceable part shall be given effect to the greatest extent possible and the remainder will remain in full force and effect.

LEADSENGINE LTD MAKES NO WARRANTY REGARDING ANY THIRD PARTY GOODS OR SERVICES PURCHASED OR OBTAINED THROUGH THE PLATFORM OR ANY TRANSACTIONS ENTERED INTO THROUGH THE PLATFORM.

SUBJECT TO THE TERMS THEREOF, THE ADVERTISER EXPRESSLY AGREES THAT USE OF THE SERVICE IS AT ITS SOLE RISK. THE SERVICE IS PROVIDED ON AN “AS IS” BASIS. TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW, LEADSENGINE LTD EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED BY LAW, CUSTOM OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE.

LeadsEngine Ltd shall under no circumstances whatever be liable to the Customers, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, loss of goodwill, loss of business opportunity, loss, corruption or unauthorised use of data, information or software, or any indirect or consequential loss arising under or in connection with the advertising agreement. LeadsEngine Ltd’s total liability to the Customers in respect of all other losses arising under or in connection with the advertising agreement, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the amount the Customers paid for the Services. Except as set out in these Terms, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the advertising agreement. This clause shall survive termination of the advertising agreement.

Without limiting its other rights or remedies, each party may terminate the advertising agreement with immediate effect by giving written notice to the other party if:

Any of the parties commits a breach of the advertising agreement and if such a breach is remediable fails to remedy that breach within 7 days of that party being notified in writing of the breach.

If a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party.

If any of the parties suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply.

If any of the parties commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than (where a company) for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party.

If any of the parties (being an individual) is the subject of a bankruptcy petition or order.

If a creditor of the other parties attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days.

A floating charge holder over the assets of that other party (being a company) has become entitled to appoint or has appointed an administrative receiver.

An application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the other party (being a company)

A person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party.

Any event occurs or proceeding is taken with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned above.

The other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business; or the other party (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his own affairs or becomes a patient under any mental health legislation.

Without limiting its other rights or remedies, LeadsEngine Ltd may terminate the advertising agreement with immediate effect by giving written notice to the Customers if the Customers fails to pay any amount due under this advertising agreement on the Due Date.

Without limiting its other rights or remedies, each party shall have the right to terminate the advertising agreement by giving the other party 7 business days’ advance written notice.

On termination of the advertising agreement for any reason the Customers shall immediately pay to LeadsEngine Ltd all of LeadsEngine Ltd’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, LeadsEngine Ltd shall submit an invoice, which shall be payable by the Customers within the agreed payment terms.

LeadsEngine Ltd shall repay to the Customers such balance as stands to the credit of the Customers’s account (if any), save that LeadsEngine Ltd reserves the right to apply any such amounts standing to the credit of the Customers’s account (if any) to pay for any outstanding invoices in respect of advertising services that were supplied to the advertiser.

The accrued rights, remedies, obligations and liabilities of the parties as at expiry or termination shall not be affected, including the right to claim damages in respect of any breach of the advertising agreement which existed at or before the date of termination or expiry; and clauses which expressly or by implication have effect after termination shall continue in full force and effect.

This advertising agreement is to be construed in accordance with and governed by the internal laws of England and Wales and the Customers agrees to comply with the laws of England and Wales that apply to the use of this advertising service.Except for obligations to make payment hereunder, neither party shall be responsible for any failure to perform its obligations under this advertising agreement if such failure is caused by events or conditions beyond that party’s reasonable control and the party gives the other prompt notice and makes reasonable efforts to perform.

A party whose performance is affected by a force majeure condition shall be excused from such performance to the extent required by such force majeure condition so long as such party uses commercially reasonable efforts to avoid or remove such causes of non-performance and such force majeure event does not extend beyond one (1) month.

Customers recognises that LeadsEngine Ltd has proprietary relationships with the affiliates and or publishers  registered on the LeadsEngine Ltd platform. Customers agrees not to circumvent LeadsEngine Ltd’s and attempt to deal directly with such Publishers, or to otherwise solicit, purchase, contract for or obtain services similar to the platform services offered and performed by LeadsEngine Ltd hereunder from any affiliate or publisher that is known, or should reasonably be known, by the advertiser to have such a relationship with LeadsEngine Ltd, during the term of the Agreement and for six (6) months following termination or expiration of the Agreement. Notwithstanding the foregoing, to the extent that advertiser can show that any such affiliates or publishers already provided such services to Customers prior to the date of the first agreed signing of this agreement executed by the parties, then Customers shall not be prohibited from continuing a direct relationship with the affiliate or publosher

The advertiser agrees that anymonetary damages for a breach, or threatened breach, of this Section will not be adequate by themselves and that LeadsEngine Ltd shall be entitled to liquidate damages from Customers in the amount equal to one hundred percent (100%) of the fees paid by Customers to the subject Media Partner, as applicable, for the prior twelve (12) month period. If the respective period is shorter than 12 months, the amount due will be calculated based on the true duration of the partnership to an equivalent of 12 months. Customers has the right to prove that no or only substantial lower damages occurred and LeadsEngine Ltd has the right to prove that higher damages occurred.

LeadsEngine Ltd or the Customers are not permitted at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights under the advertising agreement and may not subcontract or delegate in any manner any or all of its obligations under the advertising agreement to any third party or agent.

The Customers shall not, without the prior written consent of LeadsEngine Ltd, assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the advertising agreement.

Any notice or other communication required to be given to a party under or in connection with this advertising agreement shall be in writing and shall be delivered to the other party personally or sent by post, recorded delivery or by courier, at its registered office (if a company) or (in any other case) its principal place of business, or sent by e-mail to the other party’s main e-mail address.

Any notice or other communication shall be deemed to have been duly received if delivered personally, when left at the address referred to above or, if sent by recorded next day delivery. This clause shall not apply to the service of any proceedings or other documents in any legal action. For the purposes of this clause, “writing” shall not include e-mails.

The advertising agreement constitutes the entire understanding and agreement between the parties with respect to the subject matter of the advertising agreement, and supersedes all prior and contemporaneous understandings and agreements, whether written or oral, with respect to such subject matter. Any changes, supplements or waivers to the advertising agreement must be in writing and signed by authorized representatives of both the parties.

This advertising agreement may be executed in counterparts, each of which shall be deemed an original, but both of which together shall constitute one and the same instrument. Transmission of the executed signature page of a counterpart of this advertising agreement by e-mail shall take effect as delivery of an executed counterpart of this advertising agreement.

Nothing in the advertising agreement is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way. A person who is not a party to the advertising agreement shall not have any rights under or in connection with it.

A waiver of any right under the advertising agreement is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy under the advertising agreement or by law shall constitute a waiver of that or any other right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy. Unless specifically provided otherwise, any rights arising under the advertising agreement are cumulative and do not exclude rights provided by law.

If any court or any other competent legal authority finds that any provision of the advertising agreement (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed deleted, and the validity and enforceability of the other provisions of the advertising agreement shall not be affected.

If any invalid, unenforceable or illegal provision of the advertising agreement would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.

LeadsEngine Ltd is entitled, without notice and without liability, to suspend the advertising service for repair, maintenance, improvement or other necessary reason.

LeadsEngine Ltd does not guarantee that the advertising service or platform will be error-free or uninterrupted. 
LeadsEngine Ltd is not liable for such interruptions or errors provided that they are not deliberate acts of LeadsEngine Ltd and provided that LeadsEngine Ltd uses reasonable endeavours to implement that any errors or interruptions of which it becomes aware are corrected as soon as reasonably possible.

 

GDPR ADDENDUM

This General Data Protection Regulation Addendum (" GDPR Addendum") is incorporated by reference into the Terms of Use Agreement. This GDPR Addendum is entered into by and between the Customer (“Data Controller”) and LeadsEngine Ltd (“ Data Processor”).

2. This GDPR Addendum is supplemental to this Terms Of Use Agreement and sets out the terms that apply when Personal Data (as defined below) is processed by Data Processor under the Terms Of Use Agreement. The purpose of the GDPR Addendum is to ensure such processing is conducted in accordance with applicable laws, including the Data Protection Law (defined below), and with due respect for the rights and freedoms of individuals whose personal data are processed.

3. The Data Processor provides the  Services (as defined in the above Terms Of Use Agreement) and the Data Controller uses the LeadsEngine Ltd Services for the purposes specified in the Terms Of Use Agreement. With respect to the Terms Of Use Agreement the Data Processor processes Personal Data on behalf of, and as instructed by, the Data Controller.

4. This GDPR Addendum details the Parties' rights and obligations related to the scope of the processing of Personal Data. This GDPR Addendum shall apply to all activity within the scope of and related to the Terms Of Use Agreement, and in whose context the Data Processor’s employees or subcontractors may come into contact with Data Controller’s Personal Data.

Section 1

Definitions:
Data Protection Law : means (i) unless and until the GDPR is no longer directly applicable in the UK, the General Data Protection Regulation ((EU) 2016/679) and any national implementing laws, regulations and secondary legislation, as amended or updated from time to time, in the UK and then (ii) any successor legislation to the GDPR or the Data Protection Act 1998.


Section 2

Subject of addendum (Data Processing)

1. The scope, extent, duration and nature of the collection, processing and use of Personal Data as well as the types of Personal Data (as defined in the Data Protection Law “Personal Data”) and categories of data subjects are set out in Schedule 1 attached hereto and both the Data Controller and Data Processor shall comply with all applicable requirements of the Data Protection Law.

2. The Data Controller selected the Data Processor as a service provider by exercising its duties of diligence under the Data Protection Law. It is the intent of the Parties that the Terms Of Use Agreement includes a written mandate within the meaning of the Data Protection Law and govern the Parties’ rights and obligations in the context of data processing.

3. To the extent this addendum employs the term “(data) process(ing) (of data),” it refers, in a general way, to the collection, processing and use of Personal Data, including but not limited to obtaining, storing, altering, transmitting, blocking, deleting, using, anonymising, pseudonymising, encrypting or otherwise using data within the meaning of the Data Protection Law.

4. Direction means the written instruction issued by the Data Controller to the Data Processor, and directing the latter to perform a specific action with regard to Personal Data (e.g. processing, anonymisation, blocking, deletion, disclosure).

Section 3 

Data Controller’s Rights and Obligations

1. The Data Controller is responsible (within the meaning of the Data Protection Law) for the Data Processor’s processing of data. Other than where Data Processor is the only party with a direct relationship with the individuals whose Personal Data is being processed hereunder (“ Data Subjects”), Data Controller shall ensure it has all necessary appropriate consents and notices in place to enable lawful transfer of Personal Data to the Data Processor for the duration and purposes of the Terms Of Use Agreement.

2. The Data Controller is entitled to issue supplementary directions at any time regarding the purpose, manner and extent of the processing

3. The Data Controller shall ensure that Data Subjects’ rights are observed and should third parties take legal action against the Data Processor on the grounds of data processing, the Data Controller will indemnify the Data Processor in respect of any such claim.

4. Prior to the commencement of data processing and in regular intervals thereafter, the Data Controller shall assure itself that the Data Processor has implemented technical and organisational measures to protect the Personal Data.

5. The Data Controller will promptly notify the Data Processor if and when it detects errors or irregularities in connection with the Data Processor’s processing of Personal Data.

Section 4 

Data Processor’s Rights and Obligations

1. Without prejudice to the generality of Section 1(1), the Data Processor shall, in relation to any Personal Data processed in connection with the performance by the Data Processor of its obligations under the Terms Of Use Agreement:

a. process that Personal Data only on the written instructions of the Data Controller unless the Data Processor is required by the laws of any member of the European Union or by the laws of the European Union applicable to the Data Processor to process Personal Data ( Applicable Laws). Where the Data Processor is relying on laws of a member of the European Union or European Union law as the basis for processing Personal Data, the Data Processor shall promptly notify the Data Controller of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit the Data Processor from so notifying the Data Controller;

b. ensure that it has in place the appropriate technical and organisational measures which have been reviewed and approved by the Data Controller, to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);

c. ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential; and

d. not transfer any Personal Data outside of the European Economic Area unless the prior written consent of the Data Controller has been obtained and the following conditions are fulfilled:

(i) the Data Controller or the Data Processor has provided appropriate safeguards in relation to the transfer;

(ii) the Data Subject has enforceable rights and effective legal remedies;

(iii) the Data Processor complies with its obligations under the Data Protection Law by providing an adequate level of protection to any Personal Data that is transferred; and

(iv) the Data Processor complies with reasonable instructions notified to it in advance by the Data Controller with respect to the processing of the Personal Data.

e. at the Data Controller’s cost, assist the Data Controller: (i) in responding to any request from a Data Subject; (ii) in responding to requests, investigations or audits by a Data Protection Law supervisory authority or regulator (a “DPA”); and (iii) in complying with any request by Data Controller with respect to ensuring compliance with Data Controller’s obligations under the Data Protection Law with respect to security, breach notifications, impact assessments and consultations with DPAs, provided that Data Processor shall notify Data Controller without undue delay should it receive any such request or query from a Data Subject or DPA;

f. notify the Data Controller without undue delay on becoming aware of a Personal Data breach;

g. at the written direction of the Data Controller, delete or return Personal Data and copies thereof to the Data Controller on termination of the Terms Of Use Agreement unless required by Data Protection Law to store the Personal Data; and

h. maintain complete and accurate records and information to demonstrate its compliance with this Section 4, and allow for audits by the Data Controller or the Data Controller’s designated auditor.

Section 5

Subcontractors:

The Data Controller consents to the Data Processor appointing those parties listed in Schedule 2 as third-party processors of Personal Data under this addendum. The Data Processor confirms that it has entered or (as the case may be) will enter with the third-party processors into a written agreement incorporating terms which are substantially similar to those set out in this clause addendum. As between the Data Controller and the Data Processor, the Data Processor shall remain fully liable for all acts or omissions of any third-party processor appointed by it pursuant to this Section 5. The Data Processor will notify the Data Controller in writing, via an appropriate medium, where any new third party sub-processors are used and will give the Data Controller the opportunity to object to the engagement of the new third party sub-processors within 30 days after being notified. The objection must be based on reasonable grounds (e.g. if the Data Controller proves that significant risks for the protection of its Personal Data exist at the third party sub-processor). If the Data Processor and Data Controller are unable to resolve such objection, either party may terminate the Terms Of Use Agreement by providing written notice to the other party

Section 6

Audit Rights:

1. The Data Processor is obliged to assure compliance with the technical and organisational measures and will allow Data Controller or an independent auditor appointed by Data Controller to conduct audits (including inspections) to verify Data Processor’s compliance with the respective technical and organisational measures.

2. The Data Processor may refuse, at its own discretion and taking into account the Data Controller's statutory duties, to disclose certain information that is sensitive with respect to the Data Processor's business or if the Data Processor violated statutory or contractual obligations by disclosing the information. In particular, the Data Controller is not granted access to information on the Data Processor's other business partners, on costs, on quality audit and contract management reports, as well as on any and all other non-public information of the Data Processor not directly necessary in view of statutory audit rights.

Section 7

Term of Addendum:

Except where this addendum expressly stipulates any surviving obligation, the term of this addendum shall follow the term of the Terms Of Use Agreement.

Section 8 

Miscellaneous:

1. This addendum shall constitute a binding part of the Terms Of Use Agreement. Unless the foregoing has not been regulated otherwise, the terms of the Terms Of Use Agreement shall apply to this addendum accordingly.

2. Ancillary agreements must be made in writing. The foregoing shall also apply to the waiver of this mandatory written form.

In the event that individual provisions of this addendum are ineffective, the remaining provisions of the addendum and the Terms Of Use Agreement hereof continue in full force and effect.

SCHEDULE 1

DATA PROCESSING ACTIVITIES

Subject Matter: Any data supplied to the system by the owner or contractors
Processing Duration: As long as the instance requires
Nature and Purpose of Processing: Cleaning, deduplication, validation, enhancing, forwarding, storing
Categories of Data: Any data supplied to the system such as names, emails, phone numbers, etc
Data Subjects: Leads supplied in to the system

 

SCHEDULE 2

OVH.co.uk - Server & Data Hosting
Amazon S3 - Data Storage
Amazon Cloudfront - Content Delivery Network
Amazon SES - Transactional Email Services
SendGrid.net - Marketing Email Services
LetsEncrypt - SSL Services

 

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