The definitions in this clause apply in the Agreement.
- Agreement: the terms and conditions set out in this document.
- Authorised Users your employees, agents, independent contractors, customers and any other third parties who are authorised by you to use the Services and the Documentation.
- Business Day: a day other than a Saturday, Sunday or 24,25,26,31 December or 1,2 January.
- Confidential Information: information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 12.5.
- Data Protection Legislation means all applicable laws, regulations, directives and codes of practice relating to the processing of personal data and privacy including, but not limited to the General Data Protection Regulation (EU/2016/679) (“GDPR”), the Data Protection Act 2018, the Privacy and Electronic Communications (EC Directive) Regulations 2003 (SI 2426/2003) and the Electronic Communications Data Protection Directive (2002/58/EC) including any relevant primary, subordinate or implementing laws, regulations, directives, or codes of practice and any replacement/subsequent European and/or UK legislation, as amended from time to time.
- Documentation: the document made available to you online via the Website or such other web address notified to you from time to time which sets out a description of the Services and the user instructions for the Services.
- Down Time if the Service is unavailable to, or inoperable by other than by reason of: (a) your temporary disablement of the Service; (b) outages or interruption to any public Internet backbones, networks or services; (c) any failure of your equipment, systems or local access services; (d) an event of force majeure; (e) any suspension of your access to the Service pursuant to this Agreement.
- Effective Date the date of the Agreement.
- Fees: the subscription fees payable by you to Administrate for the User Subscriptions as set out in Schedule 1.
- Initial Subscription Term: one year from Effective Date.
- Normal Business Hours: 7.00 am to 7.00 pm local UK time, each Business Day.
- Renewal Period: the period described in clause 15.1.
- Services: the subscription services provided by Administrate to you via the Website or any other website notified to you from time to time, as more particularly described in the Documentation.
- Software: the online software applications provided by Administrate as part of the Services.
- Support Services Policy: Administrate’s policy for providing support in relation to the Services as made available at www.getadministrate.com/trust/ or such other website address as may be notified to you from time to time.
- Term: has the meaning given in clause 15.1.
- Terms: the terms and conditions set out in this document.
- User Subscriptions: the user subscriptions purchased by you which entitle Authorised Users to access and use the Services and the Documentation in accordance with the Agreement.
- Virus: any thing or device (including any software, code, file or programme) which may prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
- Website: www.getadministrate.com
- Your Data: the data inputted by you, Authorised Users, Authorised third-party integrated systems or Administrate on your behalf for the purpose of using the Services or facilitating your use of the Services.
2. USER SUBSCRIPTIONS
- 2.1 Schedule 1 describes how many User Subscriptions you purchase. Once you purchase User Subscriptions Administrate grants to you a non-exclusive, non-transferable right to permit the Authorised Users to use the Services and the Documentation during the Term solely for your internal business operations.
- 2.2 You undertake that you will not allow any User Subscription to be used by more than one individual Authorised User unless it has been reassigned to another individual Authorised User, in which case the prior Authorised User shall no longer have any right to access or use the Services and/or Documentation.
- 2.3 You will not knowingly access, store, distribute or transmit any Viruses (having taken all reasonable endeavours not to do so), or any material while using the Services that:
(a) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing, or racially or ethnically offensive; (b) fdepicts sexually explicit images; (c) is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or(d) is or facilitates otherwise illegal activity and/or causes harm to any person or property; and Administrate has the right, without affecting Administrate’s other rights, to disable your access to any material that breaches the above.
- 2.4 You will not:(a) except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties: (i) and except if permitted under the Agreement, attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software and/or Documentation (as applicable) in any form or media or by any means; or (ii) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or (b) access all or any part of the Services and Documentation in order to build a product or service which competes with the Services and/or the Documentation; or(c) use the Services and/or Documentation to provide services to third parties; or (d) subject to clause 18.8, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services and/or Documentation available to any third party other than in accordance with this Agreement.(e) attempt to obtain, or assist third parties in obtaining, access to the Services and/or Documentation, other than as provided under the Agreement.
- 2.5 You shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and/or the Documentation and, in the event of any such unauthorised access or use, notify Administrate immediately.
- 2.6 Although this Agreement is with you, rights under this Agreement can be granted by you to your subsidiaries or holding companies in the event that you (on their behalf) or they purchase additional User Subscriptions in accordance with clause 3 and the additional Fees in Schedule 1. For the avoidance of doubt, you and the relevant subsidiary/subsidiaries and/or holding company will be jointly and severally liable to pay for all such additional User Subscriptions.
3. ADDITIONAL USER SUBSCRIPTIONS
- 3.1 Subject to clause 3.2, you may, from time to time during the Term, purchase additional User Subscriptions by submitting a request in writing and Administrate shall grant access to the Services and the Documentation to such additional Authorised Users on the terms of Schedule 1.
- 3.2 Administrate will reasonably consider any request submitted by you but is not obliged to accept any request.
- 3.3 Where additional User Subscriptions are added, additional Fees shall be payable on a pro rata basis as per Schedule 1 in respect of that year and throughout the Term unless otherwise agreed in writing between you and Administrate.
4. SUPPLY OF THE SERVICES
- 4.1 Administrate will, during the Term, provide the Services and make available the Documentation to you in accordance with the terms of the Agreement and Administrate’s standard service level agreement at Schedule 2 of this Agreement and which can be found at www.getadministrate.com/trust
- 4.2 Subject to clause 4.4, Administrate will use commercially reasonable endeavours to make the Services available 24 hours a day, seven days a week, except for:
(a) planned maintenance which will be carried out outside of Normal Business Hours at a reasonable time to be notified to you on at least 5 Business Days’ notice in advance; and
(b) unscheduled emergency maintenance performed outside Normal Business Hours, provided that Administrate has used reasonable endeavours to give you at least 6 Normal Business Hours’ notice in advance.
- 4.3 Administrate will provide you with its standard customer support services during Normal Business Hours in accordance with Administrate’s Support Services Policy in effect at the time that the Services are provided. Administrate may amend the Support Services Policy in its discretion from time to time. You may purchase enhanced support services separately at Administrate’s then current rates by separate agreement with Administrate.
- 4.4 Administrate shall provide the Service with a Downtime of no more than 0.1% per calendar month (the “Downtime Limit”). Should the Downtime Limit be exceeded, then Administrate will refund you in accordance with Schedule 3 of this Agreement. This clause 4.4 and Schedule 3 constitute your sole remedy for Administrate exceeding the Downtime Limit.
5. YOUR DATA
- 5.1 You own all rights in Your Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of Your Data.
- 5.2 Administrate will follow its archiving procedures in respect of Your Data as set out in Administrate’s Back-Up Policy available on the Website, as such document may be amended by Administrate in its sole discretion from time to time. Administrate shall not be responsible for any loss, destruction, alteration or disclosure of Your Data caused by any third party (except those third parties sub-contracted by Administrate to perform services related to Your Data).
- 5.4 If Administrate processes any “personal data” on your behalf, in performing its obligations under the Agreement you agree that you shall be the “data controller” and Administrate shall be a “data processor” (as such terms are defined in the Data Protection Legislation).
- 5.5 Administrate shall process Your Data in accordance with the Data Processing Addendum in the form set out at Schedule 4 of this Agreement.
6. THIRD PARTY PROVIDERS
You understand that the Services may enable or assist you to access the website content of, correspond with, and purchase products and services from, third parties via third-party websites and that you do so solely at your own risk. Administrate shall have no liability in relation to the content or use of, or correspondence with, any such third-party website, or any transactions completed, and any contract entered into by you, with any such third party.
7. ADMINISTRATE’S RESPONSIBILITIES
- 7.1 The Services will be performed substantially in accordance with the Documentation and with reasonable skill and care.
- 7.2 Clause 7.1 will not apply to the extent of any non-conformance which is caused by your use of the Services contrary to Administrate’s instructions, or modification or alteration of the Services by any party other than Administrate or its duly authorised contractors or agents. If the Services do not conform with clause 7.1, Administrate will, at its own expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide you with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes your sole and exclusive remedy for any breach of clause 7.1. However, Administrate: (a) does not warrant that your use of the Services will be uninterrupted or error-free; or that the Services, Documentation and/or the information obtained by you through the Services will meet your requirements; and (b) is not responsible for any delays, delivery failures, hacking, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and you acknowledge that the Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
- 7.3 The Agreement shall not prevent Administrate from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under the Agreement.
8. YOUR RESPONSIBILITIES
8.1 The parties will:
(a) provide the other party with:
(i) all necessary co-operation in relation to the Agreement; and
(ii) all necessary access to such information as may be required by the other party;
in order for Administrate to provide the Services, including but not limited to Your Data and security access information;
(b) carry out all of their responsibilities set out in the Agreement in a timely and efficient manner; and
(c) obtain and shall maintain all necessary licences, consents, and permissions necessary for the parties and/or their contractors and agents to perform their obligations under the Agreement.
8.2 You will
(a) ensure that the Authorised Users use the Services and the Documentation in accordance with the Agreement and shall be responsible for any Authorised User’s breach of the Agreement; and
(b) ensure that your systems and network are adequate to receive the Services.
9. DEVELOPMENTS TO THE SOFTWARE
The parties will enter into a separate Professional Services Agreement in the event that Administrate agrees to make any bespoke changes to the Software and/or Documentation specifically for you. Administrate shall make the developments to the Software in accordance with the terms of the Professional Services Agreement.
10. FEES AND PAYMENT
- 10.1 Administrate will charge you and you agree to pay when due the Fees in accordance with this clause 10 and Schedule 1.
- 10.2 Administrate reserves the right to suspend all Services (including services provided pursuant to any unrelated agreement Administrate may have with you) if the Fees remain unpaid for a period of 15 days from the due date or if Administrate charges to your credit card are rejected for any reason.
- 10.3 Administrate may charge interest on a daily basis on any overdue amounts at an annual rate of up to 8% over the then current base lending rate of the Bank of Scotland from time to time, starting on the due date for payment and continuing until fully paid.
- 10.4 All Fees: (a) shall be payable the currency set out in Schedule 1; (b) are non-cancellable and non-refundable unless authorised by us; (c) are exclusive of VAT, which shall be added if applicable at the appropriate rate and paid at the same time as the Fees
- 10.5 If there is a dispute with respect to any of the Fees, you shall pay the undisputed portion of the Fees (and applicable taxes) promptly and provide written details specifying the basis of any dispute.
- 10.6 If your Service is suspended due to lack of payment for more than 2 months, we may choose to engage a Debt Collection Agency to recover all fees due, including any late payment fees.
- 10.7 1.1 Unless you have made other arrangements, we will charge your credit card either monthly or annually (as agreed by us), in advance of the Services being provided. We will provide you an invoice after successfully charging your credit card.
- 10.8 Unless otherwise negotiated, if your Order contains Services with a specified term of longer than one month, then we may increase your charges effective as of the first day of the renewal term following 30 days from our written notice of such fee increase.
11. ADMINISTRATE’S RIGHTS
You acknowledge and agree that Administrate (or its licensors) own all intellectual property rights in the Software, Services and the Documentation. Except as expressly stated within the Agreement, Administrate does not grant you any rights to, or in, patents, copyright, database right, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licenses in respect of the Services or the Documentation.
- 12.1 Each party may both be given access to Confidential Information belonging to the other. Confidential Information shall not be deemed to include information that:
- 12.1.1 is or becomes publicly known other than through any act or omission of the receiving party;
- 12.1.2 was in the receiving party’s lawful possession before the disclosure;
- 12.1.3 is lawfully disclosed to the receiving party by a third party without restriction on disclosure;
- 12.1.4 is independently developed by the receiving party, which independent development can be shown by written evidence; or
- 12.1.5 is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.
- 12.2 Each party will hold the other’s Confidential Information in confidence and, unless required by law, not make the other’s Confidential Information available to any third party, or use the other’s Confidential Information for any purpose other than the implementation of the Agreement.
- 12.3 Each party shall take all reasonable steps to ensure that the other’s Confidential Information is not disclosed or distributed by their respective officers, employees or agents in violation of the Agreement.
- 12.4 Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.
- 12.5 You acknowledge that details of the Services (such as information relating to the composition, format of and constituent parts of the Services and the Software), and the results of any performance tests of the Services (such as data gathered as a result of any tests relating to the performance of the Services), constitute Administrate’s Confidential Information.
- 12.6 Neither party shall issue a press release or advertisement or make any other public comment relating to your use of the Services without prior written consent (such consent not to be unreasonably withheld or delayed).
- 12.7 The above provisions of this clause 12 shall survive termination of this Agreement, however arising.
- You shall indemnify Administrate against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with your use of the Services and/or Documentation, provided that:
(a) you are given prompt notice of any such claim; (b) Administrate provides reasonable co-operation to you in the defence and settlement of such claim (at your expense); and (c) you are given sole authority to defend or settle the claim.
14. LIMITATION OF LIABILITY
- 14.1 This clause 14 sets out Administrate’s entire financial liability (including any liability for the acts or omissions of its officers, employees, agents and sub-contractors) to you:
(a) arising under or in connection with the Agreement; (b) in respect of any use made by you of the Services and Documentation or any part of them; and (c) in respect of any representation, statement or tortious act or omission (including negligence) arising under or in connection with the Agreement.
- 14.2 Except as expressly and specifically provided in the Agreement:
(a) you assume sole responsibility for results obtained from your use of the Services and the Documentation, and for conclusions drawn from such use. Administrate shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts which you provide to Administrate in connection with the Services, or any actions taken by Administrate at your direction;
(b) all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from the Agreement; and
(c) the Services and the Documentation are provided to you on an “as is” basis.
- 14.3 Nothing in the Agreement excludes Administrate’s liability for anything which cannot be excluded by law or liability arising out of gross negligence or willful default
- 14.4 Subject to clause clause 4.4, clause 14.2, clause 14.3 and2 14.5:
(a) Administrate shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under the Agreement;
(b) Administrate shall not be liable for problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to your network connections or caused by the internet.
(c) Subject to 14.5, Administrate’s default total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Agreement (“Aggregate Liability”) shall be limited to £10,000.
- 14.5 As at the Effective Date, you shall have the option to raise Administrate’s total aggregate liability, as set out at clause 14.4(b), by way of payment of an additional fee (“Liability Cap Fee”). In the event that you opt to exercise the provisions of this clause, you shall notify Administrate in writing of your intention to exercise this clause.
- 14.6 The level of Aggregate Liability set in return for the Liability Cap Fee and the Liability Cap Fee shall be as per Schedule 5.
- 14.7 In the event that you exercise the provisions of clause 14.5, you warrant that you are unaware of any existing or potential claim(s) against Administrate arising in connection with the performance or contemplated performance of the Agreement.
- 15.1 In accordance with clause 10.8 and Schedule 1, the Agreement shall come into force on the Effective Date and shall continue for the Initial Subscription Term and, thereafter, this agreement shall be automatically renewed for successive periods of 12 months (each a Renewal Period), unless:
(a) A new Agreement is signed between Administrate and the Customer prior to the Renewal date; or (b) either party notifies the other party of termination, in writing, at least 60 days before the end of the Initial Subscription Term or any Renewal Period, in which case this agreement shall terminate upon the expiry of the applicable Initial Subscription Term or Renewal Period; or (c) terminated in accordance with the provisions of clause 17.
- and the Initial Subscription Term together with any subsequent Renewal Periods shall constitute the Term.
16. SUSPENSION OF SERVICES
- 16.1 Administrate may suspend the Services without liability if:
(a) Administrate reasonably believes that the Services are being used (or have been or will be used) in breach of the Agreement; (b) Administrate discovers that you are knowingly aware of, or affiliated in any manner with, a person who has used similar services abusively in the past;
(c) Administrate reasonably believes that the Services have been accessed or manipulated by a third party without your consent; (d) Administrate reasonably believes that the suspension of the Services is necessary to protect Administrate’s network or customers; (e) a payment of the Fees (including any applicable tax element) due is overdue; or (f) Administrate is required by law or a regulatory or government body to suspend the Services.
- 16.2 Administrate will give you reasonable advance notice of a suspension and a chance to remedy the grounds on which the suspension is based, if Administrate deems it acceptable to do so.
- 16.3 If the suspension was based on your breach of the Agreement, then Administrate may continue to charge you the Fees for the Services during the suspension and may charge you a reasonable reinstatement fee (at Administrate’s discretion) upon reinstatement of the Services.
- 17.1 You may terminate the Agreement immediately for breach on written notice if:
(a) Administrate did not have the legal right or authority to enter into the Agreement; or (b) Administrate materially fails to provide the Services as agreed and do not remedy that failure within 30 days of your written notice describing the failure.
- 17.2 Administrate may terminate the Agreement immediately on written notice if:
(a) you did not have the legal right or authority to enter into the Agreement on behalf of the person represented to be the customer; (b) any Fees (including any applicable tax element) are overdue and you do not pay the overdue amount within 4 Business Days written notice; (c) you have made payment arrangements via credit card or other third party and the third party refuses to honour or reverses Administrate’s charges, or you initiate a charge-back; or (d) you fail to comply with any other obligation stated in the Agreement and do not remedy the failure within 30 days of written notice to you describing the failure.
- 17.3 Either party may terminate the Agreement in the event that it reasonably believes that the other (a) is unable to pay its debts (b) has entered into compulsory or voluntary liquidation (c) compounds with or contravenes a meeting of it creditors (d) has a receiver or manager or administrator appointed (or an application is made to the court for the same) or (e) ceases for any reason to carry on business or takes or suffers any similar action which means that it may be unable to pay it debts (each an “Insolvency Event”).
- 17.4 On termination of the Agreement for any reason: (a) all licences granted under the Agreement shall immediately terminate; (b) You shall return and make no further use of any equipment, property, Documentation and other items (and all copies of them) belonging to Administrate; (c) you shall immediately pay to Administrate all outstanding sums due to Administrate under this Agreement (and/or any other agreement between you and Administrate). (d) Administrate will destroy or otherwise dispose of any of Your Data in its possession according to Administrate’s data retention policy. Prior to termination Administrate can assist with exporting copies of any of Your Data through Administrate’s reporting system. You are responsible for retrieving any data you want to retain prior to the termination date. (e) all rights, remedies, obligations or liabilities that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination, shall not be affected or prejudiced.
18. General Provisions
- 18.1 Force majeure -Neither party shall have any liability if it is prevented from or delayed in performing its obligations under the Agreement by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving its workforce or the workforce of any third party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors, provided that the other party is notified of such an event and its expected duration.
- 18.2 Conflict – If there is an inconsistency between any of the provisions in this document and any other terms relating to the Services (excluding Schedule 1), the provisions in this document shall prevail.
- 18.3 Variation – Administrate may vary this document, at any time in Adminstrate’s sole discretion by giving you reasonable advance notice in writing.
- 18.4 Waiver – No failure or delay by either one of us to exercise any right or remedy provided under the Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
- 18.5 Rights and remedies – Except as expressly provided in the Agreement, the rights and remedies provided under the Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
- 18.6 Severance – (a) If any provision (or part of a provision) of the Agreement are found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force. (b) if any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
- 18.7 Entire agreement – (a) The Agreement, and any documents referred to in it, constitute the whole agreement between the parties and supersedes any previous arrangement, understanding or agreement between the parties relating to the subject matter they cover.
(b) ou acknowledge and agree that in accepting the terms of the Agreement you do not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person relating to the subject matter of the Agreement, other than as expressly set out in the Agreement.
- 18.8 Assignment – (a) You shall not without Administrate’s prior written consent, assign, transfer, charge, sub-contract or deal in any other manner with all or any of your rights or obligations under the Agreement. (b) Administrate may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of Administrate’s rights or obligations under the Agreement.
- 18.9 No partnership or agency – Nothing in the Agreement is intended to or shall operate to create a partnership between the parties, or authorise either one them to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
- 18.10 Third party rights – The Agreement does not confer any rights on any other person or party pursuant to the Contracts (Rights of Third Parties) Act 1999.
- 18.11 Notices – (a) Any notice given to a party under or in connection with this agreement shall be in writing and shall be sent by email to the address for each party specified below:
Administrate: [email protected]
You: [email address]
(b) Any notice shall be deemed to have been received at 9.00am on the next Business Day after transmission.
(c) This clause does not apply to the service of any proceedings or any documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
- 18.12 Governing law and jurisdiction – Governing law – The Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England.
As pricing agreed between Administrate and Customer.
STANDARD SERVICE LEVEL AGREEMENT
Standard SLA found at www.getadministrate.com/trust
EXCEEDING DOWNTIME LIMIT
|Time Exceeded Downtime Limit
|Each full 30 minutes per calendar month
||Refund equal to 5% of monthly Fees for calendar month Downtime Limit was exceeded
|More than 2 hours per month in any 2 consecutive months
||Right to terminate Agreement on 7 days’ prior written notice provided that termination occurs within 30 days of the end of the second month in which such Downtime Limit was exceeded
DATA PROCESSING ADDENDUM
1. Defined words and phrases
The definitions set out in the Main Agreement shall apply in this data processing addendum, unless otherwise specified. In addition, the following definitions shall apply:
- 1.1 Defined words and phrases means the national laws of the UK or of any member of the European Union or by the laws of the European Union applicable to processing of personal data.
- 1.2 Data Protection Legislation means all applicable laws, regulations, directives and codes of practice relating to the processing of personal data and privacy including, but not limited to the Data Protection Act 1998, General Data Protection Regulation (EU/2016/679) (“GDPR”), the Privacy and Electronic Communications (EC Directive) Regulations 2003 (SI 2426/2003) and the Electronic Communications Data Protection Directive (2002/58/EC) including any relevant primary, subordinate or implementing laws, regulations, directives, or codes of practice and any replacement/subsequent European and/or UK legislation, as amended from time to time.
- 1.3 Protected Data means personal data received from or on behalf of you, or otherwise obtained in connection with the performance of Administrate’s obligations under the Main Agreement;
- 1.4 The terms “data controller”, “data processor”, “data subject”, “personal data”, “sensitive personal data” and “special categories of personal data” shall have the meaning given in the Data Protection Legislation.
2. Compliance with the Data Protection Legislation
- 2.1 This clause is in addition to and does not relieve, remove or replace a party’s obligations under the Data Protection Legislation. Both parties shall comply with all applicable requirements of the Data Protection Legislation.
- 2.2 In case the Data Protection Legislation changes in a way that the Agreement is no longer adequate for the purpose of governing lawful data processing exercises, the parties will negotiate in good faith to amend this clause in light of such new legislation.
- 2.3 The parties acknowledge that for the purposes of the Data Protection Legislation, you are the data controller and Administrate is the data processor.
3.1 The purpose of the processing under this data processing addendum is the processing of Protected Data for the purpose of providing the Services (as defined in the Main Agreement).
4. Your Obligations
Without prejudice to the generality of clause 2.1, you shall:
- 4.1 ensure that you have lawful grounds for processing the Protected Data;
- 4.2 ensure that you have all necessary appropriate consents and you are entitled to transfer the Protected Data to Administrate so that Administrate may lawfully use, process and transfer the Protected Data in order to provide the Services for the duration and purpose of the Main Agreement;
- 4.3 be responsible for maintaining the accuracy of the Protected Data. Administrate shall promptly comply with any request from you requiring Administrate to amend or transfer the Protected Data;
- 4.4 ensure that you implement appropriate technical and organisational measures against unauthorised or unlawful processing of personal data or its accidental loss, destruction or damage; and
- 4.5ensure that you do not disclose any sensitive personal data or special categories of personal data to Administrate.
5. Administrate’s Obligations
Without prejudice to the generality of clause 2.1, Administrate shall:
- 5.1 maintain and make available to you all information necessary to demonstrate compliance with the obligations laid down in the Data Protection Legislation and this data processing addendum and allow for and contribute to audits, including inspections, conducted you or another auditor mandated by you;
- 5.2 process the Protected Data only in accordance with written instructions given you unless Administrate is required to process by Applicable Law. Where Administrate is relying on Applicable Law as the basis for processing the Protected Data, Administrate shall promptly notify you of the same before performing the processing required by Applicable Law unless such Applicable Law prohibits Administrate from notifying you;
- 5.3 promptly inform you in the event that Administrate reasonably believes that your instructions breach the Data Protection Legislation;
- 5.4 ensure that it has in place appropriate technical and organisational measures 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 such unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the personal data to be protected, having regard to the state of technological development and the cost of implementing any measures;
- 5.5 taking into account the nature of processing and the information available to Administrate, provide you with full co-operation and assistance in ensuring compliance with the obligations laid down in the Data Protection Legislation concerning security of processing breach notifications, impact assessments and consultations with supervisory authorities or regulators5
- 5.6ensure that all personnel who have access to and/or process the Protected Data are obliged to keep the personal data confidential;
- 5.7 promptly inform you of any complaints, requests or enquiries received from data subjects under the Data Protection Legislation, including but not limited to requests to access, correct, delete, block or restrict access to their personal data and co-operate with you to ensure that such requests are handled in accordance with the Data Protection Legislation;
- 5.8 notify you without undue delay upon becoming aware of a personal data breach (the accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, or any other unlawful form of processing) and co-operate fully with you to the extent required with regard to the notification of the data breach to the relevant supervisory authority and the communication of the data breach to the affected data subject(s);
- 5.9 at your written direction, delete or return all of the Protected Data and copies thereof to you on termination of the Main Agreement unless required by Applicable Law to store the personal data;
- 5.10 ensure that any Protected Data which may be transferred or stored outside of the EEA in order to carry out the Services and Administrate’s other obligations under the Agreement are carried out in compliance with the Data Protection Legislation; and
- 5.11 not engage a sub-processor (or any replacement) for carrying out any processing activities in respect of the Protected Data without complying with the following obligations:
- 5.11.1 Administrate will enter with the sub-processor into a written agreement incorporating terms which are substantially similar to those set out in this data processing addendum and which provide sufficient guarantees that the sub-processor will implement appropriate technical and organisational measures in such a manner that the processing will meet the requirements of the Data Protection Legislation. Administrate shall promptly upon request by you provide the relevant details of any such agreement to you.
- 5.11.2 As between you and Administrate, Administrate shall remain fully liable for all acts or omissions of any sub-processor appointed by it pursuant to this paragraph 5.11 as if they were the acts or omissions of Administrate.
- 6.1 You shall indemnify and keep indemnified Administrate and hold it harmless from any cost, charge, damages, expense or loss arising as a result of any failure of you to comply with their obligations under the Data Protection Legislation or this data processing addendum.
Administrate shall have the right to terminate the Main Agreement in the event that you:
- 7.1 are not, in Administrate’s opinion, processing the Protected Data in accordance with this data processing addendum;
- 7.2 breaches any other provision of this data processing addendum; or
- 7.3 are not fully in compliance with the Data Protection Legislation.