This agreement is between eXpd8 Limited, incorporated in the Republic of Ireland (Number 351136) and having its Registered Office at Digital Office Centre, Balheary Rd, Balheary Demesne, Swords, County Dublin, (“eXpd8”) and you, (“the Customer”) for the supply and provision of Subscription Service software (“Thread Legal”)
If the Customer does not agree to be bound by these Terms and Conditions, the Customer cannot order any Subscription Services.
eXpd8’s issue of a Quote to the Customer constitutes a contractual offer and the Customer signing and returning a copy of a Quote will conclude the contract between eXpd8 and the Customer relating to the Subscription Services listed in the Quote.
PART ONE – SUBSCRIPTION SERVICES.
1. Access to the Subscription Services.
eXpd8 grants to the Customer a non-exclusive, non-transferable licence to use the Subscription Services for the Customer’s internal business purposes only, subject to the following conditions: –
1.1. The Subscription Services are located on the Platform. eXpd8 has full administrative access rights to the Platform. Users may access the Subscription Services, but have no right to administer the Platform or receive a copy of the object code or source code to the Software.
1.2. Users must have appropriate speed Internet connection, and hardware and software that is compatible with the Subscription Services, compatible with accessing the Subscription Services, as set out in the Documentation. This is not eXpd8’s responsibility.
1.3. eXpd8 may periodically Upgrade and Update the Services, in order to provide Users with a greater, evolving user experience. Some of these changes shall occur automatically, during scheduled maintenance or Update plans and the Customer will be notified of these changes. While others may require the Customer to schedule and implement the changes. The changes may also mean that Users need to upgrade their equipment in order to make efficient use of the Subscription Services. eXpd8 shall provide the Customer with reasonable notification in advance in this case.
1.4. eXpd8 has all required distribution rights to the intellectual property in the Software and the Documentation.
2. Conditions of Use.
The Subscription Services provided to the Customer are non-exclusive, non-transferable (except as provided in Clause 20.4), and are for the Customer’s internal business use only. The Customer’s right to use the Subscription Services is subject to the following conditions:-
The Customer shall not:
2.1. Transfer to any other person any of its rights to use the Subscription Services;
2.2. Sell, license, rent or lease the Subscription Services;
2.3. Make the Subscription Services available to anyone who is not a User;
2.4. Create any derivative works based upon the Subscription Services or Documentation;
2.5. Copy any feature, design or graphic in, or reverse engineer the Software;
2.6. Access the Subscription Services (i) in order to build a competitive solution or to assist someone else to build a competitive solution; or (ii) if the User is an employee or contractor of an eXpd8 competitor;
2.7. Use the Subscription Services in a way that violates any criminal or civil law;
2.8. Load test the Subscription Services in order to test scalability;
3. User Content
3.1. The Customer provides all data for use in the Subscription Services, and eXpd8 is not obliged to modify or add to User Content except as specified in Clause 4. The Customer is solely responsible for User Content and the accuracy of User Content.
3.2. User Content belongs to the Customer or its licensors, and eXpd8 makes no claim to any right of ownership in it.
3.3. eXpd8 shall keep User Content confidential in accordance with Clause 16 of this Agreement.
3.4. Subject to the terms of Clause 4, eXpd8 shall only be entitled to use User Content strictly as necessary to carry out its obligations under this Agreement, and for no other purpose. However, eXpd8:
3.4.1. may observe and report back to the Customer on the Customer’s usage of the Subscription Services, and make recommendations for improved usage of the Subscription Services;
3.4.2. may identify trends and publish reports on its findings provided the reports include data aggregated from multiple Customer sites and do not identify the Customer; and,
3.4.3. shall use reasonable endeavours to ensure that the data centre containing the User Content complies with ISO 27001
3.6. Sharing of accounts is not permitted unless expressly authorised in writing by eXpd8. Users must keep account details confidential and Users should not reveal their username or password to any unauthorised third parties. eXpd8 accepts no liability for any losses or damages incurred as a result of account details being shared in breach of the terms of this Agreement. It is recommended that Users do not save account details in their internet browser.
3.7. Passwords must be robust and difficult to break and renewed on a regular basis.
4. Acceptable Usage Policy
4.1. Without prejudice to the generality of Clause 2.7, when using the Subscription Services; Users should do so in accordance with the following rules:
4.2. Users must not use obscene or vulgar language;
4.3. User Sites may not contain any material that is unlawful or otherwise objectionable (including that which may be in breach of rules, regulations or legislation in force in the Republic of Ireland or any other jurisdiction in which your User Site can be lawfully accessed. This does not extend to material which may be automatically blocked in certain jurisdictions but that is lawful in your home country);
4.4. Your User Site may not contain any material that is intended to promote or incite violence or any other unlawful conduct against any group, individual or animal. This includes, but is not limited to, the provision of instructions on how to assemble weapons of any kind, bombs, grenades or other explosive devices;
4.5. User Sites may not infringe the intellectual property rights of any third party including, but not limited to, copyright, trademarks, patents and designs;
4.6. User Sites may not contain any material that may contain viruses or other software or instructions that may damage or disrupt other software, computer hardware or communications networks;
4.7. User Sites may not be used for unauthorised mass-communications such as “spam” or “junk mail”;
4.8. eXpd8 does not screen or pre-approve any User Site or User Content (although Users acknowledge that eXpd8 may do so if it wishes).
4.9. eXpd8 may restrict a User Site to comply with the provisions of sub-Clause 4.1 without prior consultation. In cases of severe breaches of the provisions of sub-Clause 4.1, a User Site may be taken down and the relevant account may be suspended or terminated. The Customer will not be informed in writing of the reasons for such alterations or take downs.
4.10. eXpd8 accepts no responsibility or liability for any infringement of third party rights by User Sites.
4.11. eXpd8 will not be liable in any way or under any circumstances for any loss or damage that any User may incur as a result of such User Sites, or eXpd8 exercising its rights under this Agreement, nor for any errors or omissions in User Sites. Use of and reliance upon User Sites is entirely at your own risk.
4.12. The Customer acknowledges that eXpd8 may retain copies of any and all communications, information, User Content and User Sites sent to eXpd8.
4.13. Users must comply with the terms of the GDPR at all times.
5. Intellectual Property
5.1. Subject to the exceptions in Clause 6 of this Agreement, all Content that is not User Content, and the Database and the Software are the property of eXpd8, or eXpd8’s Affiliates or licensors. By continuing to use the Subscription Services you acknowledge that such material is protected by applicable Republic of Ireland and international intellectual property and other laws.
5.2. You may not print, reproduce, copy, distribute, store or in any other fashion re-use Content from the Subscription Services unless otherwise given eXpd8’s express written permission to do so. Specifically, the Customer agrees that it will not systematically copy Content from the Subscription Services with a view to creating or compiling any form of comprehensive collection, compilation, directory or database unless given eXpd8’s express written permission to do so.
6. User Site Intellectual Property
6.1. The intellectual property rights subsisting in the User Content of User Sites belong to the User to which that/those User Site(s) belong(s) unless it is expressly stated otherwise.
6.2. Where expressly indicated, certain Content available through User Sites and the intellectual property rights subsisting therein belongs to other parties.
6.3. The third party Content described in this Clause 6, unless expressly stated to be so, is not covered by any permission granted by Clause 5 of these Terms and Conditions to use Content.
6.4. For the avoidance of doubt, the Database (excluding the User Content therein) shall not be considered User Content.
7. Third Party Intellectual Property
7.1. Unless otherwise expressly indicated, all Intellectual Property rights including, but not limited to, Copyright and Trademarks, in Content belong to the manufacturers or distributors of such products as may be applicable.
7.2. Subject to Clause 5 you may not reproduce, copy, distribute, store or in any other fashion re-use Content unless otherwise indicated on the Subscription Services or the Documentation or unless given express written permission to do so by the relevant manufacturer or supplier.
8. Subscription Services Warranties
eXpd8 warrants that: (i) the Subscription Services will function substantially as described in the Documentation; and (ii) eXpd8 owns or otherwise has the right to provide the Subscription Services to the Customer under this Agreement. The remedies set out in Clause 8 are the Customer’s exclusive remedies for breach of either warranty.
8.1. If the Subscription Services do not function substantially in accordance with the Documentation, eXpd8 shall, at its option, either (i) modify the Subscription Services to conform to the Documentation; or (ii) provide a workaround solution that will reasonably meet the Customer’s requirements. If neither of these options is commercially feasible, either party may terminate the relevant Quote under this Agreement, in which case eXpd8 shall refund to the Customer all fees pre-paid to eXpd8 under the relevant Quote for unused Subscription Services.
8.2. If the normal operation, possession or use of the Subscription Services by the Customer is found to infringe any third party intellectual property right or eXpd8 believes that this is likely, eXpd8 shall, at its option, either (i) obtain a license from such third party for the benefit of the Customer; (ii) modify the Subscription Services so that they no longer infringe; or (iii) if neither of these options is commercially feasible, terminate the relevant Quote under this Agreement, in which case eXpd8 shall refund to the Customer all fees pre-paid to eXpd8 under the relevant Quote for unused Subscription Services.
8.3. However, eXpd8 has no warranty obligations for:
8.3.1. the extent that Software has been modified by the Customer or any third party, unless the modification has been approved in writing by eXpd8;
8.3.2. problems in the Subscription Services caused by any third party software or hardware, by accidental damage or by other matters beyond eXpd8’s reasonable control.
PART TWO – PROFESSIONAL SERVICES.
9. Professional Services Warranties.
eXpd8 warrants that (i) the Professional Services shall substantially conform to the applicable Quote; and (ii) the Professional Services shall be performed with reasonable skill, care and diligence. The remedies set out in Clause 9 are the Customer’s exclusive remedies for breach of either warranty. If the Professional Services do not conform to the Quote or are not performed with reasonable skill, care and diligence, eXpd8 shall re-perform the Professional Services to the extent necessary to correct the defective performance.
10. The Customer’s Responsibilities.
The Customer shall provide eXpd8 with all information, access, and full good faith cooperation reasonably necessary to enable eXpd8 to deliver the Professional Services, and shall do anything that is identified in the Quote as the Customer’s responsibility. If the Customer fails to do this, eXpd8 shall be relieved of its obligations to the extent that the obligations are dependent upon the Customer’s performance.
PART THREE – GENERAL.
11. Term of Agreement and Purchased Services
11.1 This Agreement starts on the date that the Customer signs a Quote and ends when eXpd8 no longer is obliged to provide the Customer with Subscription Services or Professional Services under any Quote. If you elect to use the Subscription Services for a free trial period and do not execute an order form before the end of that period, this Agreement will terminate at the end of the free trial period.
11.2 The Term of the Purchased Services purchased by you on a Quote commence on the start date specified on the applicable Quote and continue through the End Date specified therein. Except as otherwise specified in the applicable Quote. All Purchased Services shall automatically renew for additional periods equal to the expiring Subscription term or one year (whichever is shorter), unless either party gives the other notice of non-renewal at least 30 days before the end of the relevant subscription term.
12. Pricing and Payments.
12.1. The Customer shall pay the fees listed in, and in accordance with, the relevant Quote.
12.2. If the Customer initially purchases Subscription Services for a term, and subsequently orders an additional product and/or user, the purchase price for the additional product and/or user shall be pro-rated so that the added subscriptions terminate on the same day as the initial subscription.
12.3. The pricing during any renewal term shall be the same (or substantially equivalent for any replacement services if the Purchased Services are no longer available or are substantially changed for the renewal term) as that during the prior subscription term unless we have given you written notice of a pricing increase at least 60 days before the end of such prior term, in which case the price increase shall be effective starting the beginning of the renewal term and thereafter.
12.4 The Thread Term starts ninety (90) days from the date of order acceptance or the date of installation of the Software, whichever is sooner.
12.5 The Payment Term starts ninety (90) days from the date of order acceptance, or upon installation of the Software, whichever is sooner
13. Termination and Suspension.
13.1. The Customer may terminate rights granted to a license subscription under a particular Quote only after expiry of the initial term specified in the Quote. Such notice must be given in writing not less than 30 days prior to the date of expiry of the said initial term (time being of the essence) otherwise the subscription will continue for the same term as specified in the Quote at the Fee specified in the Quote. Termination applies to the Thread Subscription Software licencing element only and does not include any service elements contained on the Quote. Service elements include data conversion and/or on-site training that are itemised separately on the Quote. Service elements will only be terminated when a settlement of 100% of these service costs have been recovered by eXpd8.
13.2. Either party may terminate rights granted under a particular Quote if the other breaches any material term of the Quote (including a material term of this Agreement insofar as it applies to the Quote) and the breach is not cured within 30 days of written notice.
13.3. Instead of terminating rights granted to the Customer under a Quote, eXpd8 may suspend the provision of Subscription Services to the Customer for a period of up to 45 days. At any time during that period, eXpd8 may terminate the rights granted to the Customer.
13.4. Sections 2.4, 2.5, 3.3, 4,5,6,7, 14, 15, 16, 17 and 18 continue after this Agreement ends.
13.5. If eXpd8 terminates a Quote under this Agreement because of non-payment by the Customer, all unpaid fees for the remainder of the Subscription Term immediately fall due for payment.
13.6. Upon termination of this Agreement (except in the case of termination due to the Customer’s material breach of this Agreement), the Customer will be given restricted access for a period of ten days in which to recover their User Content. After such period, we shall have no obligation to maintain or provide any of your data and shall thereafter, unless legally prohibited, delete all your data in our systems or otherwise in our possession or under our control. eXpd8 can provide a Customer Content recovery service to the Customer, should they wish to use it. eXpd8 reserves the right to charge for this service.
13.7. eXpd8 may retain User Content in backup media for an additional period of up to 12 months after the date of termination of this Agreement, or longer if required by law.
13.8. Termination also covers the eventuality of data migration for any other reason including ceasing to offer the services or changing suppliers.
14. Warranty Disclaimer.
EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THE SUBSCRIPTION SERVICES, SOFTWARE AND PROFESSIONAL SERVICES ARE PROVIDED WITH NO OTHER WARRANTIES OF ANY KIND, AND EXPD8 DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. eXpd8 DOES NOT WARRANT THAT THE USE OF THE SUBSCRIPTION SERVICES SHALL BE UNINTERRUPTED OR ERROR-FREE.
15. Limitation of Liability.
NEITHER PARTY SHALL BE LIABLE UNDER THIS AGREEMENT FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOST OR CORRUPTED DATA, LOST PROFITS, LOST BUSINESS OR LOST OPPORTUNITY), OR ANY OTHER SIMILAR DAMAGES UNDER ANY THEORY OF LIABILITY (WHETHER IN CONTRACT, TORT/DELICT, STRICT LIABILITY OR ANY OTHER THEORY), EVEN IF THE OTHER PARTY HAS BEEN INFORMED OF THIS POSSIBILITY. THE CUSTOMER ASSUMES ALL RESPONSIBILITY FOR THE SELECTION OF THE SUBSCRIPTION SERVICES, SOFTWARE AND DOCUMENTATION NECESSARY TO ACHIEVE THE CUSTOMER’S INTENDED RESULTS, AND FOR THE USE AND RESULTS OF THE SUBSCRIPTION SERVICES OR WORK PRODUCT. EACH PARTY’S TOTAL LIABILITY FOR ANY DIRECT LOSS, COST, CLAIM OR DAMAGES OF ANY KIND RELATED TO THE RELEVANT QUOTE SHALL NOT EXCEED THE AMOUNT OF THE FEES PAID OR PAYABLE BY THE CUSTOMER TO eXpd8 UNDER SUCH RELEVANT QUOTE DURING THE PERIOD OF 12 MONTHS BEFORE THE EVENT GIVING RISE TO SUCH LOSS, COST, CLAIM OR DAMAGES. THIS LIMITATION ON LIABILITY WAS AND IS AN EXPRESS PART OF THE CONTRACT BETWEEN eXpd8 AND THE CUSTOMER AND WAS A CONTROLLING FACTOR IN THE SETTING OF THE FEES PAYABLE TO eXpd8. HOWEVER, THERE IS NO LIMITATION ON DIRECT LOSS, CLAIM OR DAMAGES ARISING AS A RESULT OF AN INFRINGEMENT OF eXpd8’S INTELLECTUAL PROPERTY RIGHTS BY THE CUSTOMER, OR A BREACH OF SECTION 16 OF THIS AGREEMENT BY THE CUSTOMER, OR IN CONNECTION THE CUSTOMER’S INDEMNIFICATION OBLIGATIONS.
eXpd8’S LIABILITY UNDER THIS AGREEMENT (EXCEPT WHERE PROVIDED OTHERWISE IN THIS AGREEMENT TO A LESSER EXTENT) (INCLUDING FOR LOSS OF DATA WHETHER PERSONAL DATA OR OTHERWISE) SHALL BE LIMITED TO THE AMOUNT OF PROFRESSIONAL INDEMNITY INSURANCE UNDERWRITTEN IN THE NAME OF eXpd8 WHICH SHALL BE €500,000.
16.1. The Subscription Services, Software, Documentation and Quote contain valuable trade secrets that are the sole property of eXpd8, and the Customer agrees to use reasonable care to prevent third parties from learning of these trade secrets. The Customer shall take reasonable care to prevent unauthorised access to or duplication of the Subscription Services, Software, Documentation, and Quote. The Customer shall use reasonable endeavours to ensure that their employees, agents and independent contractors are bound by the same duty of confidentiality to eXpd8 in terms of this Clause 16.
16.2. The User Content may include valuable trade secrets that are the sole property of the Customer. eXpd8 shall take reasonable care to prevent third parties from learning of these trade secrets. eXpd8 use reasonable endeavours to ensure that their employees, agents and independent contractors are bound by the same duty of confidentiality to eXpd8 in terms of this Clause 16.
16.3. Sections 16.1 and 16.2 do not apply to any information that (i) is now, or subsequently becomes, through no act or failure to act on the part of receiving party (the “Receiver”), generally known or available; (ii) is known by the Receiver at the time of receiving such information, as evidenced by the Receiver’s records; (iii) is subsequently provided to the Receiver by a third party, as a matter of right and without restriction on disclosure; or (iv) is required to be disclosed by law, provided that the party to whom the information belongs is given prior written notice of any such proposed disclosure.
17. Indemnification by eXpd8.
17.1.eXpd8 shall indemnify and hold harmless the Customer, its Affiliates, directors and employees from any damages finally awarded against the Customer (including, without limitation, reasonable costs and legal fees incurred by the Customer) arising out of any third party suit, claim or other legal action alleging that the use of the Subscription Services or Documentation by the Customer(other than User Content – see Clauses 4 and 18) infringes any copyright, trade secret or Republic of Ireland patent, (“Legal Action”). eXpd8 shall provide reasonable assistance in the defence of such Legal Action.
17.2.However, eXpd8 shall have no indemnification obligations for any Legal Action arising out of: (i) a combination of the Subscription Services and/or Software with software or products not supplied, or approved in writing by eXpd8; (ii) any repair, adjustment, modification or alteration to the Subscription Services by the Customer or any third party, unless approved in writing by eXpd8; or (iii) any refusal by the Customer to install and use a non-infringing version of the Subscription Services offered by eXpd8 under Clause 8.2(ii). Clause 8.2(ii) and this Clause 17 state the entire liability of eXpd8 with respect to any intellectual property infringement by the Subscription Services or Software or Documentation.
17.3.The Customer shall give written notice to eXpd8 of any Legal Action no later than 30 days after first receiving notice of a Legal Action, and shall give copies to eXpd8 of all communications, notices and/or other actions relating to the Legal Action. The Customer shall give eXpd8 or its Assignee the sole control of the defence of any Legal Action, shall act in accordance with the reasonable instructions of eXpd8 and shall give eXpd8 such assistance as eXpd8 reasonably requests to defend or settle such claim. eXpd8 shall conduct its defence at all times in a manner that is not adverse to the Customer’s interests. The Customer may employ its own counsel to assist it with respect to any such claim. The Customer shall bear all costs of engaging its own counsel, unless engagement of counsel is necessary because of a conflict of interest with eXpd8 or its counsel, or because eXpd8 fails to assume control of the defence. The Customer shall not settle or compromise any Legal Action without eXpd8’s express written consent. eXpd8 shall be relieved of its indemnification obligation under Clause 17 if the Customer materially fails to comply with Clause 17.2.
18. Indemnification by the Customer
18.1.The Customer shall indemnify and hold harmless eXpd8, its Affiliates, directors, and employees from any damages finally awarded against eXpd8 (including, without limitation, reasonable costs and legal fees (including Counsel’s fees) incurred by eXpd8) arising out of any third party suit, claim or other legal action (including but not limited to any governmental investigations, complaints and actions) in connection with the User Content, including, without limitation, any action for infringement of any trademark, copyright, trade secret, right of publicity or privacy (including defamation), patent or other proprietary right with respect to the User Content (“Legal Claim”).
18.2.eXpd8 shall give written notice to the Customer of any Legal Claim no later than 30 days after first receiving notice of a Legal Claim, and shall give copies to the Customer of all communications, notices and/or other actions relating to the Legal Claim. eXpd8 shall give the Customer the sole control of the defence of any Legal Claim, shall act in accordance with the reasonable instructions of the Customer and shall give the Customer such assistance as the Customer reasonably requests to defend or settle such claim. The Customer shall conduct its defence at all times in a manner which is not adverse to eXpd8’s interests. eXpd8 may employ its own counsel to assist it with respect to any such claim. eXpd8 shall bear all costs of engaging its own counsel, unless engagement of counsel is necessary because of a conflict of interest with the Customer or its counsel, or because the Customer fails to assume control of the defence. eXpd8 shall not settle or compromise any Legal Claim without the Customer’s express written consent. The Customer shall be relieved of its indemnification obligation under Clause 18 if eXpd8 materially fails to comply with Clause 18.1.
19.1. eXpd8 may list the Customer as a customer and use the Customer’s logo on eXpd8’s website, on publicly available Customer lists, and in media releases with the Customer’s consent, such consent not to be unreasonably withheld
20.1. This Agreement represents the entire agreement of the parties, and supersedes any prior or current agreements or understandings, whether written or oral. If there is a conflict between the Agreement and a Quote, the Quote shall prevail.
20.2. This Agreement may not be changed or any part waived except by written agreement between the parties.
20.3. This Agreement shall be governed by the laws of the Republic of Ireland. The parties consent to the exercise of exclusive jurisdiction of the Irish Courts for any claim relating to this Agreement.
20.4. The Customer shall not assign or otherwise transfer any of its rights or obligations under this Agreement without the prior written consent of eXpd8. eXpd8 may not withhold such consent in the case of an assignment by the Customer of its rights and obligations to an entity that has acquired all, or substantially all of the Customer’s assets, or to an assignment that is part of a genuine corporate restructure. Any assignment in breach of this Clause is void.
21. DATA PROCESSING
21.1. The provisions of this Agreement shall apply to the processing of the Personal Data carried out for the Customer by eXpd8 in terms of the License, and to all Personal Data held by eXpd8 in relation to all such processing whether such Personal Data is held at the date of this Agreement or received afterwards.
21.2. This Agreement shall continue in full force and effect for so long as eXpd8 is processing Personal Data on behalf of the Customer.
21.3. eXpd8 is only to process the Personal Data received from the Customer:
21.3.1. for the purposes of this Agreement and not for any other purpose;
21.3.2. to the extent and in such a manner as is necessary for those purposes; and strictly in accordance with the Agreement or otherwise with the express written authorisation and instructions of the Customer (which may be specific instructions or instructions of a general nature or as otherwise notified by the Customer to eXpd8).
21.4. All instructions given by the Customer to eXpd8 shall be made in writing and shall at all times be in compliance with the GDPR and other applicable laws. eXpd8 shall act only on such written instructions from the Customer unless eXpd8 is required by law to do otherwise (as per Article 29 of the GDPR).
21.5. eXpd8 shall assist the Customer (where the Customer cannot do this itself via the Subscription Services) in complying with a legitimate data subject request to amend, transfer, delete, or otherwise dispose of Personal Data. Where permitted to do so by law, eXpd8 may charge a reasonable fee for providing such assistance.
21.6. Both Parties shall comply at all times with the GDPR and other applicable laws and shall not perform their obligations under this Agreement or any other agreement or arrangement between themselves in such way as to cause either party to breach any of its applicable obligations under the GDPR.
21.7. The Customer hereby warrants, represents, and undertakes that the Personal Data shall comply with the GDPR in all respects including, but not limited to, its collection, holding, and processing.
21.8. eXpd8 agrees to comply with any reasonable measures required by the Customer to ensure that its obligations under this Agreement are satisfactorily performed in accordance with any and all currently applicable legislation from time to time (including, but not limited to, the GDPR) and any best practice guidance issued by the DPC.
21.9. eXpd8 shall provide all reasonable assistance (at the Customer’s cost) to the Customer in complying with its obligations under the GDPR with respect to the security of processing, the notification of personal data breaches, the conduct of data protection impact assessments, and in dealings with the ICO.
21.10. When processing the Personal Data on behalf of the Customer, eXpd8 shall:
21.10.1. not process the Personal Data outside the European Economic Area (all EU member states, plus Iceland, Liechtenstein, and Norway) (“EEA”) without the prior written consent of the Customer and, where the Customer consents to such a transfer to a country that is outside of the EEA, to comply with the obligations of Data Processors under the provisions applicable to transfers of Personal Data to third countries set out in Chapter 5 of the GDPR by providing an adequate level of protection to any Personal Data that is transferred;
21.10.2. not transfer any of the Personal Data to any third party without the written consent of the Customer and, in the event of such consent, the Personal Data shall be transferred strictly subject to the terms of a suitable agreement, as set out in Clause 3.19;
21.10.3. process the Personal Data only to the extent, and in such manner, as is necessary in order to comply with its obligations to the Customer or as may be required by law (in which case, eXpd8 shall inform the Customer of the legal requirement in question before processing the Personal Data for that purpose unless prohibited from doing so by law);
21.10.4. implement appropriate technical and organisational measures, and take all steps necessary to protect the Personal Data against unauthorised or unlawful processing, accidental loss, destruction, damage, alteration, or disclosure;
21.10.5. make available to the Customer any and all such information as is reasonably required and necessary to demonstrate eXpd8’s compliance with the GDPR; and
21.10.6. inform the Customer immediately if it is asked to do anything that infringes the GDPR or any other applicable data protection legislation.
21.11. eXpd8 shall, at the Customer’s cost, assist the Customer in complying with its obligations under the GDPR. In particular, the following shall apply to data subject access requests, complaints, and data breaches.
21.12. eXpd8 shall notify the Customer without undue delay if it receives:
21.12.1. a subject access request from a data subject; or
21.12.2. any other complaint or request relating to the processing of the Personal Data.
21.13. eXpd8 shall, at the Customer’s cost, cooperate fully with the Customer and assist as required in relation to any subject access request, complaint, or other request, including by:
21.13.1. providing the Customer with full details of the complaint or request;
21.13.2. providing the necessary information and assistance in order to comply with a subject access request;
21.13.3. providing the Customer with any Personal Data it holds in relation to a data subject (within the timescales required by the Customer); and
21.13.4. providing the Customer with any other information requested by the Customer.
21.14. eXpd8 shall notify the Customer immediately if it becomes aware of any form of Personal Data breach, including any unauthorised or unlawful processing, loss of, damage to, or destruction of any of the Personal Data.
21.15. The Customer shall be liable for, and shall indemnify (and keep indemnified) eXpd8 in respect of any and all action, proceeding, liability, cost, claim, loss, expense (including reasonable legal fees and payments on a solicitor and client basis), or demand suffered or incurred by, awarded against, or agreed to be paid by, eXpd8 and any Sub-Processor arising directly or in connection with:
21.15.1. any non-compliance by the Customer with the GDPR or other applicable legislation;
21.15.2. any Personal Data processing carried out by eXpd8 or Sub-Processor in accordance with instructions given by the Customer that infringe the GDPR or other applicable legislation; or
21.15.3. any breach by the Customer of its obligations under this Agreement,
except to the extent that eXpd8 or Sub-Processor is liable under sub-Clause 3.16.
21.16. eXpd8 shall be liable for, and shall indemnify (and keep indemnified) the Customer in respect of any and all action, proceeding, liability, cost, claim, loss, expense (including reasonable legal fees and payments on a solicitor and client basis), or demand suffered or incurred by, awarded against, or agreed to be paid by, the Customer arising directly or in connection with eXpd8’s Personal Data processing activities that are subject to this Agreement:
21.16.1. only to the extent that the same results from eXpd8’s or a Sub-Processor’s breach of this Agreement; and
21.16.2. not to the extent that the same is or are contributed to by any breach of this Agreement by the Customer.
21.17. The Customer shall not be entitled to claim back from eXpd8 or a Sub-Processor any sums paid in compensation by the Customer in respect of any damage to the extent that the Customer is liable to indemnify eXpd8 or a Sub-Processor under sub-Clause 3.15.
21.18. Nothing in this Agreement (and in particular, this Clause 3) shall relieve either party of, or otherwise affect, the liability of either party to any data subject, or for any other breach of that party’s direct obligations under the GDPR. Furthermore, eXpd8 hereby acknowledges that it shall remain subject to the authority of the ICO and shall co-operate fully therewith, as required, and that failure to comply with its obligations as a data processor under the GDPR may render it subject to the fines, penalties, and compensation requirements set out in the GDPR.
21.19. In the event that eXpd8 appoints a Sub-Processor, eXpd8 shall:
21.19.1. enter into a Sub-Processing Agreement with the Sub-Processor which shall impose upon the Sub-Processor the same or similar obligations as are imposed upon eXpd8 by this Agreement; and
21.19.2. ensure that the Sub-Processor complies fully with its obligations under the Sub-Processing Agreement and the GDPR.
PART FOUR – DEFINITIONS.
22.1. “Affiliate” means an entity which controls, is controlled by, or is under common control with, a party, and control means the ability to vote 50% or more of the voting securities of any entity or otherwise having the ability to influence and direct the polices and direction of an entity;
22.2. “Content” means any text, graphics, images, audio, video, software, data compilations including, but not limited to, text, graphics, logos, icons, sound clips, video clips, data compilations, page layout, underlying code and software and any other form of information capable of being stored in a computer that appears on, is uploaded to or forms part of this Website or the Services or the Platform; BUT excluding User Content;
22.3. “Database” means the database stored on the Platform which contains inter alia User Content;
22.4. “Data Controller”, “Data Processor”, “Personal Data” “processing” and “data subject” shall have the meanings ascribed to them in the GDPR;
22.5. “DPC” means the Republic of Ireland’s supervisory Office of the Data Protection Commissioner;
22.6. “Documentation” means user documentation provided electronically by eXpd8 for use with the Subscription Services, as periodically updated;
22.7. “GDPR” means the General Data Protection Regulation (Regulation (EU) 2016/679);
22.8. “Quote” means a document provided by eXpd8 and signed by the Customer that describes the Subscription Services and Professional Services being purchased and/or licensed by the Customer in terms of this Agreement and any additional conditions pertaining thereto;
22.9. “Personal Data” means all such “personal data”, as defined in Article 4 of the GDPR;
22.10. “Platform” means the hardware and software environment in which the software element of the Subscription Services operates, which comprises one or more server computers (whether virtual or not), mirroring/duplicating/back-up and storage systems and relative hardware operating software, virtual machine software (where relevant), operating system software, database software, anti-virus and security software, switches, power supplies and telecommunications infrastructure;
22.12. “Professional Services” means the training, consulting, development, support and other professional services identified on a Quote but does not include the Subscription Services;
22.13. “Service Level Agreement” means the service level agreement entered into between you and eXpd8 for Professional Services;
22.14. “Software” means the eXpd8 Limited’s proprietary operating software including Thread Legal and the third party software written in object and source code residing on and used for operating the Platform and the Subscription Services as Updated and Upgraded from time to time;
22.15. “Sub-Processor” means a sub-processor appointed by eXpd8 to process the Personal Data;
22.16. “Sub-Processing Agreement” means an agreement between eXpd8 and a Sub-Processor governing the Personal Data processing carried out by the Sub-Processor, as described in Clause 21;
22.17. “Subscription Services” means the hosted the Customer experience solutions identified in a Quote, and any modifications periodically made by eXpd8, but does not include the Professional Services;
22.18. “Subscription Term” means the period of time during which eXpd8 is required to provide the Customer with the Subscription Services as specified in the relevant Quote;
22.19. “Update” means any update, update rollup, service pack, feature pack, critical update, security update, or hotfix that is used to improve or to fix a software product;
22.20. “Upgrade” means a software package that replaces an installed version of a product with a newer version of the same product, typically leaving existing customer data and preferences intact while replacing the existing software with the newer version;
22.21. “User” means the Customer and any of its employees, or of a person to whom the Customer has outsourced services, that has permission to accesses the Subscription Services as a named user and is not employed by EXpd8 and acting in the course of their employment;
22.22. “User Content” means any text, graphics, images, audio, video, software, data compilations and any other form of information capable of being stored in a computer that appears on, is uploaded to or forms part of a User Site or the Subscription Services Services and has been uploaded by a User;
22.23. “User Site” means a partition on the Platform created by eXpd8 for a User or Users accessing the Subscription Services which shall contain User Content and shall be hosted on the Platform.