PLATFORM LICENCE AND MASTER SERVICES TERMS AND CONDITIONS OF DYNAMIX DIGITAL LIMITED TRADING AS BIONIC (Last Updated: 02 May 2018)These Terms apply whenever BIONIC agrees to supply any Services to a Client and the Term Sheet is subject to these Terms. The Client’s attention is particularly drawn to the provisions of clause 14.
1.1 In these Terms, the following definitions apply:
Acceptance: has the meaning given to it in clause 2.2.
Authorised Users: those employees, agents and independent contractors of the Client who use or access the Services on behalf of the Client.
Business Day: a day (other than a Saturday, Sunday or a public holiday) when banks in Dublin, Ireland are open for business.
Client: a person or firm who purchases the Services from BIONIC.
Client Content: has the meaning set out in clause 6.1.
Confidential Information: information that is proprietary or confidential including without limitation, personal information, computer programs, code, algorithms, know-how, methodology, trade secrets, formulas, processes, ideas, inventions (whether patentable or not), and other technical, business, pricing and fee schedules and, in the case of BIONIC includes the Platform’s operations, functionality, methodology, results and look and feel.
Contract: these Terms and any Term Sheet accepted by BIONIC under clause 2.
Effective Date: the date of Acceptance.
Fees: means the fees and charges for the Services to be paid by the Client to BIONIC as set out in the Term Sheet as may be amended by BIONIC from time to time on giving 10 Business Days’ written notice to the Client.
BIONIC: Dynamix Digital Limited, trading as BIONIC or Flashpoint, a company incorporated and registered in Ireland with company number 493419 and having its registered office at 70 Northumberland Road, Dublin 4, Ireland, save where the context or otherwise admits and requires.
Intellectual Property Rights: all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
Managed Services: the professional advertising campaign management services performed by BIONIC at the request of the Client, in accordance with the Managed Service Details.
Managed Services Details: the specific details of the Managed Services in respect of this Contract which are set out in the Term Sheet (as amended from time to time in accordance with clause 3.3)
Minimum Termination Notice Period: any minimum notice period to be provided by the Client to BIONIC to terminate the Contract as specified in the Term Sheet.
Platform: The advertising campaign management platform known as BIONIC.
Platform Licence: the licence to access and use the Platform as granted to the Client by BIONIC under clause 4.1.
Advertising Channel Provider: a third-party Social Media or other advertising service provider such as Facebook, or Twitter.
Advertising Account: an account that is held by the Client with an Advertising Channel Provider for the purpose of conducting advertising activity.
Services: the services as specified in the Term Sheet, as may be amended, supplemented or discontinued from time to time by BIONIC, including without limitation the Platform Licence and/or the Managed Services where so specified in the Term Sheet.
Term: the term of this Contract as set out in the Term Sheet.
Terms: these terms and conditions of service as amended from time to time in accordance with clause 17.4.
Term Sheet: the order for the Services which was signed by an authorised signatory of the Client.
1.2 In these Terms, the following rules apply:
(a) a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
(b) a reference to a party includes its personal representatives, successors or permitted assigns;
(c) a reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted;
(d) any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and
(e) unless the context otherwise requires, words in the singular shall include the plural and in the plural include the singular.
2. Basis of Contract
2.1 The Term Sheet constitutes the Client’s offer to purchase the Services in accordance with these Terms. Any quotation which BIONIC gave or gives the Client shall not constitute an offer.
2.2 The Term Sheet will only be deemed to be accepted when BIONIC issues written acceptance (which may be by email) of the Term Sheet (“Acceptance”) on which date the Contract shall come into existence (“Effective Date”).
2.3 The Contract shall consist of the Term Sheet and these Terms, which together form the contract between BIONIC and the Client for the supply of the Services. The Contract constitutes the entire agreement between the parties in respect of the Services. The Client acknowledges that it has not relied on any statement, promise or representation made or given by BIONIC or on its behalf which is not set out in the Contract.
2.4 Any samples, drawings, descriptive matter or advertising which BIONIC has issued and any descriptions of the Services or illustrations or descriptions of the Services which BIONIC has made in its catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Services described. They shall not form part of the Contract or have any contractual force.
2.5 These Terms apply to the Contract to the exclusion of any other terms that the Client may seek to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
3.1 BIONIC agrees to provide the Services to the Client in exchange for the Fees.
3.2 BIONIC shall use all reasonable endeavours to meet any performance dates for the Services specified in the Term Sheet, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.
3.3 Where selected in the Term Sheet, BIONIC shall provide the Managed Services in accordance with the Managed Service Details a set out in the Term Sheet. Client may amend the Managed Service Details from time to time by written notice to BIONIC, and such variation shall only be deemed to be effective when accepted by BIONIC in writing. Where such variation in the Managed Service Details would cause concern to BIONIC (acting reasonably), BIONIC shall not be required to accept such change.
3.4 The Parties may agree to one of the following operating modes (“Operating Mode”) in each Term Sheet:
(a) Self-Directed Mode
Client may operate in self-directed mode (“Self-Directed Mode”), where Client is granted a Platform Licence to facilitate Client’s management of Client’s advertising activity without Managed Services; or
(b) Managed Service Mode
Client may operate in managed services mode (“Managed Services Mode”), where Client engages BIONIC to provide Managed Services and is granted a Platform Licence to facilitate Client’s monitoring and reporting of the Managed Services in respect of the Client’s campaign management activity.Client may enter into separate agreements with BIONIC in respect of both Self-Directed Mode and Managed Services Mode. In the event that Client maintains concurrent Term Sheets with BIONIC, each Term Sheet shall operate as a separate Contract and, to facilitate Self-Directed and Managed Service modes of operation, Client must maintain separate Advertising Accounts for each mode of operation.
4. Platform Use and Licence
4.1 Subject to these Terms, BIONIC hereby grants to Client, on and after the Effective Date, a non-exclusive, non-transferable licence for the Term to use BIONIC’s Platform solely for the Client’s internal business purposes and in the manner set forth in this Contract and in the then-current user manual or instructions for the Platform provided by BIONIC to Client from time to time in connection with this Contract.
4.2 During the Term, the Client shall, and shall procure that Authorised Users shall, use the Platform only in in connection with the monitoring and management of Client’s advertising campaigns. No other use of the Platform is permitted without BIONIC’s prior written consent.
4.3 The Platform may be linked to one or more of the Client’s Advertising Accounts and may be used to manage advertising operations within any such accounts. For the avoidance of doubt, once a Client Advertising Account is linked to the Platform it is deemed to be managed, or manageable, through the Platform.
4.4 The Client shall be required to establish billing credentials with each relevant Advertising Channel Provider prior to the use of the Platform and shall be liable to such Providers for any advertising costs incurred in relation to Advertising Accounts held with those Providers.
4.5 The Client shall maintain its access to and use of the Platform in confidence and shall take reasonable steps to prevent its disclosure to or access by third parties. If BIONIC provides its written consent to disclosure, other than as provided herein, the Client shall procure that any such disclosure is governed by the same confidentiality requirements as contained herein.
4.6 The Client shall procure that all Authorised Users have unique user identifications and passwords and that such passwords are not shared between or disclosed to other Authorised Users or third parties.
4.7 BIONIC may, at its option, adopt rules for permitted and appropriate use of the Platform (“Rules”) and may update the Rules from time to time. The Client shall be bound by any such Rules and shall ensure that its Authorised Users comply with such Rules. Such Rules and any amendment shall come into effect immediately after posting to the BIONIC Website or on written notice (which may be by email) to Client.
5. BIONIC’s Obligations
5.1 BIONIC shall use reasonable endeavours to ensure that the Platform shall be available to the extent commercially reasonably possible. Access to and use of Platform may be temporarily deactivated due to maintenance, upgrades, equipment failure, power failure, and/or other scheduled or unscheduled downtime or interruptions and BIONIC shall not be liable to Client or any third party for any such circumstances. BIONIC shall use commercially reasonable efforts to schedule maintenance and downtime during non-peak hours.
5.2 BIONIC shall host the Platform and make the Platform available to the Client via the internet subject to these Terms. The Client shall be responsible for providing all hardware, software, connectivity and data storage necessary to access and use the Platform and BIONIC is not responsible for delays, delivery failures, or any other loss or damage resulting from the Client’s failure to provide or maintain such suitable hardware, software, connectivity and data storage.
5.3 During the term of this Contract, BIONIC shall use commercially reasonable efforts to update, correct and revise the Platform as necessary or deemed desirable by BIONIC (collectively the “Updates”) and will make such Updates, if any, available to Client.
5.4 BIONIC shall provide technical support in relation to the Platform where specifically set forth in the Term Sheet.
6. Client Content
6.1 Unless Client is using BIONIC’s Managed Services expressly for such purpose, Client shall prepare all advertising submissions, including, without limitation, all text, graphics, URLs, and sites to which URLs are linked (collectively, “Client Content”) to be used in connection with the Platform, in accordance with each relevant Advertising Channel Provider’s then existing advertising criteria and specifications (including content limitations, technical specifications, privacy policies, user experience policies, policies regarding consistency with each relevant Advertising Channel Provider’s public image, community standards regarding obscenity or indecency, other editorial or advertising policies).
6.2 The Client shall have exclusive control over the Client Content used with the Platform. Unless Client is using BIONIC’s Managed Services expressly for such purpose, BIONIC shall have no obligation to review such Client Content.
6.3 The Client represents and warrants to BIONIC that all Client Content supplied by Client to be used in connection with the Platform or supplied to BIONIC by Client or Client’s agents, including any revisions to such Client Content, complies with all applicable laws and regulations, and Client is fully authorised to publish, and authorises BIONIC and the Platform to publish on its behalf, the Client Content (including all revisions).
7. Processing of data
7.1 The Customer expressly acknowledges and agrees that it is Customer’s obligation to observe and to comply with any and all privacy and data protection laws (including but not limited to EU General Data Protection Regulation, GDPR), regulations and terms applicable to information that can be used on its own or with other information to identify, contact, or locate a single person, or to identify an individual in context (“Personal Data”) contained in the materials provided by the Customer for the purposes of the Service regardless of the country/state in which the Customer is based. The above mentioned includes, but is not limited to, complying with terms and restrictions related to Customer’s use of customer/contact databases and complying with any applicable privacy policies and cookie opt-in policies.
8.2 In the event that (i) Bionic in connection with the Service processes Personal Data as a processor on behalf of the Customer and (ii) the applicable legislation (such as the GDPR) requires Parties to put in place a data processing agreement (DPA) to govern such data processing, the DPA attached to these Terms of Service as Annex A shall apply. In such event, the DPA set forth in Annex A forms an integral part of the Agreement and shall be applied to the processing of Personal Data by Bionic as a processor.
8. Client Obligations
8.1 The Client shall:
(a) provide BIONIC with all necessary co-operation in relation to this Contract;
(b) comply with all applicable laws and regulations with respect to its activities under this Contract; and
(c) be solely responsible for (i) procuring and maintaining its network connections and telecommunications links from its systems to the Platform and (ii) all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Client’s network connections or telecommunications links or caused by the internet.
8.2 Except as expressly provided in this Contract, Client shall not, and shall procure that its Authorised Users shall not:
(a) attempt to de-compile, disassemble or reverse engineer the Platform;
(b) permit access to the Platform to any persons other than Authorised Users who have been issued an individual identification or password by BIONIC;
(c) copy, duplicate, frame, mirror, modify, publish, transmit, license, sublicense, transfer, sell, distribute, reproduce, create derivative or collective works from, or in any way otherwise exploit the Platform or make the Platform available, in whole or in part;
(d) access all or any part of the Platform or the Services in order to build a product or service which competes with the Service;
(e) use the Services to provide services to third parties;
(f) remove from the Platform any copyright notices, disclaimers or other indicia of ownership or restrictions on use; or
(g) remove, modify or edit the substance of any information within the Platform.
8.3 Client shall use all reasonable endeavours to prevent any unauthorised access to the Platform and shall maintain reasonable safeguards against use, copying, transfer or inspection by any third party. Client acknowledges and agrees that any violation of this clause would cause irreparable harm to BIONIC for which there is no adequate remedy at law, and that BIONIC will be entitled to seek immediate injunctive relief prohibiting such violation, in addition to any and all other rights and remedies available at law or equity.
9. Fees, Invoicing and Payment Terms
9.1 Client shall pay the Fees to BIONIC. All Fees are exclusive of VAT or any equivalent tax, and shall be added to BIONIC’s invoice(s) at the appropriate rate, as applicable.
9.2 As set out in the Term Sheet, the Fees may include a charge based upon an agreed percentage (“Platform Licence and Service Fee Rate”) of the Client’s advertising expenditure in each calendar month, subject to a minimum amount per calendar month, (“Minimum Monthly Platform Licence and Service Fee”) or for the term of the agreement, (“Minimum Platform Licence and Service Fee Commitment”). The monthly charge will apply to all of the Client Advertising Accounts that are managed, or manageable, through the Platform, whether in Self-Directed mode or Managed Service mode or otherwise. All such Fees will be calculated based upon available Advertising Channel Provider data at time of invoicing.
9.3 BIONIC will invoice Client on a calendar month basis. Payment will be expected within thirty (30) calendar days of invoicing (“Due Date”). Where any payment is not received by its Due Date, such payment will accrue interest at the lesser of 1.5% per month or the highest rate permitted by law and BIONIC may, without liability to the Client, suspend provision of the Services or terminate the Contract at its sole discretion.
9.4 All amounts of Fees stated in this Contract shall be payable in the currency in which they are billed or invoiced and are non-cancellable and non-refundable.
10. Intellectual Property and Blind Data Rights
10.1 The Client acknowledges and agrees that BIONIC and/or its licensors is the sole owner of and will retain ownership of all right, title and interest in and to the following:
(a) the Platform and all Intellectual Property Rights related thereto;
(b) BIONIC’s pre-existing Intellectual Property Rights and proprietary materials;
(c) any improvements, revisions and derivative works relating to the Platform or BIONIC’s pre-existing Intellectual Property Rights and proprietary materials, made in connection with any license to Client or BIONIC’s services to Client, regardless of who makes or contributes to the making of such improvement, revision or derivative works (provided such improvement, revision and derivative do not include any Confidential Information of the Client);
(d) BIONIC’s Confidential Information.
10.2 BIONIC acknowledges and agrees that the Client is the sole owner of and will retain ownership of all right, title and interest in and to all Client Content (unless such content is created by BIONIC on behalf of the Client) and the Confidential Information of the Client.
10.3 Notwithstanding any other term or provision of this Contract, BIONIC may extract from data gathered by the Platform or BIONIC during its services to Client any data or information that does not identify or permit the identification of Client or any affiliate or customer of Client (“Blind Data”) and such Blind Data may be used by BIONIC for any lawful business purpose, including without limitation to further improve the Platform, provided that the Blind Data is used without identifying in any manner the identities of the Client or the Client’s end users. All analyses or other uses of the Blind Data made by BIONIC shall be BIONIC’s intellectual property. For the avoidance of doubt, Blind Data shall not include personally identifiable information, such as names, email addresses, phone numbers, postal addresses as well other data (other than Advertising Channel Provider demographic data) that may reasonably be linked to a person, including IP address and device ID.
11.1 Each party to this Contract (each, a “Recipient”) shall protect and keep confidential all Confidential Information disclosed by the other party (each, a “Discloser”), whether or not it is marked or identified as “Confidential” by the Discloser, and shall not, except as contemplated in this Contract, use or disclose any such Confidential Information.
11.2 Each party shall protect the other party’s disclosed Confidential Information by using the same degree of care to prevent the unauthorised use, dissemination, or publication of the Confidential Information as it uses to protect its own Confidential Information of a similar nature, and in no event shall it use less than a reasonable standard of care in its treatment of the Confidential Information. Each party shall limit its disclosure of the other party’s Confidential Information to those employees and consultants who have a need to know such Confidential Information in connection with the use of the Platform or the Managed Services rendered under this Contract.
11.3 The obligations of confidentiality shall not apply to any information which:
(a) was previously known to Recipient;
(b) is or becomes publicly available, through no fault of Recipient;
(c) is disclosed to Recipient by a third party having no obligation of confidentiality to Discloser;
(d) is independently developed by Recipient; or
(e) is required to be disclosed as a matter of law.
11.4 The provisions of this clause 10 shall survive for a period of five years from termination of the Contract, provided however that the Recipient’s obligations under this clause will survive and continue in effect indefinitely with respect to any Confidential Information that was a trade secret under applicable law when disclosed.
12. Term and Termination
12.1 This Contract shall come into existence on the date of Acceptance and shall continue for the Term.
12.2 Client may terminate the Contract upon the greater of the Minimum Termination Notice Period specified in the Term Sheet or five (5) Business Days’ advance written notice to BIONIC.
12.3 Without limiting its other rights and remedies, BIONIC reserves the right to immediately terminate this Contract at its sole discretion and without notice to the Client.
12.4 Upon termination of this Contract for any reason:
(a) all fees due from Client under this Contract as of the date of termination will immediately be due and payable and paid in full within ten (10) days of the termination date. Such fees will include the balance, if any, of the Minimum Platform Licence and Service Fee Commitment, for any Fixed Term that had been agreed in any associated Term Sheet; and
(b) the licence granted under clause 4 shall terminate and Client and Authorised Users will no longer access, use or display the Platform in any manner and will certify in writing to BIONIC within twenty-four (24) hours of the termination that this action has been completed; and
(c) clauses which expressly or by implication have effect after termination shall continue in full force and effect including, but not limited to, clauses 10, 15 and 16.
13.1 Subject to clause 13.2 and 13.5, BIONIC shall defend the Client, its officers, directors and employees against any claim that the Managed Services or any content created by BIONIC (and not in any way supplied directly or indirectly by Client or its affiliates and agents) infringes any patent effective as of the Effective Date, copyright, trade mark, database right or right of confidentiality, and shall indemnify the Client for any amounts awarded against the Client in judgment or settlement of such claims, provided that:
(a) BIONIC is given prompt notice of any such claim;
(b) the Client provides reasonable co-operation to BIONIC in the defence and settlement of such claim, at BIONIC’s expense; and
(c) BIONIC is given sole authority to defend or settle the claim.
13.2 In the defence or settlement of any claim, BIONIC may procure the right for the Client to continue using the Services, replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available, terminate this Contract on 2 Business Days’ notice to the Client without any additional liability or obligation to pay liquidated damages or other additional costs to the Client.
13.3 In no event shall BIONIC, its employees, agents and sub-contractors be liable to the Client under this Contract to the extent that the alleged infringement is based on:
(a) a modification of the Services by anyone other than BIONIC; or
(b) the Client’s use of the Services in a manner contrary to the instructions given to the Client by BIONIC; or
(c) the Client’s use of the Services after notice of the alleged or actual infringement from BIONIC or any appropriate authority.
13.4 Client will indemnify BIONIC 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:
(a) any content supplied or created by Client or its affiliates or agents;
(b) the Client’s use of the Services;
(c) advertisements which improperly redirect end users or utilise pop-overs; or
(d) spyware, malware or similar misleading, deceptive, or malicious advertisements.
13.5 The foregoing states the Client’s sole and exclusive rights and remedies, and BIONIC’s (including its employees’, agents’ and sub-contractors’) entire obligations and liability, for infringement of any Intellectual Property Rights or right of confidentiality.
14. Warranties and Disclaimer
14.1 Each party represents and warrants that:
(a) it is duly organised, validly existing and in good standing under the laws of the jurisdiction of its organisation and has all the necessary power and authority to enter into and perform its obligations under this Contract;
(b) this Contract has been duly authorised, executed and delivered by it; and
(c) its execution and delivery of this Contract, and the performance of its obligations hereunder, will not conflict with or result in any violation, breach or default of any agreement to which it is a party or by which it is bound.
(a) No representation or warranty is provided concerning the success or response rate of any Client advertising campaign.
(b) BIONIC does not warrant that the Client’s use of the Services will be uninterrupted or error free.
(c) BIONIC may make automated recommendations through the Platform (“Recommendations”) to assist Client in the management of advertising campaigns. No representation or warranty is provided concerning such Recommendations. For the avoidance of doubt, Client shall remain solely responsible for all advertising activity that is conducted through Client’s use of the Platform, regardless of the use or otherwise of BIONIC Recommendations.
(d) In the performance of its role the Platform must access and manage Client advertising campaign data on Advertising Channel Providers’ systems through associated Application Programming Interfaces (“APIs”). From time to time Advertising Channel Providers may make changes to their systems, their APIs, or the data that is available through their APIs. No representation or warranty is provided concerning the availability of Advertising Channel Provider systems, their APIs, or the availability, accuracy or timeliness of data that is available through the APIs.
15. Limitation of Liability
15.1 This clause 15 sets out the entire financial liability of BIONIC (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Client in respect of:
(a) any breach of this Contract;
(b) any use made by the Client of the Services or any part of them; and
(c) any representation, statement or tortious act or omission (including negligence) arising under or in connection with this Contract.
15.2 Except as expressly set forth in this Contract:
(a) the Platform and any other products or services related to the Services are provided “AS IS” and as available;
(b) to the maximum extent permitted by applicable law, BIONIC and its licensors disclaim any and all warranties, written or oral, express or implied, including but not limited to the implied warranties of title, merchantability, and fitness for a particular purpose;
(c) the Client assumes sole responsibility for results obtained from the use of the Services by the Client, and for conclusions drawn from such use. BIONIC shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to BIONIC by the Client in connection with the Services, or any actions taken by BIONIC at the Client’s direction;
(d) Client assume all responsibility for improper use of the Platform by it or its and Authorised Users, and BIONIC assumes no responsibility for such improper use; and
(e) where certain advertising programs or portions of the Platform made available to the Client are in a development, testing or beta version the Client hereby acknowledges and agrees that the Client’s use of those portions of the Platform or advertising programs that are in development, testing or beta version are entirely at its own risk.
15.3 No employee, agent, representative or affiliate of BIONIC has authority to bind BIONIC to any oral representations or warranty concerning the Platform or Managed Services. Any written representation or warranty not expressly contained in this Contract is not authorised and is unenforceable.
15.4 To the maximum extent permitted by applicable law, BIONIC shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise to the Client 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 indirect, incidental, consequential, special, punitive or exemplary damages arising out of or related to this Contract, however caused and on any theory of liability, and even if BIONIC has been advised of the possibility of such damages.
15.5 Except for BIONIC’s obligation under clause 10 (confidentiality) and clause 12.1 (intellectual property indemnification), BIONIC’s liability under this Contract for all claims arising out of or related to a campaign will not exceed the Fees paid to BIONIC pursuant to the Term Sheet in the 12 month period immediately preceding the date the act or omission giving rise to such claim arose.
16. BIONIC Marketing
16.1 Client grants to BIONIC a non-exclusive, irrevocable, non-transferrable, royalty-free worldwide licence to use its name and logo for the sole purposes of advertising, marketing and promoting BIONIC’s services.
17.1 For the term of this Contract and for one (1) year subsequent to its termination, neither party nor its affiliates shall, without the written consent of the other, directly or indirectly for its own benefit or that of a third party, hire, solicit for hire or induce to leave the employment (or attempt to hire, solicit for hire or induce to leave the employment) any employee, worker or independent contractor of the other party engaged by such other party in the provision of the Services or (in the case of Client) in the receipt of the Services (“Key Worker”).
17.2 If either party commits any breach of clause 17.1, the breaching party shall, on demand, pay to the claiming party a sum equal to one year’s basic salary or the annual fee that was payable by the claiming party to the relevant Key Worker plus the recruitment costs incurred by the claiming party in replacing such person.
17.3 Nothing herein shall preclude generalised searches by either party for employees through the use of advertisement in the media (including on job or message boards) that are not specifically directed at the employees of the other or the hiring of any such persons as a result of any such advertisement.
18.1 Conflict. In the case of a conflict between a Term Sheet and these Terms, except as expressly provided in such Term Sheet, these Terms shall apply.
18.2 Relationship of the Parties. BIONIC and Client are and will remain independent contractors. The Contract does not constitute a partnership or joint venture relationship. Neither party is a franchisee, agent or legal representative of the other for any purpose, and neither party has the authority to act for, bind or make commitments on behalf of the other.
18.3 Assignment and Subcontracting. Unless otherwise agreed to in writing by the Parties, neither party will assign, sublicense or otherwise transfer any of its rights, or delegate any of its duties, hereunder, in whole or in part, except to a person or entity which has acquired or succeeded to more than 50% of its business and which undertakes in writing to fully perform and discharge the assigning party’s obligations and liabilities hereunder.
18.4 Variation. Except as set out in these Terms, no amendment of any provision of this Contract or variation, including the introduction of additional terms and conditions, shall be effective unless it is set forth in writing and signed by BIONIC.
18.5 Waiver. A waiver of any right under the Contract 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 Contract 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, rights arising under the Contract are cumulative and to not exclude rights provided by law.
18.6 Force Majeure. Neither party will be liable nor deemed to be in breach of its obligations hereunder for any delay or failure in performance under this Contract or other interruption of service resulting, directly or indirectly, from acts of God, civil or military authority, act of war, accidents, electronic, computer or communications failures, natural disasters or catastrophes, strikes, or other work stoppages or any other cause beyond the reasonable control of the party affected thereby (“Force Majeure Event”). If the Force Majeure Event prevents BIONIC from providing any Services for more than 6 weeks, BIONIC shall, without limiting its other rights or remedies, have the right to terminate this Contract immediately by giving the Client written notice.
18.7 Notices. Unless otherwise provided for above, any notice or other communication to be given under this Contract shall be in writing, shall be deemed given upon receipt, and shall be delivered in person, by registered or certified mail, postage prepaid, return receipt requested, or by overnight delivery service with proof of delivery, and addressed as set forth above. Any notice or other communication shall be deemed to have been duly received if delivered personally, when left at such addressor, if sent by prepaid post or recorded delivery, at 9.00 am on the second Business Day after posting, or if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed. Where indicated in this Contract, notices may be served by email and shall be deemed to have been received one hour after transmission.
18.8 Governing Law and Jurisdiction. This Contract 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 laws of the Republic of Ireland.
18.9 Entire Contract. This Contract, together with the schedules, amendments, and other attachments, contains a full and complete expression of the rights and obligations of the Parties. If any provision of this Contract conflicts with any schedule, amendment or attachment to this Contract, this Contract will control with respect to the subject matter of such schedule, amendment or attachment. This Contract supersedes any and all other previous agreements, written or oral, made by the parties concerning its subject matter.
18.10 Severance. If any provision of this Contract is held by a court or any other competent authority to be unlawful, invalid 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 Contract shall not be affected. If any invalid, unenforceable or illegal provision of the Contract 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.
18.11 Headings. The headings to these Terms have been included solely for references and are to have no force or effect in interpreting the provisions of the Contract.
ANNEX A – DATA PROCESSING AGREEMENT (DPA)
1. Background and purpose
1.1 This Annex on data processing agreement (“DPA”) is an annexe to and forms an integral part of the service agreement or other written or electronic agreement (“Agreement”) which governs the use of Services (as defined in Section 2) provided by Bionic to the Customer, as defined below.
1.2 In the course of providing the Service to the Customer pursuant to the Agreement, Bionic may process Personal Data on behalf of Customer. The purpose and scope of this DPA is to agree on the terms and conditions for the Processing of Personal Data by Bionic on behalf of the Customer in connection with the Services. This DPA together with the Agreement forms a data processing agreement in the meaning of applicable Data Protection Laws. For the purposes of this DPA only, and except where indicated otherwise, the term “Bionic” shall also include Bionic’s Affiliates.
1.3 The parties acknowledge and agree that, by executing the Agreement to which this DPA is attached, the Customer enters into this DPA on behalf of itself and, as applicable, in the name and on behalf of its Affiliates authorised to use the Services, thereby establishing a separate data processing agreement between Bionic and each such authorized Affiliate. Each authorized Affiliate agrees to be bound by the obligations under this DPA and, to the extent applicable, the Agreement.
2.1 For the purpose of this DPA, unless expressly otherwise stated or evident in the context, the following capitalised terms shall have the following meanings, the singular (where appropriate) shall include the plural and vice versa, and references to Sections or Subsections shall be references to sections and subsections of this DPA.
“Affiliate” means any entity that directly or indirectly controls, is controlled by or is under common control with the Customer or Bionic. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Controller” means the entity, which determines the purposes and means of the Processing of Personal Data.
“Customer” means Bionic’s customer or other business partners for which Bionic is providing the Services.
“Data Protection Laws” means applicable data protection regulations and legislation, including but not limited to the GDPR and the data protection or privacy laws of any other country.
“Data Subject” means the identified or identifiable person to whom Personal Data relates.
“EU” means European Union.
“EEA” means the European Economic Area.
“GDPR” means the Regulation (EU) 2016/679 of the European Parliament and the Council of 27 April 2016 on the protection of natural persons with regard to the Processing of Personal Data and on the free movement of such data, and repealing Directive 95/46/EC.
“Personal Data” means any information relating to an identified or identifiable natural person.
“Processing” means any operation or set of operations which is performed upon Personal Data, whether or not by automatic means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.
“Processor” means the entity which Processes Personal Data on behalf of the Controller.
“Services” means the services described in the Agreement and other services supplied by or on behalf of Bionic to the Customer either directly or through a third party engaged by the Customer.
“Standard Data Protection Clauses” has the meaning given to it in Section 5.4.
“Sub-processor” means another processor engaged by Bionic in the Processing of Personal data and, where applicable, possible other Processor engaged by the Subprocessor of Bionic.
“Supervisory authority” shall have the meaning set forth in the GDPR.
2.2 In addition, unless expressly otherwise stated, the applicable definitions provided in the Agreement shall be applied to this DPA. In case a definition provided in this DPA and a definition provided in the Agreement conflicts, for the purposes of this DPA the definition provided in this DPA shall prevail.
3. Processing of Personal data
3.1 Roles of the Parties
3.1.1 For the purposes of the Processing of Personal Data, the Customer shall be the Controller and Bionic shall be the Processor. There are also other parties involved in the provision of the Services (such as providers of social media marketing platforms). However, Bionic does not have an access to the personal data held and processed by such third parties and such processing is not in the scope of this DPA.
3.2 Subject matter, nature and purpose
3.2.1 For the purposes of performing the Services, Bionic Processes Personal Data on behalf of the Customer.
3.2.2 The nature and the purpose of the Processing is to supply and enable the Services provided by Bionic to the Customer. The Processing of Personal Data shall take place solely for the purposes defined herein and Bionic shall not be entitled to use the Personal Data for any other purposes, unless otherwise stated in the Agreement. The Customer hereby authorises Bionic to transfer Personal Data to those social media platforms and other third parties who are involved in the provision of the Services.
Nothing in this DPA shall operate to transfer, assign or otherwise grant to Bionic any right or interest to the Personal Data, unless otherwise stated in the Agreement.
3.3 Personal data and Data subjects
3.3.1 The Customer may submit Personal Data to the Services, the extent of which is determined and controlled by the Customer in its sole discretion.
3.3.2 The types of Personal Data subject to the Section 3.2.1, considering the nature of the Services, consist of the end user data from the social media platforms used by the Customer, and possible direct and indirect Personal Data included to the custom conversion data provided by the Customer or conversion data provided by Bionic’s integrations as agreed in the Agreement.
3.3.3 Personal Data may also include other types of Personal Data if required for the purpose of the Processing, as agreed between the Parties.
3.3.4 Personal Data may also concern other categories of Data Subjects if required for the purpose of the Processing, as agreed between the Parties.
3.4 Duration and termination of the Processing
3.4.1 This DPA become effective simultaneously with the Agreement and shall continue to be in effect until the Agreement is terminated. The duration of the Processing of Personal Data is conditional to the term of the Agreement. Certain Processing activities shall be conducted as long as such Processing is required for the supply of the Services.
3.4.2 If any Processing by Bionic is required after termination of the Agreement, e.g. in order to transfer data back to the Customer such Processing shall be conducted in accordance with the provisions of this DPA.
3.4.3 In the event of termination of the Agreement, Bionic shall delete the Personal Data, or if requested by the Customer in writing, return the Personal Data to the Customer in commonly used format as soon as practically possible after the end of the Agreement and shall be deleted thereafter from the systems of Bionic.
3.4.4 If and to the extent it is required by law that any Personal Data needs to remain in the possession of Bionic, the Customer shall be notified thereof and shall be provided with copies of such data. In such case, Bionic shall ensure the confidentiality of all such Personal Data and shall ensure that such Personal Data is processed only when necessary for the purpose(s) specified in the applicable laws requiring such storage and for no other purpose.
3.4.5 After the termination of the Agreement, Bionic shall provide, upon the Customer’s request, the Customer with a written certification that it has fully complied with the Subsections from 3.3.3 to 3.3.4 above.
3.5 Instructions for Processing
3.5.1 The Personal Data shall be processed in accordance with Customer’s documented instructions for Processing of the Personal Data. This DPA and the Agreement are Customer’s complete and final documented instructions at the time of signature of the Agreement to Bionic for the Processing of Personal Data. Any additional or alternate instructions must be agreed upon separately. For the avoidance of doubt, Customer’s instructions for the Processing of Personal Data shall comply with Data Protection Laws.
3.5.2 Bionic shall process the Personal Data only according to documented instructions given by the Customer, including with regard to transfers of Personal Data to a country outside the EU/EEA.
3.5.3 The instructions referred to in Subsection 3.5.1 may be amended from time to time as needed for the purposes of the Processing.
3.5.4 If Bionic can not follow the instructions given by the Customer due to applicable compelling laws or it considers an instruction to infringe any law, Bionic shall immediately inform the Customer of such matter.
3.6 General obligations of the Parties
3.6.1 Customer shall, in its use of the Services, Process Personal Data in accordance with the requirements of Data Protection Laws. Customer shall have sole responsibility for the accuracy, quality, and legality of Personal Data and the means by which Customer acquired Personal Data.
3.6.2 Parties shall comply with all applicable Data Protection Laws in the Processing of the Personal Data. In addition, Bionic must adhere with good practices of the industry.
Bionic shall implement appropriate technical and organisational measures for security of Processing in order to ensure an appropriate level of security as required by the Data Protection 3.6.3 Laws and considering the Personal Data specified in Section 3.3, including the measures provided in the Section 6 below.
3.6.4 Bionic shall provide reasonable assistance to the Customer in ensuring the compliance with the provisions on security of the Personal Data as set forth in the Data Protection laws.
3.6.5 Bionic shall assist the Customer by appropriate technical and organisational measures in the fulfilment of the Customer’s obligation to respond to requests for exercising the data subject’s rights under the Data Protection Laws.
3.6.6 Bionic shall make available to the Customer all information necessary to demonstrate compliance with the obligations laid down in this DPA and the Data Protection Laws, in particular with the principles relating to Processing of Personal Data as laid down in the GDPR.
4.1 Customer acknowledges and agrees that (a) Bionic’s Affiliates may be retained as Sub-processors; and (b) Bionic and its Affiliates respectively may engage third-party Sub-processors in connection with the provision of the Services.
4.2 Upon Customer’s request, Bionic shall inform the Customer in writing of the Sub-processors used in the Services and the specific Processing activities they are engaged for. Bionic shall also inform the Customer in writing of any intended changes concerning the addition or replacement of Sub-processors, thereby giving the Customer the opportunity to object to such changes.
4.3 Where Bionic engages a Sub-processor for Processing, Bionic has entered into a written agreement with each Sub-processor containing data protection obligations not less protective than those in this DPA with respect to the protection of Personal Data to the extent applicable to the nature of the Services provided by such Sub-processor, in particular regarding the provision of sufficient guarantees to implement appropriate technical and organizational measures in such a manner that the Processing will meet the requirements of the applicable Data Protection Laws.
4.4 Bionic hereby enters into this Agreement for and on behalf of each of its Affiliates, thereby establishing a separate data processing agreement between the Customer and each such Bionic Affiliate. Addition or replacement of such Bionic Affiliates shall be subject to Subsection 4.2 above. The Customer may not object such additions or replacements without a cogent reason
4.5 Where a Sub-processor fails to fulfil its data protection obligations, Bionic shall remain fully liable to the Customer for the performance of the Sub-processors obligations and any liabilities related thereto to the same extent Bionic would be liable if performing the services of each Sub-processor directly under the terms of this DPA.
5. Location and transfers of data
5.1 The provisions of Sections 5.2-5.4 shall apply to any transfers of Personal Data processed under this DPA from the EU/EEA to countries that do not ensure an adequate level of data protection within the meaning of Data Protection Laws of the foregoing territories.
5.2 Bionic may transfer to or process Personal Data in a non-EU/EEA country, which the EU Commission has not found to provide an adequate level of protection. In case Bionic or Sub-processor engaged by Bionic processes or in any way makes the Personal Data accessible outside the EU/EEA countries it must secure that such Processing is performed under appropriate safeguards and otherwise complies with the statutory requirements regarding the Processing of Personal Data outside the EU/EEA countries.
5.3 When applicable, Bionic shall assist the Customer to enter into appropriate contractual arrangements with the recipient in a non-EU/EEA country for the transfer of Personal Data to the applicable third countries outside the EU/EEA as adopted and approved by the EU Commission or competent data protection regulatory authority in accordance with applicable Data Protection Laws (“Standard Data Protection Clauses”). Alternatively, the Customer may authorise Bionic to enter into Standard Data Protection Clauses on its behalf.
5.4 Upon on the Customer’s request, Bionic shall provide written information about the location(s) in which Personal Data is processed pursuant to this DPA.
6. Security of Processing
6.1 Bionic shall implement and maintain at all times appropriate operational, administrative, physical and technical measures in accordance with common industry practice to protect the Personal Data against accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Personal Data transmitted, stored or otherwise processed.
6.2 Bionic shall ensure that persons authorised to process the Personal Data have committed themselves to appropriate confidentiality or are under an appropriate statutory obligation of confidentiality.
6.3 Bionic shall limit access to the Personal Data to personnel on a need-know-basis. The Personal Data and the persons accessing to any data shall be limited to what is necessary in relation to specific Processing activities.
7. Data Breaches
7.1 In case of any breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, Personal Data (“Data Breach”), Bionic shall notify the Customer thereof in writing without undue delay after having become aware of it. The notification shall at least:
(a) describe the nature of the Data Breach, the affected Personal Data, including the categories and approximate number of Data Subjects concerned and the categories and approximate number of Personal Data records concerned;
(b) communicate the name and contact details of a contact point where more information can be directly obtained in case such person is other than the contact person under the Agreement;
(c) describe the likely consequences of the Data Breach, in particular to the Personal Data; and
(d) describe the measures taken or proposed to be taken by Bionic to address the Data Breach, including, where appropriate, measures to mitigate its possible adverse effects.
7.2 Where, and in so far as, it is not possible to provide the information under the Section 7.1 at the same time without undue delay, the information may be provided in several parts within the time limit.
7.3 Upon the Customer’s request, Bionic shall assist the Customer with reasonable effort to document an occurred Data Breach as required by Data Protection Laws.
7.4 Upon the Customer’s request, Bionic shall assist the Customer with reasonable effort in reporting the Data Breach to the supervisory authority and to the data subjects in accordance with the Customer’s instructions.
8.1 Customer or another auditor mandated by the Customer may, once a year at most, audit the level of the data protection on and appropriateness of the Processing of Personal Data by Bionic upon fourteen (14) working days’ prior written notice to ensure the compliance with this DPA and Data Protection Laws.
8.2 The auditor mandated by the Customer may not be direct or indirect competitor of Bionic. Bionic has a right to require the mandated auditor to enter into an appropriate confidentiality agreement prior to the audition.
8.3 Bionic shall contribute to the aforementioned audits and make available all information required to complete the audits. The audits shall be performed during the normal working hours and shall not unreasonably disturb the operations of Bionic.
8.4 Customer shall carry its own costs relating to the audits and shall reimburse Bionic for any reasonable costs and expenses that Bionic may incur due to any such audit. Before the commencement of any such on-site audit, Customer and Bionic shall mutually agree upon the scope, timing, and duration of the audit in addition to the reimbursement rate for which Customer shall be responsible.
8.5 The Parties agree that Bionic has the right to provide the Customer with an audit report covering the data processing and especially the technical and organizational security measures at its own costs. In this case, the Customer agrees that the rights to audit Bionic have been satisfied and that the Customer has no additional rights under this Section 8 to audit Bionic provided that
(a) the audit has been performed by a recognized, independent third party with proven experience in the field; and
(b) the audit report is no older than twelve (12) months