Service Agreement

Background

  1. Hofy is a supplier of software, technology, equipment and related services to customers globally.
  2. Subject to the Terms and the payment of applicable Charges, the Customer wishes to access and use, and Hofy agrees to provide and perform, the Services.

Terms and Conditions

1. Definitions and interpretation

1.1 Defined terms and the rules of interpretation which apply to these Terms are set out in Schedule 1.

1.2 In these Terms, individually either entity may be called a "party" and together are called the "parties".

2. Contractual framework

2.1 These terms and conditions (the "Terms") form a legally binding agreement between Hofy and Customer under which the Customer shall be given access to the Hofy Platform and may purchase Services from Hofy via the Hofy Platform. The Terms take effect on the earlier of the date the Customer first accesses the Hofy Platform or the date a Service Order is signed by the Customer (the "Effective Date").

2.2 In exchange for Customer agreeing to the Terms and the Customer making payment of the applicable Charges, Hofy will perform the Services in accordance with these Terms.

2.3 To gain access to the Hofy Platform and be enabled to order Services, the Customer and Hofy shall agree a Service Order. The Service Order shall specify the level of access to the Hofy Platform, any other services to be provided by Hofy from the Effective Date, any applicable special terms and the applicable Charges.

2.4 Where the Customer wishes to purchase Services it shall request such Services via the Hofy Platform and agree to the applicable Charges. Each request for Services incorporates the Terms and any applicable Service Description (together forming an "Agreement" between the Customer and Hofy). An Agreement is only binding once the request for Services is accepted by Hofy.

2.5 In the Terms, each reference to Hofy shall be read as a reference to the applicable Hofy Affiliate which issues an invoice for the applicable Charges.

2.6 Any order forms or other correspondence that the parties may use for the fulfilment or ordering of any Services or otherwise for administering any part of the Agreement (other than a Service Order) will be for administrative convenience only and any terms and conditions included in such forms will have no effect and will not modify the Agreement (even if such forms state otherwise).

3. Duration

3.1 Duration of Terms. These Terms commence on the Effective Date and subject to earlier termination in accordance with these Terms, shall continue in force for twelve (12) months, after which they shall automatically renew for further 12 month periods unless either party gives at least thirty (30) days' written notice not to renew, such notice to take affect on the next anniversary of the Effective Date (the "Term").

3.2 Duration of Services. Each Service shall commence on the applicable Start Date. Subject to earlier termination in accordance with these Terms, each Service shall continue in force for the term indicated on the Hofy Platform (and if no such term is indicated, for thirty (30) days) (the "Service Term"). At the end of each Service Term, the Service shall automatically renew each month unless and until either party gives thirty (30) days) written notice (including via the Hofy Platform) that it is cancelling the Service.

4. Provision of Services

4.1 Service Descriptions. In respect of each Service, the applicable Service Description provides an overview of the service and any deliverables to be provided by Hofy.

4.2 Service warranties. Hofy warrants that:

  1. it shall use its reasonable endeavours to commence performance of each Service upon the specified Start Date or as agreed in writing with the Customer (including via the Hofy Platform);
  2. from the applicable Start Date, the Services shall materially conform to the applicable Service Description;
  3. it shall perform the Services using suitably qualified and experienced personnel; and
  4. it shall perform the Services in accordance with good industry practice.

4.3 Exclusion of warranties. Other than as expressly set out in the Agreement, all other warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law (including but not limited to, any warranty regarding fitness for purpose, quality, merchantability or non-infringement) are, to the fullest extent permitted by Applicable Law, excluded.

4.4 Updating the Terms. Hofy may, on written notice to the Customer, update these Terms. Such updated Terms shall apply to each new Service requested by the Customer from the effective date of such update, and the Customer shall be deemed to have agreed to such amended Terms upon requesting such new Service or continuing to access the Hofy Platform.

5. Customer obligations

5.1 The Customer shall:

  1. comply with all obligations and responsibilities allocated to it, or to its employees or personnel, as specified in the applicable Service Description(s); and
  2. provide all cooperation and assistance to Hofy as Hofy may reasonably request to enable Hofy to provide the Service in accordance with the Agreement.

5.2 To the extent that Hofy is unable to comply with any obligation, or is delayed in complying with any obligation, as a result of any act or omission by the Customer, Hofy shall be entitled to an extension of time equivalent to the delay caused by such act or omission.

6. Intellectual Property Rights

6.1 Ownership of the Services. Hofy (or its licensors) own and retain ownership of all Intellectual Property Rights in and to the Services (including the Hofy Platform, all Software and all modifications or improvements to such Software, used in or for the purposes of the Services and including any developments whether or not made pursuant to the provision of anyServices).  

6.2 Licence to use the Services. Subject to payment of the Charges and Customer's compliance with these Terms, Hofy grants the Customer a limited, non-exclusive, non-transferable, non-sub licensable licence

  1. for the duration of the Term to access and use the Hofy Platform, and
  2. for the duration of each applicable Service Term to access and use the Services, each for Customer's internal business operations.

6.3 Ownership of Customer Data. All Intellectual Property Rights in the Customer Data shall vest in the Customer upon their creation absolutely and Hofy shall obtain no rights, title or interest in the Customer Data except as set out in the Agreement.

6.4 Licence to Customer Data. The Customer hereby grants Hofy:

  1. a non-exclusive, non-transferable, non-sub licensable licence for the duration of the Agreement to access and use the Customer Data for the purpose of providing the Services; and
  2. a non-exclusive, non-transferable, non-sub licensable, irrevocable and perpetual licence to use anonymised Customer Data for the purposes of (i) improving and enhancing the Services; and (ii) other development, diagnostic and corrective purposes in connection with the Services (including any enhancements, new functionality and / or improvements whether or not the foregoing are made available to the Customer).

6.5 Licence restrictions. The Customer shall not, and shall not permit any third party to, except as may be allowed by any Applicable Law which is incapable of exclusion by agreement between the parties:

  1. attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Hofy Platform or the Software (as applicable) in any form or media or by any means;
  2. attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Hofy Platform or the Software;
  3. access all or any part of the Services in order to build a product or service which competes with the Services;
  4. license, sell, rent, lease, transfer, assign, distribute, display, disclose, otherwise commercially exploit, or otherwise make the Services available to any third party; or
  5. attempt to obtain, or assist third parties in obtaining, access to theServices.

6.6 The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and, in the event of any such unauthorised access or use, shall promptly notify Hofy.

7. Intellectual Property Rights indemnity

7.1 Subject to clause 7.2, Hofy shall indemnify the Customer and its respective officers, directors, employees, agents and contractors (the "Customer Connected Entities") against all costs awarded in final settlement of any claims by a third party against the Customer and the Customer Connected Entities that use by the Customer of the Services in accordance with the Agreement infringes a third party's Intellectual Property Rights.

7.2 The indemnity set out in clause 7.1 shall not apply to the extent any such claim arises as a result of (i)the provision of any materials provided or made available to Hofy in connection with the delivery of the Services or the Agreement by or on behalf of the Customer; (ii) the modification of the Hofy Platform, any Software or Service (or part thereof) by or on behalf of the Customer; or (iii) the use of any Services other than as permitted under the Agreement.

7.3 In the event of a claim pursuant to the indemnity provided under clause 7.1:

  1. the Customer shall as soon as reasonably practicable give to Hofy written notice of the claim and all details of the claim from time to time in its knowledge or possession;
  2. Hofy shall, at its own cost and expense, be entitled to control the defence of the claim and any related proceedings or settlement negotiations, provided that:

    i. Hofy shall conduct such litigation with due diligence and propriety and in such a way as not to bring the reputation or good name of the Customer into disrepute. In this regard, it will take into account and action any reasonable comments made by the Customer in relation to the conduct and/or settlement of the litigation;
    ii the Customer shall use all reasonable endeavours to mitigate any claims;
    iii. Hofy shall keep the Customer informed in writing at all times of material developments in the litigation or negotiations;
    iv. Hofy shall not make any admissions or otherwise take or fail to take any action which would be prejudicial to the Customer; and
    v. at the cost and expense of Hofy, the Customer shall take all reasonable steps to co-operate with Hofy in the defence of such claim, proceedings or negotiations.

8. Charges

8.1 The Customer shall pay the Charges applicable to each Service. Other than as expressly set out in the Agreement, all Charges are non-refundable.

8.2 Hofy shall be entitled to invoice the Customer at such intervals as specified in the Service Order or on the Hofy Platform.

8.3 Invoices shall be submitted to the Customer through electronic delivery to such email address as may, from time to time, be advised by the Customer in writing.

8.4 Hofy shall issue a single statement in respect of all Charges during the applicable charging period. However, the Customer agrees that Hofy's invoices under such statement may be issued by Hofy or a Hofy Affiliate, and any invoice issued by a Hofy Affiliate shall be valid as though issued by Hofy under these Terms.

8.5 The Customer shall pay all valid, undisputed and properly due invoices in accordance with the Payment Terms.

8.6 If the Customer receives an invoice which the Customer reasonably believes specifies a Charge which is not valid and properly due ("Disputed Charge"):

  1. the Customer may withhold payment of the Disputed Charge and shall notify Hofy within thirty (30) days after receipt of the invoice, of the nature of the dispute and the parties shall commence, within five (5) days after the receipt of the Customer's notice, to resolve the dispute;
  2. the Customer shall pay any part of the invoice which is not a DisputedCharge in accordance with the Payment Terms; and
  3. once the dispute has been resolved, Hofy shall issue the Customer with a valid and proper invoice for the amount due as part of the resolution, if any. The Customer shall pay the amount due as part of that resolution within thirty (30) days of the date of receipt of the foregoing invoice.

8.7 The Customer shall settle invoices submitted pursuant to this clause 8 by electronic transfer to such bank account(s) as Hofy may nominate from time to time, or as otherwise agreed between the parties.

8.8 The Customer shall pay value added tax (or equivalent sales/service tax) on the Charges at the rates prescribed by law at the time such Charges become due.

8.9 Withholding tax. Customer shall make all payments under the Agreement without withholding or deduction of, or in respect of, any tax unless required by law. If any such withholding or deduction is required, Customer shall, when making the payment to which the withholding or deduction relates, pay to Hofy such additional amount as will ensure that Hofy receives the same total amount that it would have received if no such withholding or deduction had been required.

8.10 Late payment interest. In the event the Customer does not pay an undisputed Charge in accordance with the Payment Terms, Hofy shall be entitled to:

  1. charge interest on such overdue amount from the due date for payment until the date of actual payment at the rate of 4% above the base rate of the Bank of England from time to time; and
  2. upon 30 days' prior written notice setting out the overdue Charge and indicating Hofy's intention to exercise its rights under this clause, suspend provision of the Services. Upon payment of all overdue Charges, Hofy shall promptly recommence provision of the Services.

9. Limitations of Liability

9.1 Neither party excludes or limits liability to the other party in respect of:

  1. death or personal injury caused by its negligence;
  2. any fraud or fraudulent misrepresentations;
  3. any liability arising out of or in connection with the Agreement which cannot be excluded or restricted by law; or
  4. the payment of the Charges due under the Agreement.

9.2 Subject to clause 9.1, neither party shall be liable for:

  1. any indirect, consequential or special loss; or
  2. any loss of profit, loss of business or contracts, lost production or operation time, loss of or corruption to data, loss of goodwill or anticipated savings.

however arising (whether from breach of contract, tort (including negligence), breach of statutory duty or otherwise), whether or not such loss was foreseeable or if the party which would otherwise be liable for such loss was advised of its possibility (and, for the purposes of this clause 9.2, the term "loss" includes a partial loss or reduction in value as well as a complete or total loss).

9.3 Subject to clauses 9.1 and 9.2, each party's liability (whether in contract, tort (including negligence), breach of statutory duty or otherwise) arising out of or in connection with:

  1. any breach of the Data Processing Schedule and / or the Data Protection Law shall be limited,  in aggregate in each 12 month period commencing on the Start Date, to three (3) times the Charges payable in respect of the relevant Service which gave rise the loss in the 12 months preceding the breach; and
  2. any other liability in respect of any Service shall be limited in aggregate in each 12 month period commencing on the Start Date, to the Charges payable in respect of such Service in the 12 months preceding the breach.

10. Termination

10.1 Separate termination required. Termination or expiry of the Terms shall not terminate any Agreements then in force. Termination of any one or more Agreements shall not terminate any other Agreements.

10.2 Termination for Cause. Without prejudice to any other rights or remedies it may have, either party may, by giving no less than thirty (30) days written notice to the other party, terminate an Agreement:

  1. if the other party commits a material breach in respect of the Agreement or Applicable Law which is either not capable of remedy or is not remedied within thirty (30) days of written notice requiring it to be remedied;
  2. if the other party suffers a Force Majeure Event for at least fourteen(14) days which prevents it from complying with its obligations under the Agreement and the parties cannot agree a reasonable workaround; or
  3. if the other party suffers or undergoes an Insolvency Event (other than where prevented from exercising such right in accordance with Applicable Law).

11. Consequences of Termination

11.1 Termination or expiry of the Terms shall limit the Customer's access to the Hofy Platform, including Customer's ability to submit further requests forServices. The parties shall work together to finalise and conclude anyAgreements entered prior to the date of termination of the Terms.

11.2 Termination of an Agreement (in whole or in part) however and whenever occurring shall not prejudice or affect any right of action or remedy which shall have accrued to any party up to and including the date of such termination.

11.3 The provisions of clauses 5, 7, 9, and 12 and any other clauses which by their nature continue shall survive termination or expiry of the Agreement, however and whenever occurring.

12. Confidentiality and Data Protection

12.1 Each party each will:

  1. keep all Confidential Information given by one party (the "Disclosing Party") to the other party (the "Recipient") or otherwise obtained by the Recipient confidential and will not (except as expressly permitted) disclose the Confidential Information to any third parties, make copies of material containing the Confidential Information or other wise use the Confidential Information;
  2. safeguard the Confidential Information and comply with any requirements reasonably specified by the Disclosing Party from time to time;
  3. implement security practices against any unauthorised copying, use, disclosure, access, damage or destruction of the Confidential Information; and
  4. immediately notify the Disclosing Party if the Recipient suspects or becomes aware of any unauthorised access, copying, use or disclosure of the Confidential Information in any form or if the Recipient is required by law to disclose any of the Disclosing Party's Confidential Information.

12.2 The Recipient may only use and copy the Disclosing Party's Confidential Information to the extent necessary:

  1. to comply with its obligations under the Agreement;
  2. to enable the Recipient to exercise its rights under the Agreement.

12.3 Nothing in the Agreement prohibits the use or disclosure of any Confidential Information by either party to the extent that the:

  1. information has been placed in the public domain otherwise than due to a default of the Recipient;
  2. disclosure is required by Applicable Law, but the party must use its best efforts to minimise any such disclosure;
  3. information has been independently developed by the party without reference to the Confidential Information of the other party; or
  4. other party has approved in writing the particular use or disclosure of the Confidential Information.

12.4 The parties acknowledge that each party will be entitled to equitable relief against the other (in addition to any other rights available under the Agreement or at law) if any party breaches any of its obligations under this clause 12.

12.5 The obligations with respect to Confidential Information disclosed under the Agreement will survive termination and expiry of the Agreement and will continue for as long as the information remains confidential. On termination or expiry of a Service, the Recipient shall at the direction of the Disclosing Party, return or securely destroy the Disclosing Party's Confidential Information.

12.6 Data Protection. The parties shall each comply with their respective obligations set out in the Data Processing Schedule.

13. Legal compliance

13.1 Each party warrants that:

  1. it is a company duly incorporated, validly existing and in good standing under the laws of England and Wales or its applicable country of jurisdiction and that each Agreement is executed by its duly authorised representatives;
  2. as at the Effective Date, it is not subject to any Insolvency Event.

13.2 Each party shall ensure that:

  1. the performance of its obligations under each Agreement shall comply with all Applicable Law; and
  2. it shall have, and shall continue to have for the full duration of each Service Term, full capacity and authority and all necessary governmental, administrative and regulatory authorisations, licences, permits and consents.

13.3 Anti-bribery and corruption. Each party shall:

  1. comply with all Applicable Laws, regulations, codes and sanctions relating to anti-bribery and anti-corruption including but not limited to the Bribery Act 2010 ("Relevant Requirements");
  2. not engage in any activity, practice or conduct which would constitute an offence under sections 1, 2 or 6 of the Bribery Act 2010 if the activity, practice or conduct was carried out in the UK;
  3. have and shall maintain in place throughout each Service Term its own policies and procedures, to ensure compliance with the Relevant Requirements, and will enforce them as they deem appropriate;
  4. promptly report to the other party any request or demand received by a party in connection with the performance of the Agreement to offer, promise or give any undue financial or other advantage of any kind; and
  5. promptly notify the other party if it or any person engaged by it is prosecuted, charged or convicted of any offence under the Relevant Requirements or any violation (suspected or actual) of any policies or procedures under this clause 13.3.

13.4 Each party represents and warrants that:

  1. it nor its officers or employees have been convicted of any offence under the Relevant Requirements; and
  2. as at the Effective Date and each Start Date, no charges relating to bribery or corruption have been brought against it or any person engaged by it.

13.5 For the purpose of this clause, the meaning of adequate procedures and whether a person is associated with another person shall be determined in accordance with the Bribery Act 2010 (and any guidance issued under section 9 of that Act).

13.6 Anti-slavery. Each party shall comply with all applicable laws, regulations, codes and sanctions relating to the prevention of slavery and human trafficking, including the Modern Slavery Act 2015.

14. General provisions

14.1 Force Majeure. Other than in respect of Customer's obligation to pay the Charges, neither party shall be in breach of the Agreement to extent it is unable to comply with its obligations due to a Force Majeure Event. The party suffering the Force Majeure Event shall take all reasonable steps to implement a workaround and shall keep the other party informed of the impact of the Force Majeure Event to the extent reasonably possible.

14.2 Severability. If any provision of the Agreement is held invalid, illegal or unenforceable for any reason by any court of competent jurisdiction, such provision shall be severed and the remainder of the provisions hereof shall continue in full force and effect as if the Agreement had been executed with the invalid, illegal or unenforceable provision eliminated. In the event of any such severance, the parties shall negotiate in good faith with a view to replacing the provisions so severed with legal and enforceable provisions that have similar economic and commercial effect to the provisions so severed.

14.3 Variations. No variation or alteration of the Agreement (including any Service Order) shall be effective unless in writing and signed by the parties.

14.4 Assignment. The Customer shall not, without Hofy's prior written consent, assign its rights under the Agreement.

14.5 Waiver. The failure of any party to insist upon strict performance of any provision of the Agreement or the failure of any party to exercise any right or remedy to which it is entitled hereunder, shall not constitute a waiver thereof and shall not cause a diminution of the obligations established by the Agreement. A waiver of any breach of contract shall not constitute a waiver of any subsequent breach of contract. No waiver of any of the provisions of the Agreement shall be effective unless it is expressly stated to be a waiver and communicated to the other party in writing. Except as expressly stated in the Agreement, no right or remedy conferred upon any party by the Agreement shall be exclusive of any other right or remedy howsoever arising and all such rights and remedies shall be cumulative.

14.6 Entire agreement. The Agreement constitutes the entire understanding between the parties relating to the subject matter of the Agreement and supersedes all prior representations, writings, negotiations or understandings (whether in either case oral or written) with respect hereto, except in respect of any fraudulent misrepresentation made by a party.

14.7 No representations. Except in respect of any fraudulent misrepresentation made by a party, the parties acknowledge that they have not relied on any representations, writings, negotiations or understandings, whether express or implied (other than as set out in the Agreement) in entering into the Agreement.

14.8 Third Party Beneficiaries. The Agreement does not create, and shall not be construed as creating, any right under the Contracts (Rights of Third Parties) Act 1999 which is enforceable by any person who is not party to it (except that any Hofy Affiliate may enforce any term of an Agreement to which it is a party).

14.9 Notices. Any notice or other communication made under the Agreement shall be provided through (i) email; (ii) first class prepaid letter; (iii) or delivered by hand, to the recipient's address as set out in the Service Order or in the Hofy Platform, or such address as may be updated from time to time. Such notice shall be deemed to have been given 48 hours after emailing or posting, or upon actual delivery if delivered by hand during the recipient's usual business hours.

14.10 Governing law. The Agreement shall be governed by and construed in accordance with English law.

14.11 Jurisdiction. The parties irrevocably submit to the exclusive jurisdiction of the English courts in respect of any dispute or disagreement arising out of or in connection with the Agreement.

Schedule 1 - Definitions and interpretation

1. Definitions

1.1 The following definitions shall apply in the Agreement:

Affiliate means in relation to a body corporate, any other entity which directly or indirectly controls, is controlled by, or is under direct or indirect common control with, that body corporate from time to time.

Agreement has the meaning given to it in clause 2.3.

Applicable Law means any of the following, to the extent that it applies to a party or any sub-contractor:

  1. any statute, regulation, by law, ordinance or subordinate legislation in force from time to time;
  2. any binding court order, judgement or decree; and
  3. any applicable industry code, guidelines, policy or standard.

Authorised Users means employees of the  Customer who are granted access to the Hofy Platform by the Customer.

Charges means the fees and charges payable by the Customer for access to and use of the Hofy Platform and the Service(s), as set out in the Service Order or on the Hofy Platform (as applicable).

Confidential Information means in relation to a party and/or a party's Affiliates, information that:

  1. is by its nature confidential; and/or
  2. is designated by that party as confidential; or
  3. the other party knows or ought to know is confidential; and
  4. includes, but is not limited to, trade secrets, know-how, inventions,  techniques, processes, software programs and other IT related information, documentation, schematics, procedures, contracts, customer bases, customer information, information regarding employees, policyholders or beneficiaries, financial information, budgets, sales, marketing, public relations, advertising and commerce plans, ideas, strategies, designs, projections, business plans, real estate plans, strategic expansion plans, products and product designs, sourcing information, potential product labelling and marking ideas, unpublished information relating to the Intellectual Property Rights of either party, and other non-public information relating to either party's business,

but in all cases excluding personal data.

Customer Connected  Entities has the meaning  given to it in clause 7.1.

Customer Data means all data, information and reports entered into or created through use of the  Services, and which may include personal data.

Data Protection Law has the meaning given to it in the Data Processing Schedule.

Data Processing Schedule means the document titled 'Data Processing Schedule' which is incorporated into each Agreement and which sets out the parties' respective rights and responsibilities with respect to processing personal data.

Effective Date has the meaning given to it in clause 2.1.

Equipment means the devices, furniture and other hardware and equipment listed on the Hofy Platform.

Force Majeure Event means an event outside a  party's reasonable control, including without limitation: acts of God, flood,  drought, earthquake or other natural disaster; terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed  conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations; nuclear, chemical or biological contamination or sonic boom;  pandemics or public health emergencies; any law or any action taken by a government or public authority, including without limitation imposing an export or import restriction, quota or prohibition, or failing to obtain a necessary licence or consent.

Hofy Platform means the online platform made available by Hofy as specified in the Service Order, through which additional Services may be requested and which is further described in Schedule 2.

Insolvency Event means any of the following:

  1. the party is unable to pay its debts within the meaning of Section 123 of the Insolvency Act  1986 as they fall due; or
  2. a resolution is passed for the administration of the party; or
  3. the presentation of a petition for winding up of the party, which petition is not dismissed within twenty eight (28) days; or
  4. an order is made or a resolution is passed for winding up of the party, save for the purpose of a solvent reconstruction or amalgamation with the resulting entity assuming all the obligations of the entity that has been wound up; or
  5. if a receiver, administrative receiver, administrator, examiner, liquidator, provisional liquidator or similar officer is appointed over all or any part of the assets or undertaking of the party and is not discharged with thirty (30) days of such appointment; or
  6. the party enters into or proposes a "Voluntary Arrangement" as defined within Part 1 of the Insolvency Act 1986 or convenes a meeting of its creditors or makes a composition with its creditors generally or an assignment for the benefit of its creditors or other similar arrangement;
  7. the party goes into liquidation (voluntary or otherwise) other than a genuine solvent reconstruction or amalgamation;
  8. the party ceases, or threatens to cease, to carry on business or trade;
  9. any third party enforces a security interest over all, or substantially all, of the assets of the party; or any event analogous to paragraphs (a) to (h) above which occurs in any other jurisdiction to which the party is subject.

Intellectual Property Rights means all intellectual property rights including, but not limited to, patents, trade secrets, trade marks, service marks, trade names, copyrights and other rights in works of authorship (including rights in computer software), rights in logos and get up, inventions, moral and artists' rights, design rights, trade or business names, domain names, know-how, database rights and semi-conductor topography rights and all intangible rights and privileges of a similar nature analogous or allied to any of the above in every case whether or not registered or unregistered and all rights or forms of protection of a similar nature in any country.

Payment Terms means the period of time from the date of issue of an invoice as set out in the Service Order or on the Hofy Platform (as applicable).

Relevant Requirements has the meaning given to it in clause 13.3(a).

Service(s) means the service(s) to be provided by Hofy to the Customer in accordance with the Agreement as specified in the Service Order or via the Hofy Platform and as described in the applicable Service Description.

Service Description means the description of the Service as provided on the Service Order or via the Hofy Platform or such other document as Hofy may provide from time to time.

Service Order means a mutually agreed description of Customer's access to the Hofy Platform, any  additional Services, the applicable Charges and related details in the form provided by Hofy.

Service Term has the meaning given to it in clause 3.2.

Software means the software owned by or licensed to Hofy by a third party and which may be used in the provision of the Services or to which the Customer may given access as part of the Services.

Start Date means the commencement date of each Service as specified in the Service Order or the Hofy Platform, as applicable.

Terms has the meaning given to it in clause 2.1.

2. Interpretation

1.1 Headings

Headings are included in the Agreement for ease of reference only and shall not affect the interpretation or construction of the Agreement.

1.2 References

  1. A reference to any statute, enactment, ordinance, order, regulation or other similar instrument shall be construed as a reference to the statute, enactment, ordinance, order, regulation or instrument as amended by any subsequent statute, enactment, order, regulation or instrument or as contained in any subsequent re-enactment thereof.
  2. References to “clauses” are references to the clauses of these Terms and references to “paragraphs” are references to attachments to, and paragraphs of, the schedules.
  3. A reference to person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) and a reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
  4. Unless the context otherwise requires, words in the singular shall include the plural and in the  plural shall include the singular.
  5. A reference to any gender shall include each and any other gender.

1.3 Conflicts

If  there is any inconsistency between the main body of the Agreement, the schedules and any document attached  to it or otherwise incorporated into the Agreement, the order of priority for the purposes of construction is as set out in the following descending order:

  • (i) the Data Processing Schedule;
  • (ii) the Service Order;
  • (iii) the Terms;
  • (iv) the schedules; and
  • (v) any other document incorporated by reference.   

Schedule 2 - Hofy platform

From the Effective Date and subject to payment of the relevant Charges, Hofy shall permit the Customer and its Authorised Users to access and use the Hofy Platform in accordance with the tier of access specified in the Service Order.

Overview of the functionality of the Hofy Platform

The Hofy Platform provides the functionality described on the Hofy Platform and / or as provided by Hofy at request, and depend on the tier of access selected. The tier of access is selected by the Customer and shall be enabled for all Authorised Users. Refer to the Service Order for further information.

Ergonomic self-assessment

The Hofy Platform allows Authorised Users to undertake an ergonomic self-assessment (the "Self-Assessment").

The Self-Assessment is not medical advice and should not be relied upon to diagnose, assess, manage or treat any medical issue, disease or injury. Hofy is not an authorised or regulated provider of medical services. Hofy provides no warranty whatsoever with respect to the Self-Assessment. The Self-Assessment is provided for informational purposes only.

Access to the Hofy Platform 

The Customer shall be given or enabled to create a username and password for the Authorised Users. The Customer shall, and shall ensure that each Authorised User shall, keep and maintain the confidentiality of all passwords. The Customer shall be responsible for all use of the Hofy Platform by its Authorised Users, whether or not such use is authorised.

The Customer shall not, except as may be permitted under the Agreement:

  1. allow or permit any Authorised User to share their username and password, or use anyone else's username and password; or
  2. use the Hofy Platform to provide services to third parties.

Hofy does not warrant that the Customer's use of the Hofy Platform will be uninterrupted or error-free or that the Services and/or the information obtained by the Customer through the Services or the Hofy Platform will meet the Customer's requirements. Hofy is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Hofy Platform may be subject to limitations, delays and other problems inherent in the use of such communications facilities.

Customer obligations

 The Customer shall:

  1. use all reasonable endeavours to prevent any unauthorised access to, or use of, the Hofy Platform and, in the event of any such unauthorised access or use, promptly notify Hofy;
  2. ensure that its network and systems comply with the relevant reasonable specifications provided by Hofy from time to time; and
  3. be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to Hofy's data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer's network connections or telecommunications links or caused by the internet.

Charges

The Charges for the Hofy Platform are per-Authorised User and specified on the Service Order or the Hofy Platform. The Charges for each Service ordered via the Hofy Platform (including the costs of Equipment rental) are additional and set out within the Hofy Platform.

Service description - Equipment Subscription Service

This Service Description applies to the provision of Equipment by Hofy to Customer's Authorised Users on a lease basis (the"Equipment Subscription Service"). When Customer enables Authorised Users to obtain Equipment from Hofy through the Hofy Platform, this Service Description forms part of and is incorporated into the Agreement between Hofy and the Customer.

Service overview

The Equipment Subscription Service is comprised of the following components, each as more fully detailed below or through the Hofy Platform:

  • Equipment ordering and delivery
  • In-transit loss and damage protection
  • Repair and replacement
  • Equipment redistribution
  • Courtesy Device loan
  • Equipment recovery
  • Optional configuration of Devices. 

Each item of Equipment constitutes a separate Agreement between Customer and Hofy and has its own Service Term (notwithstanding that various items of Equipment may be for the same Authorised User or contained within the same order via the Hofy Platform). A "Device" means a laptop, phone or tablet.

1. Equipment ordering process

1.1 The Customer shall set parameters for Equipment accessible to Authorised Users on the Hofy Platform.

1.2 An Authorised User shall submit their request for Equipment via the Hofy Platform. An Authorised User shall only be able to select Equipment which is within the parameters set by the Customer.

1.3 An Authorised User may be able to specify a preferred delivery date (the "Preferred Delivery Date").

1.4 Where agreed between Hofy and the Customer, an Authorised User may be able to request Equipment which has been customised, modified or altered, or not forming part of the standard Hofy offering ("Custom Equipment"). Where agreed between Hofy and the Customer, Hofy will configure Devices in accordance with instructions provided by the Customer and agreed with Hofy in advance (“Configured Devices”). Custom Equipment and Configured Devices shall be subject to additional Charges which shall be agreed via the Hofy Platform or otherwise in writing between Hofy and the Customer.

1.5 The Authorised User's request for Equipment shall not be deemed accepted by Hofy until confirmation is provided through the Hofy Platform (the "Confirmation Date"). A quote for Equipment is indicative only and not binding until the Confirmation Date. Hofy may reject a request for Equipment for any reason at its sole discretion.

1.6 Hofy may extend or discontinue the Equipment which it makes available on the Hofy Platform. Hofy shall use its reasonable endeavours to make available all Equipment which is listed on the Hofy Platform.

1.7 Hofy may ship any request for Equipment in one or more shipments. Once an item of Equipment has been shipped, it shall be marked on the Hofy Platform as 'Dispatched'.

1.8 Unless and until any Equipment is purchased by the Customer, all items of Equipment remains the property of Hofy. The Customer shall ensure that all Authorised Users take reasonable care of the Equipment and use it only in accordance with any instructions for use or in accordance with generally accepted usage for the type of Equipment. The Customer shall promptly notify Hofy of any damage to or fault with any Equipment and shall provide all necessary cooperation and assistance to identify the cause of the damage or fault. Hofy shall not be liable for any damage or fault other than as caused by Hofy.

2. Charges

2.1 The Hofy Platform shall specify the applicable Charges in respect of the Equipment (including any delivery, customisation or other applicable costs), and the period of the Service Term.

2.2 Hofy may adjust the Charges from time to time in its sole and absolute discretion. The current Charges shall be displayed in the Hofy Platform and shall apply to all requests for Equipment made after any adjustment, unless otherwise agreed with the Customer. Hofy shall not adjust the Charges for agreed Equipment after the Confirmation Date.

3. Deliveries of Equipment

3.1 Equipment will be delivered by Hofy as early as possible (generally within 10 working days of the Confirmation Date) unless an Authorised User indicates a Preferred Delivery Date, in which case Hofy will endeavour to deliver no later than the Preferred Delivery Date. The Customer may not reject any Equipment if it is delivered prior to the Preferred Delivery Date.

3.2 Express delivery. If the Preferred Delivery Date is earlier than 10 working days from the order day, Hofy may charge an additional delivery fee which shall be specified on the Hofy Platform.

3.3 Delivery notification. Hofy will keep the Authorised User and the Customer informed, through the Hofy Platform, of the status of Equipment deliveries.

3.4 First delivery attempt. Hofy shall provide a delivery notification via the Hofy Platform one day before the expected delivery date. If Hofy is unable to effect the delivery for any reason other than Hofy's default, the Equipment shall be deemed delivered on the first delivery attempt.

3.5 Subsequent delivery attempts. If Hofy is unable to deliver the Equipment after making 3 attempts, Hofy shall be entitled to treat the request for Equipment as cancelled by the Customer and section 4 below shall apply.  

3.6 Late delivery. A delivery of Equipment shall be deemed to be a “Late Delivery” if the first delivery attempt date is later than five (5) working days of the latter of (i) the Preferred Delivery Date and (ii) ten (10) working days from Confirmation. The Customer shall be entitled to a full refund for any Late Delivery, except in respect of Custom Equipment. A refund shall only be made in respect of Custom Equipment if the actual delivery date is sixty (60) days or longer from the Confirmation Date, unless a different date has been agreed between the parties.

3.7 Damage in transit. Customer shall notify Hofy about any damage in transit within 5 days of receipt of Equipment, and retain all original packaging and provide supporting evidence of in transit damage, including pictures as may be requested by Hofy. If Hofy accepts that damage was caused in transit, the terms of the Repair and Replacement Service apply (see below). If Hofy is not able to replace or repair the Equipment within 10 working days of receiving requested evidence, Customer shall be entitled to a free cancellation (other than in respect of Custom Equipment, in which case Hofy shall replace or repair the Custom Equipment within sixty (60) days).

4. Cancellations

4.1 An Authorised User may withdraw or cancel a request for Equipment at anytime before it has been confirmed by Hofy, by cancelling it on the Hofy Platform. Once a request for Equipment has been confirmed by Hofy, it can not be withdrawn other than as set out below.

5. Other than in respect of Custom Equipment, if Hofy is unable to dispatch the Equipment by the later of (i) 10 working days of the Confirmation Date, (ii) the preferred delivery date, and (iii) a date agreed between the parties, the Customer may cancel the request and receive a refund of the applicable Charges.

5.1 If Hofy has agreed to provide any Custom Equipment, the request shall be non-cancellable and non-refundable upon the Confirmation Date.

5.2 The Customer may cancel a Service Term for an item of Equipment by giving notice through the Hofy Platform. The “Cancellation Date” shall be the later of (i) the Customer’s preferred termination date, and (ii) 30 calendar days from the date the Customer notified Hofy of the termination. If the Customer elects to cancel a Service Term early, Hofy shall be entitled charge a fee which takes into account a discount applied to the Charges remaining to be paid (the "Termination Fee"). The Hofy Platform shall notify the Customer of the applicable Termination Fee upon Customer giving notice to terminate, and the Customer shall be given the option to proceed with the termination or continuing with the Service Term. Charges already paid are non-refundable.

6. Purchasing Equipment during the Service Term

6.1 The Customer may give notice to Hofy through the Hofy Platform that it wishes to purchase any item of Equipment during the relevant Service Term.

6.2 Where notice is given in accordance with paragraph 6.1 above, Hofy shall notify the Customer of the applicable Charges though the Hofy Platform and upon receipt of full payment, title in the Equipment shall pass to the Customer. Hofy gives no warranties whatsoever in respect of any Equipment upon the title transferring to the Customer.

7. At the end of a Service Term

7.1 Recovery of Equipment

  1. Hofy shall, at its cost and subject to this Service Description, recover the Equipment from the Customer. The Customer may also opt to redeploy the Equipment to another Authorised User and the applicable Charges shall be set out in the Hofy Platform.
  2. The Customer is responsible for ensuring that all Equipment is ready for recovery, including removal of personal belongings and deletion of data. Hofy accepts no liability for any belongings or data which are not removed prior to collection. Hofy may without notice and without liability destroy any data, files or belongings found on or within the Equipment.
  3. The Customer shall ensure that the Authorised User provides Hofy with reasonable access to the relevant premises to recover the Equipment.
  4. If the Equipment has been moved to a different address than the original delivery address, Hofy shall be entitled to charge the Customer any additional costs incurred in recovering the Equipment from the new location. If the Equipment has been moved to a different country, Hofy may refuse to recover the equipment and will charge the Customer the purchase Charge as set out in paragraph 6 above unless the Customer arranges the return of the Equipment to Hofy at the Customer's own expense within thirty (30) days from the end of the applicable Service Term.
  5. The Customer shall ensure that the Authorised User has kept the Equipment in good condition. Other than in respect of reasonable wear and tear, Hofy shall be entitled to charge for any damage to the Equipment.
  6. Hofy shall, through the Hofy Platform, notify the Customer of the recovery collection date two (2) days prior. If Hofy is unable to recover the Equipment after three (3) attempts, Hofy shall be entitled to deem the Equipment as sold to the Customer and recover the applicable Charge from the Customer, as well as its costs of attempting recovery.

7.2 Purchasing Equipment

  1. The Customer may prefer to purchase the Equipment on expiry of the Service Term. In such event, the provisions of paragraph 6 above shall apply.

8. Repair and replacement service

8.1 Hofy provides a repair and replacement service (the "Repair and Replacement Service") in respect of Equipment (other than Equipment which has been purchased by the Customer or Custom Equipment). The Repair and Replacement Service involves:

  1. Notice of fault. Customer shall ensure that any fault with Equipment is promptly notified to Hofy, and the Authorised User ceases use of the faulty Equipment unless otherwise agreed with Hofy.
  2. Virtual assessment. Hofy will assess service requests by phone, email or video call to establish the best course of action within one (1) business day following the Customer request date subject to Customer availability.
  3. Repair or replacement. Hofy will, at its sole discretion, either replace or arrange the repair of the faulty Equipment.
  4. Customer access. In the event of a repair, Hofy will at its sole discretion, repair at the Customer location or arrange recovery of the faulty Equipment. Hofy will initiate this process within one (1) business day of the virtual assessment. The Customer shall ensure the Authorised User provides Hofy with access to the Equipment in order to carry the repair including packaging the Equipment in the event of a recovery.
  5. Courtesy loan devices. If the fault relates to a Device, Hofy shall ship a similar Device to the Authorised User via express courier service at Hofy's cost at the Customer’s request within 1 business day of Hofy establishing that the Equipment requires a repair or replacement. Such additional Device shall be made available for as long as the original Device is being repaired. If Hofy later establishes that the fault was attributable to the Authorised User or Customer, Hofy shall be entitled to charge its standard Charges for provision of the loaned Device.  
  6. Repair time. If Hofy is not able to repair the faulty Equipment within 10 days from the collection date, Customer shall be entitled to request replacement Equipment at Hofy's expense, except where paragraph 8.1.5 applies in which case a replacement shall only be available after thirty (30) days.
  7. Limitations of coverage. The Repair and Replacement Service applies throughout the Service Term and covers faults which are covered by standard manufacturer warranties and excluding faults caused by Authorised Users or the Customer.

9. Theft, loss and accidental damage

9.1 Customer is responsible for the theft or loss of, or accidental damage to, any Equipment.  

9.2 The Customer is solely and wholly responsible for keeping its own data stored within Devices safe and secure, including but not limited to the encryption and back-up of any data stored locally in Devices.

10. General Equipment information

10.1 Hofy shall not be liable if any configuration which it implements as part of the Equipment pursuant to the Customer's instructions does not provide adequate cybersecurity or other protections for the Customer. If the configuration instructions or template would cause Hofy to breach its own data protection and / or information security policies, Hofy may refuse to undertake the configuration.

10.2 If Hofy provides any advice to the Customer or any Authorised User about the Equipment, any configuration or related issues, such advice shall not be binding and shall be deemed to be information only. Customer agrees that it shall at all times undertake its own enquiries as to the suitability of Equipment and not rely upon any information made available by Hofy as the sole source of its decision making with respect to Equipment.

10.3 Hofy warrants that upon delivery, the Equipment shall be free from defects and new.

10.4 Hofy shall use reasonable endeavours to ensure that descriptions of the Equipment provided on the Hofy Platform are accurate. However, the Customer agrees that Hofy is not the manufacturer of the Equipment and the Customer shall make its own enquiries to determine if the Equipment is suitable for the Customer's needs.

Service description - Mobile Device Management (MDM) service

This Service Description applies to the provision of a mobile device management service ("MDM Service") by Hofy to Customer. If Customer selects the MDM Service, this Service Description forms part of and is incorporated into the Agreement between Hofy and the Customer.

Service overview

The MDM Service applies to Devices, which include phones, laptops and tablets.

1. Customer's own management solution

If Customer provides Hofy with its preferred client, Hofy shall implement such client on each Device as agreed via the Hofy Platform. Hofy and the Customer shall agree the level of access to the Customer's client on a case-by-case basis.

Customer shall ensure that it has all necessary rights, including all applicable licences, for Hofy's provision of the MDM Service.

2. Hofy's third party client

If Customer does not provide Hofy with its preferred client, Hofy shall implement its third-party solution management client. Customer agrees to comply with the third-party terms found at https://www.miradore.com/legal/#terms-of-service or such other address as Hofy may nominate from time to time.

3. No access to data.

The Customer agrees that Hofy's provision of the MDM Service shall not permit Hofy to access any data (including personal data) or confidential information of the Customer. The Customer shall take all steps necessary to ensure that Hofy is not able to access such data or information.

4. No liability

Hofy shall not be liable if any client, solution or configuration which it implements as part of the MDM Service does not provide adequate cybersecurity or other protections for the Customer. If the implementation of the Customer client would cause Hofy to breach its own data protection and /or information security policies, Hofy may refuse to provide the MDM Service.

Charges

The Charges for the MDM Service shall be specified on the Hofy Platform.

Service description - Remote IT Service Desk

This Service Description applies to the provision of a Remote IT Service Desk by Hofy. If the Customer requests the provision of the Remote IT Service Desk, this Service Description forms part of and is incorporated into the Agreement between Hofy and the Customer.

Service overview

The Remote IT Service Desk includes the following functionality, as may be further described on the Hofy Platform:

  • IT support to Authorised Users by phone and chat; and
  • SLAs as set out below:

Priority

Definition

Response Time

Completion Time

P1

An issue impacting multiple users causing significant business impact.

Within 1 hour

Within 4 hour

P2

An issue impacting a single user with no known workaround.

Within 2 hour

Within 1 working day

P3

An issue that impacts a single user with a known workaround and no business impact.

Within 4 hour

Within 2 working days

P4

All other general IT requests.

Within 24 hour

Within 5 working days

Charges

The Charges applicable for Customer's access to and use of the Remote IT Service Desk are as set out on the Hofy Platform.

Customer obligations

In order to receive the benefit of the IT Service Desk, the Customer shall ensure that Authorised Users permit Hofy to access their relevant devices remotely (including by way of screen sharing or other technological methods employed by Hofy).

Service description - Non-Hofy Device Management

This Service Description applies to the provision of device management services for devices which are not provided by Hofy (the"Non-Hofy Device Management Service"). 'Devices' include laptops, tablets and phones.

If the Customer requests the provision of the Non-Hofy Device Management Service through the Hofy Platform, this Service Description applies and forms part of and is incorporated into the Agreement between Hofy and the Customer.

Service overview

Hofy shall assist the Customer to manage its Devices. Device management shall include:

  • Warranty management
  • Collection, repair and manufacturer's warranty management
  • Loan of courtesy Device where the original Device is less than three years old
  • Recovery and recycling,

in each case as may be further described on the Hofy Platform.

Charges

The Charges applicable for Customer's access to and use of the Non-Hofy Device Management Service are as set out on the Hofy Platform.


Data Processing Schedule

Unless otherwise defined in this Schedule, all Capitalised terms used in this Schedule shall have the meanings ascribed to them in the agreement.

1. Definitions

1.1 In this Schedule the following words and expressions shall have the following meanings:

  1. "Adequate Country" means a country or territory recognised under Data Protection Law as providing adequate protection for Personal Data
  2. "Affiliate" means, an entity that directly or indirectly, controls, is controlled by, or is under common control with a party (but only for so long as such Control exists);
  3. "Agreement" means the agreement to which this Schedule is attached or any other agreement in effect between Supplier and Customer involving the processing of Personal data by Supplier, including any applicable Orders.
  4. "Data Protection Law" means to the extent applicable to the agreement i) Regulation 2016/679 of the European Parliament and of the Council (EU GDPR) (ii) in respect of the United Kingdom (UK) the UK Data Protection Act 2018, the Privacy and Electronic Communications (EC Directive) Regulations 2003 and the Data Protection, Privacy and Electronic Communications (Amendment etc) (EU Exit) Regulations 2019, and 2020 (UK GDPR) and iii) all other laws and regulations applicable to the processing of Personal Data under the Agreement.
  5. "Data Subject Request" means a request or objection from or on behalf of a data subject relating to that person's Personal Data;
  6. "SCCs" means the Commission Implementing Decision (EU) 2021/914 of 4 June 2021 on standard contractual clauses for the transfer of personal data to third countries pursuant to the EU GDPR (the approved version of which is available at http://data.europa.eu/eli/dec_impl/2021/914/oj , and the corresponding Annexes which form part of this Schedule.
  7. "Personal Data" means all data which is defined as 'personal data' under the GDPR and or applicable Data Protection Law and which is accessed, stored or otherwise processed by Supplier as a data processor as part of its provision of the Services to Customer and to which Data Protection Law apply from time to time;
  8. "controller", "data subject", "processor" and "supervisory authority" shall have the meanings ascribed to them in the Data Protection Law;
  9. "UK Approved Addendum" means the template Addendum B.1.0 issued by the UK Information Commissioner's Office and laid before Parliament in accordance with s119A of the Data Protection Act 2018 on 2 February 2022, as it is revised under Section 18 of the UK Mandatory Clauses;
  10. "UK Mandatory Clauses" means the Mandatory Clauses of the UK Approved Addendum as updated from time to time and replaced by any final version published by the Information Commissioner's Office;
  11. "controller", "data subject", "processor" and "supervisory authority" shall have the meanings ascribed to them in the Data Protection Law;

2. Status of the parties

2.1 The type of Personal Data processed pursuant to this Schedule and the subject matter, duration, nature and purpose of the processing, and the categories of data subjects, are as described in Annex 1.

2.2 Where appropriate, in this Schedule each reference to Customer shall be read as a reference to Partner and each reference to Supplier shall be read as a reference to the applicable Hofy Affiliate which executes the Agreement, each as may be defined in the applicable Agreement.

2.3 Each party warrants in relation to Personal Data that it will comply (and will procure that any of its personnel comply and use commercially reasonable efforts to procure that its sub-processors comply), with applicable Data Protection Law. As between the parties, Customer shall have sole responsibility for the accuracy, quality, and legality of Personal Data and the means by which Customer acquired Personal Data.

2.4 In respect of the parties' rights and obligations, this Schedule applies to Personal Data, in respect of which Supplier is a processor to Customer, who can act either as a controller or a processor of Personal Data.

3. Supplier obligations

3.1 With respect to all Personal Data, Supplier shall:

  1. only process Personal Data in order to provide the Services and shall act only in accordance with: (i) this Schedule, and (ii) Customer's written instructions;
  2. in the unlikely event that applicable law requires Supplier to process Personal Data other than pursuant to the Customer's instruction, Supplier will notify the Customer (unless prohibited from so doing by applicable law);
  3. implement appropriate technical and organisational measures to ensure a level of security appropriate to the risks that are presented by the processing of Personal Data against accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to Personal Data. Such measures include, without limitation, the security measures set out in Annex 2;
  4. take reasonable steps to ensure that only authorised personnel have access to such Personal Data and that any persons whom it authorises to have access to the Personal Data are under obligations of confidentiality;
  5. without undue delay upon becoming aware, notify Customer of any incident of unauthorised or accidental disclosure of or access to any Personal Data by any of its staff, sub-processors, or any other third party (a "Security Breach");
  6. promptly provide Customer with reasonable cooperation and assistance in respect of a Security Breach and all reasonable information in Supplier's possession concerning the Security Breach insofar as it affects Customer.
  7. promptly notify Customer if it receives a Data Subject Request and upon the Customer's request, provide reasonable assistance to facilitate a Data Subject Request.
  8. other than to the extent required to comply with applicable law, as soon as reasonably practicable following, and in any event within sixty (60) days of, termination or expiry of the Agreement or completion of the Services, Supplier will delete or return to the Customer (at Customer's direction) all Personal Data (including copies thereof) for which Supplier is the Processor and that is processed pursuant to this Schedule.
  9. where required by applicable Data Protection Law, provide such assistance as the Customer reasonably requests (taking into account the nature of processing and the information available to Supplier) to the Customer in relation to the Customer's obligations under applicable Data Protection Law with respect to:

    i. data protection impact assessments under Data Protection Laws
    ii. notifications to the supervisory authority under Data Protection Laws and/or communications to data subjects by the Customer in response to any Security Breach; and
    iii. Customer's compliance with its obligations with respect to the security of processing;

Supplier reserves the right to recover from the Customer any costs incurred by Supplier in connection providing the assistance in clause 3.1(j).

4. Sub-processing

4.1 Customer grants a general authorisation to Supplier to appoint its Affiliates or third parties as sub-processors to support the performance of the Services, including data centre operators, cloud-based software providers, and other outsourced support and service providers. Supplier will maintain a list of sub-processors), and will provide Customer with fifteen (15) days prior notice in writing before adding new sub-processors to the list prior to Supplier using new sub-processors.

  1. If Customer has a reasonable objection to any new sub-processor, it shall notify Supplier promptly of such objections in writing and the parties will seek to resolve the matter in good faith.
  2. If Supplier is reasonably able to provide the Supplier Services to Customer in accordance with the Agreement without using the sub-processor and decides in its discretion to do so, then the Customer will have no further rights under this clause 4.1 in respect of the proposed use of the sub-processor.
  3. If Supplier requires use of the sub-processor in its discretion and is unable to satisfy the Customer as to the suitability of the sub-processor or the documentation and protections in place between Supplier and the sub-processor within thirty (30) days from the Customer's notification of objections, the Customer may, within thirty (30) days of the end of the thirty (30) day period referred to above, terminate the Agreement by providing written notice toSupplier having effect thirty (30) days after receipt by Supplier.
  4. If the Customer does not provide a timely objection to any new sub-processor in accordance with this clause 4.1, Customer will be deemed to have consented to the sub-processor and waived its right to object.

4.2 Supplier will ensure that any sub-processor it engages to provide an aspect of the Supplier Services on its behalf in connection with this Schedule does so only on the basis of a written contract which imposes on such sub-processor terms substantially no less protective of Personal Data than those imposed on Supplier in this Schedule, subject to any standard data processing terms, addendum or equivalent required by international Sub processors which Supplier has no reasonable opportunity to negotiate (the "Relevant Terms"). Supplier shall seek to procure the performance by such sub-processor of the Relevant Terms and shall be liable to Customer for any breach by such person of any of the Relevant Terms.

5. Audit and records

5.1 Subject to clause 5.2, Supplier shall in accordance with applicable Data Protection Law, make available to the Customer such information in Supplier's possession or control as the Customer may reasonably request or submit to an audit with a view to demonstrating Supplier's compliance with the obligations of processors under Data Protection Law and this Schedule in relation to its processing of Personal Data. Customer will not exercise its audit rights more than once in any twelve (12) calendar month period except i) if and when required by a competent data protection supervisory authority or ii) Customer believes a further audit is necessary due to a Security breach.

5.2 Customer will bear the fees of any auditor and any expenses incurred by Supplier in complying with this clause 5.

5.1 With regard to Clause 5.1, Supplier shall immediately inform Customer if, in its opinion an instruction infringes the GDPR.

6. Data transfers

6.1 Subject to clauses 6.2 and 6.5 To the extent that processing relates to a transfer of Personal Data outside of the UK and EEA by Supplier to Customer (except if to an applicable Adequate Country) that either Module 3 or Module 4 of the SCCs, where applicable, along with the corresponding appendix and annexes will apply in respect of that processing.

6.2 Subject to any provisions to the contrary of the UK Approved Addendum in respect of transfers to which UK Data Protection Laws apply, the following terms shall apply.

  1. For the purpose of Clause 17 of the SCCs the SCCs shall be governed by the law of a country allowing for third-party beneficiary rights. The parties agree that this shall be the law of the Netherlands.
  2. The docking clause 7 shall be included and the optional wording in clause 11 of the SCCs relating to an independent dispute resolution body shall not be included.
  3. For the purpose of Module 3, Option 2 of Clause 9 (general authorisation of sub-processors) shall apply in respect of Customer's authorisation of the use of sub processors and Supplier shall notify Customer of any additional or replacement of sub processors in accordance with 4.1 of this Schedule.
  4. Any dispute arising from the SCCs shall be resolved by the courts of the Netherlands in accordance with clause 18of the SCCs.

6.3 Subject to clauses 6.2 and 6.5 and without prejudice to clause 4.2, if processing involves a transfer of Personal data outside the UK and EEA (except if to an applicable Adequate Country) by Supplier to a sub processor, Supplier shall ensure that Module 3 of the SCCs are at all relevant times incorporated into the terms between Supplier and the Sub processor.

6.4 To the extent any transfers by Supplier to Customer occur in circumstances where UK Data Protection Laws apply then the parties agree that the UK Approved Addendum shall apply in respect of that transfer and that for the purpose of the UK Approved Addendum:

  1. the information required for Table 1 is contained in Annex 1 of this Schedule
  2. for the purposes of Table 2 the versions of the SCCs to which the UK Approved Addendum applies are to the extent applicable, Module 3 or Module 4 subject to clause 6.2 (b);
  3. for the purposes of Table 3 the list of parties and description of the transfer a reset out in Annex 1 of this Schedule, Suppliers technical and organisational measures are set out in Annex II of this Schedule,
  4. for the purposes of Table 4, neither party shall be entitled to terminate the Approved UK Addendum in accordance with clause 19 of the UK Mandatory Clauses.

6.5 Clauses 6.1 and 6.3 shall not apply to a transfer of personal data where the effect of the transfer together with any other practicable compliance steps is to allow the transfer to take place without a breach of applicable Data Protection Law.

7. General

7.1 This Schedule is without prejudice to the rights and obligations of the parties under the Agreement which shall continue to have full force and effect. In the event of any conflict between the terms of this Schedule and the terms of the Agreement, the terms of this Schedule shall prevail so far as the subject matter concerns the processing of Personal Data.

7.2 The total liability of each of the Customer and Supplier (including its licensors and sub-processors), arising out of or related to this Schedule, whether in contract, tort, or other theory of liability, shall not, when taken together in the aggregate, exceed the limitation of liability set forth in the Agreement.

7.3 Other than in respect of any accrued liabilities of either party and the provisions of clauses 1, 2 and this clause 7, this Schedule shall terminate automatically on the expiry or termination for whatever reason of the Agreement.