1. Definitions
The following words shall have these meanings ascribed to them respectively as follows:
1.1 “Agreement” means these Terms and Conditions and any amendments thereto pursuant to Section 2.3.
1.2 “Company” means GDPR Limited, company registration no. 598036 whose registered offices are at 108 Foxrock Avenue, Dublin, D18 T9H3, Ireland.
1.3 “Confidential Information” shall include any and all technical and non-technical information of each party, including but not limited to patent and patent applications, trade secrets, proprietary information–mask works, ideas, samples, media, techniques, sketches, drawings, works of authorship, models, inventions, know-how, processes, apparatuses, equipment, algorithms, software programs, software source documents, and formulae related to the current, future, and proposed products and services of each of the parties, and including, without limitation, their respective information concerning research, experimental work, development, design details and specifications, engineering, financial information, procurement requirements, purchasing, manufacturing, Client lists, investors, employees, business and contractual relationships, business forecasts, sales and merchandising, marketing plans and any other information of a similar nature.
1.4 “Customer” means the Purchaser of any of the Platform Services.
1.5 “Letter of Engagement” includes a purchase order, website sign-in confirmation or any other document or communication, including but not limited to electronic documents and emails setting out services or products to be provided by the Company to a Purchaser.
1.6 “Purchaser” means the legal entity (i.e. a company of any type, or legally constituted public or private body or financial institution or any other entity recognised by law as a legal person) or a business person or persons whether a partnership or not, specified in any Order, Services Agreement or subscription service, which references these Terms.
1.7 “Order Agreement” means the document or Letter of Engagement in which this Agreement is referenced and or to which it is pursuant, and which specifies the Professional Services and/or related Support, Software, or other service being provided to the Purchaser, as applicable.
1.8 “Platform Services” means any of the subscription services provided on the www.propolicies.com website and as therein described.
1.9 “Professional Services” means those services, including but not limited to consultancy, GDPR compliance, remediation, implementation and training, supplied under this Agreement and/or a Letter of Engagement.
1.10 “Secure Outsourced Services” means one or more of the following services, (i) document & content Management, (ii) document processing, (iii) Data Protection Audit services, (iv) Data Protection Impact Assessments being performed on your behalf with the use of third-party software.
1.11 “Software” means any third-party software products, modules and/or devices that are licensed under this Agreement (or provided as part of a services engagement pursuant to this Agreement), including, but not limited to, any related application programming interfaces, associated media, printed materials, online or electronic documentation; and any updates and maintenance releases thereto provided by the Data Protection Group.
1.12 “Support” means the provision of consultation and advice by qualified personnel in accordance with the terms of any Support Agreement, Services Agreement or Platform Services subscription pursuant to this Agreement.
1.13 “Training” means the provision of training classes either in the Purchaser’s premises or another location and or on-the-job training as specified in the relevant Order, Services Agreement or Platform Service pursuant to an Enterprise subscription as described in a Platform Services subscription.
1.14 Where a word or phrase has a defined meaning under the General Data Protection Regulation it shall have the same meaning in this Agreement.
2. General
2.1 This Agreement shall apply to the Purchaser’s purchase of Services and related Support, Software, training and/or or other services from the Company. In the event of a conflict between this Agreement and any licence Agreement supplied with the Software, then this Agreement shall take precedence as between you and us, and shall apply to the exclusion of all oral representations and all other terms and conditions printed on any purchase order or other document(s) prepared by Purchaser irrespective of their date. The parties agree that they have not relied upon any other representations, terms or conditions in entering into this Agreement.
2.2 This Agreement states the entire Agreement between the parties on this subject and supersedes all prior negotiations, understandings and Agreements between the parties concerning the subject matter.
2.3 No amendment or modification of this Agreement shall be made except in writing (to include electronic documentation) and signed by an authorised signatory of each party.
3. Pricing, Invoicing and Payment
3.1 All prices are exclusive of goods and Value Added Tax (unless stated) and any other applicable taxes or duty. Charges shall be made for any taxes, duties or levies which the Company is required by law to collect, and any withholding tax, will be for the Purchaser’s account unless and until such time that the Company is able to reclaim such tax.
3.2 Prices quoted are in Euro unless otherwise agreed and stated within any Agreement.
3.3 Company will upon signing of any Order Agreement raise an invoice for all services to be provided by the Company in accordance with the Order Agreement or Services Agreement. Where a Customer purchases a subscription to any Platform Services, payment shall be made for the requested service in accordance with the price specified for the time being on the website as therein required for that subscription.
3.4 Professional Services, Secure Outsourced Services, or other services shall be charged at the rate(s) specified in an Order or Services Agreement and will be invoiced as delivered, or as stated within any Order or Services Agreement between the Company and the Purchaser as part of this Agreement.
3.5 Payment of all invoices shall be due within 30 days of date of invoice. If payment is delayed for more than 30 days and the Purchaser has not raised a reasonable dispute in writing regarding the amounts invoiced within 14 days of the date of invoice, Purchaser agrees to pay interest at a rate of 5% per annum over the rate then applicable to Court judgements, from the date payment was first due until payment is received in full.
3.6 Additionally, if applicable, the Company at its sole option may request the Purchaser to immediately return any Equipment and/or Software in good and complete condition.
3.7 The dates for delivery of equipment and/or the Software and/or any Services are approximate only and time is not of the essence.
3.8 The Company will not be liable in any circumstances, howsoever arising, for the consequences of any delay in failure to deliver any or any part of the Services or any Support or any Software.
3.9 Purchaser acknowledges that any software or Platform Service provided under any part of this Agreement is licensed not sold and that all copyrights, patents, trade secrets and other rights, title and interest therein in whole or in part and all copies thereof, are the sole property of the Company or its related entities or third party suppliers. Purchaser shall gain no right, title or interest in any Software by virtue of this Agreement other than the non-exclusive right of use granted herein. Without limiting the foregoing, Purchaser specifically acknowledges Company’s or third-party’s suppliers, as the case may be, exclusive rights to ownership in any copy, modification, translation, enhancement, adaptation, or derivation of any Software.
4. Licences and Use
4.1 Subject to the terms and conditions contained in this Agreement and Purchaser’s payment of the applicable Software licence fees under this Agreement, the Company hereby grants to the Purchaser a non-exclusive, non-transferable, licence (unless otherwise specified in an Order Agreement, or subscription service), without rights to sublicense, to use any Software for the purpose as set forth in the applicable documentation or on the website specified in Section 5.1, and according to the licence restrictions set forth in the related Order Agreement or subscription service in accordance with this Clause.
4.2 Purchaser acknowledges and agrees that any Software licensed under this Agreement shall only be used by the Purchaser.
4.3 Purchaser will not copy, translate, modify, adapt, decompile, disassemble or reverse engineer any Software.
4.4 Software Licence means the Software provided thereby may only be used for the internal day to day business purposes of the Purchaser and the Purchaser shall not permit access to any Software, nor use or benefit of any Software, by any Purchaser Group Company, affiliated legal entity or third party, save as expressly allowed in the Order or Services Agreement.
5. Platform Services
5.1 The Company will enable each Customer to sign-up for the requested subscription on the www.propolicies.com website and will provide to the Customer login details for their Account.
5.2 The Company hereby grants to the Customer for the duration of their subscription a worldwide, non-exclusive licence to use the Platform Services for the purpose of generating polices for the Customer.
5.3 It is a condition of the license to use any document that the Customer preserve our copyright notice at least once in on every document.
5.4 The Platform Services may only be used by the named user identified by the Customer on signing-up.
5.5 The Company shall provide the Support Services appropriate to the subscription to the Customer for the duration of the subscription only.
5.6 ProPolicies.com shall make available to the Customer contact details in accordance with the provisions of the subscription.
5.7 The Customer shall use all reasonable efforts, including adequate security measures relating to account access, to ensure that no unauthorised person may gain access to the Platform Services using their log-in details.
5.8 The Customer may not use the Platform Services in any way that does or may cause interruption, impairment or damage to the Platform Services in any way.
5.9 The Customer shall neither use nor allow the Platform Services to be used in any way that is unlawful, illegal or fraudulent, or in connection with any such activity.
5.10 The Customer may not sub-license their right to access and use the Platform Services.
5.11 The Customer may not use the Platform Services to provide services to third parties.
5.12 The Customer warrants to the Company that it has the legal right and authority to enter into this Agreement and to perform its obligations under the Agreement and that it will not breach any laws, statutes or regulations applicable to it under this Agreement.
5.13 Inability to contact the website due to downtime caused directly or indirectly by scheduled maintenance, a fault or failure of the internet or any public telecommunications network, a fault or failure of the Customer’s computer systems or networks, a Force Majeure event (as described in Section 17), or any breach by the Customer of this Agreement shall not be considered a breach of this Agreement by the Company.
5.14 The Company may suspend the provision of any Service including the Platform Service to the Purchaser if any amount due to be paid by the Customer to the Company under this Agreement is overdue, unpaid or if any payment made is reversed.
5.15 In so far as the Customer discloses any personal data to the Company via the www.propolicies.com website under or in connection with the Platform Services, the Customer shall be the data controller and hereby warrants to the Company (who shall be the data processor), that it has the legal right to disclose all personal data and Confidential Information that it discloses to the Company under or in connection with this Agreement, and that the processing of that personal data by the Company for the purposes of and in accordance with this Agreement will not breach any applicable data protection legislation.
5.16 The Customer shall provide the personal data to the Company together with such other information as the Company may reasonably require in order for the Company to provide the Services.
5.17 Any instructions given by the Customer to the Company in respect of the personal data shall be in accordance with any applicable data protection legislation.
5.18 The Company will process the personal data in compliance with any applicable data protection legislation.
5.19 The Company will process the personal data strictly in accordance with the data controller’s instructions for the processing of that personal data for the purpose of enabling the Customer to complete the policies required by them.
5.20 The Company will treat the personal data, and any other information provided by the data controller as confidential.
5.21 The Company will ensure that access to the personal data is limited to employees or other contractors who require access to it for the purpose of the Company carrying out the permitted processing and/or complying with its obligations under this Agreement.
5.22 The Company will ensure that all such employees or other contractors are aware of the requirements of the law relating to data protection, and of their duty of confidentiality and care in the handling of the personal data under contract.
5.23 The Company will not sub-contract any of the processing without the informed knowledge of the data controller.
5.24 The Company will employ industry appropriate operational and technological processes and procedures regarding unauthorised use or access, loss, destruction, theft or disclosure of personal data.
5.25 The Company will notify the data controller of any incident that may impact the processing of the personal data held by it pursuant to this agreement within one working day of discovering or becoming aware of any such incident. The Company will co-operate with the data controller in implementing any required corrective action agreed between the parties.
5.26 The Company agrees to assist the data controller promptly with all subject access requests which may be received from data subjects to whom the personal data refers.
5.27 The Customer shall comply with the Acceptable Use clause below and shall ensure that all persons using the Services with the authority of the Customer or by means of an Account comply with them.
6. Acceptable Use
6.1 By using the Services, you agree to the rules set out in this section relating to the transmission, storage and processing of content by you, or by any person on your behalf using the Services. You must ensure that all content complies with the provisions of this Policy.
6.2 You must be at least 18 years of age to use the Services; and by using the Services or by agreeing to this Policy, you warrant and represent to us that you are at least 18 years of age.
6.3 The Purchaser must ensure that all content complies with the provisions of this Policy.
6.4 Content must not be illegal or unlawful, must not infringe any person’s legal rights, and must not be capable of giving rise to legal action against any person (in each case in any jurisdiction and under any applicable law).
6.5 Content must not be libellous, maliciously false, obscene or indecent, or constitute a breach of racial or religious hatred or discrimination legislation.
6.6 Content must not infringe any copyright, trade mark right, design right, right in passing off, or any other intellectual property or moral right or infringe any right of confidence, right of privacy or right under data protection legislation;
6.7 Content must not constitute negligent advice or contain any negligent statement; or constitute an incitement to commit a crime, instructions for the commission of a crime or the promotion of criminal activity, or be in contempt of any court, or in breach of any court order;
6.8 Content must not be untrue, false, inaccurate or misleading.
6.9 You must not link to any material using or by means of the Services that would, if it were made available through the Services, breach any provision of this Policy.
7. Warranty
7.1 The Company warrants that in accordance with this Agreement:
(i) The all services and or content to be provide under any Service Agreement or via the Platform Services shall be provided using reasonable care and skill;
(ii) It has title to the Software and/or has the right to grant the Software licence(s) purchased by the Purchaser;
(iii) That any Software supplied materially conforms to its standard specification.
7.2 The Company will make every effort to ensure that any service or content provided by the Company pursuant to this agreement is up to date and compliant with applicable legislative and regulatory requirements. However the Company makes no representation that services or content as provided are applicable or appropriate in any particular jurisdiction.
8. Remedies
8.1 The Purchaser’s sole and exclusive remedy in the event of breach of the above warranty is the correction of any failure reasonably determined by the Company as a failure by the Company to comply with such warranty provisions. Correction may comprise, at the Company’s sole discretion, re-performance of the services or portion thereof, replacing, repairing or adjusting the Equipment and/or Software without charge to the Purchaser or refunding any relevant portion of paid fees. All remedies for any breach of the warranty provisions are available only if such breach is reported to Company in writing within 30 days of the delivery of the software or within 30 days of completion of the defective services, whichever is earliest.
8.2 The Purchaser acknowledges that the Company does not provide legal services or legal advice and that it is the Purchaser’s obligation to at all times ensure that they comply with all legal, regulatory and statutory laws, regulations and guidelines as they apply to their particular business, practice, sector or industry requirements. The Purchaser agrees that they will not make any claim of any nature whatsoever against the Company in the event that they are deemed non-compliant notwithstanding having used any of the Company’s services under this Agreement.
9. LIMITS OF LIABILITY
9.1 The Company’s maximum aggregate liability for any breach of its contractual obligations or breach of duty of any nature or any tortious act or omission howsoever arising shall be limited to the combined total amount paid by Purchaser for Services under the Services Agreement or annual subscription of a Platform Service to which such claim relates.
9.2 In no event shall the Company have any liability for: loss of profits, goodwill, business interruption, delay or failure in provision of services, or any type of special, indirect, consequential or incidental loss or damages (including loss or damage suffered by the Purchaser as a result of any action whether civil or criminal brought by a third party) even if the Company has been advised of the possibility of such damages; and including breach of warranty which arises as a result of the misuse of the Equipment and/or Software supplied hereunder, or use thereof in combination with any equipment and/or software not approved by the Company or as a result of any defect or error in any equipment and/or software not supplied by the Company; and for any illegal or unauthorised access to or release of any Purchaser data from any device whatsoever connecting to the Software, including, but not limited to, any access or release of such data arising from the accessing of any Purchaser login credentials and/or login to Purchaser account(s) by malware, viruses, or worms, for malicious or criminal activities including, but not limited to, fraudulent payments or fraudulent funds transfer unless the Purchaser shall have served notice in writing of any facts which may give rise to a claim against the Company hereunder within 30 days of the date it either became aware of the circumstances giving rise to a claim or the date when it ought reasonably to have become so aware. This clause and the preceding clause shall not apply to any liability, which cannot lawfully be excluded or limited under any law or statute.
9.3 Except as expressly provided in this Agreement all warranties, conditions, representations, indemnities and guarantees, whether express or implied, arising by law, custom, oral or written statements of the Company or its third party licensors or otherwise (including, without limitation, any warranties of merchantability, fitness for particular purpose, or of error-free and uninterrupted use) are hereby superseded, excluded and disclaimed to the fullest extent permitted by law.
9.4 The Company’s sole obligation in the event that Purchaser’s use of third party software infringes on the intellectual property rights of any third party is to provide all reasonable co-operation and assistance to the Purchaser, as necessary, for the Purchaser to benefit from any intellectual property indemnity that may be provided by the third party licensor, to the Company.
10. Alterations
10.1 The Purchaser hereby undertakes not to alter or modify the whole or any part of any Software supplied hereunder nor, without the prior written consent of the Company, or to permit the whole or any part of the Software supplied hereunder to be combined with or become incorporated in any other software.
11. Confidentiality and Intellectual Property
11.1 Each party may have access to information that is confidential and proprietary to the other party (“Confidential Information”). Each party agrees not to make Confidential Information available in any form to any third party except to such party’s employees, contractors, agents or service providers who are required to know to allow such party to exercise its rights or perform obligations under these Terms and Conditions or to use the Confidential Information for any purpose other than in the performance of these Terms and Conditions. Each party agrees to take all reasonable steps to ensure that Confidential Information is secure and not disclosed or distributed by such party’s employees or agents in breach of this Section. Upon request of the disclosing party, the receiving party will destroy the disclosing party’s Confidential Information, other than archival back-up copy. The obligations of this provision shall not apply to any such Confidential Information which, after the date hereof, becomes publicly available without a breach of these Terms and Conditions, or is disclosed to a third party without similar restriction on the third party’s rights, or is already known in the relevant industry. This Section imposes no obligations upon the Company with respect to Purchaser Confidential Information that is known to the Company before disclosure under this Agreement and is not subject to any other obligation of confidentiality or is or becomes publicly known through no act or default of the Company.
11.2 The restrictions in this Section do not apply to the extent that any Confidential Information is required to be disclosed by any law or regulation. This Section will survive termination of this Agreement and or any Letter of Engagement or subscription agreement.
11.3 Notwithstanding the foregoing, the Purchaser agrees not to disclose the Software (without the Company’s prior written consent) to any service bureau or other third party whose primary function shall be to provide the Purchaser with hosting and/or day-to-day management and support responsibility for the Software. Purchaser acknowledges that use or disclosure of the Software in violation of this Agreement may cause irreparable harm to the Company (and/or its third-party licensors). Purchaser acknowledges that no remedy available in law may be sufficient in the event of a material breach of this Agreement by the Purchaser, its agents, employees, sub-contractors or third parties, or Purchaser Group Companies in respect of the confidentiality of the Company’s intellectual property.
12. Logos
12.1 Each party grants to the other the right without restriction to use the other’s official name and logo (including the name and logo of any purchaser group company) in its marketing, advertising and promotional material for a period of one year from the date when a commercial relationship exists by way of any agreement between the parties whether by way of Letter of Engagement, Service or subscription Agreement or otherwise, and thereafter until this permission is revoked by the party whose logo is being used by he other, after which point that other’s logo shall not be further used in any new material, but without prejudice to either party’s rights in respect of existing material.
12.2 This right conferred by this Section may not be exercised by a Customer without the express written permission of the Company.
13. Software Audit
13.1 The Purchaser agrees that upon reasonable prior written notice the Company may periodically gain access to Purchaser site(s) to confirm the Purchaser’s adherence to the terms of use and licence parameters specified under this Agreement. Where such audit confirms any variance to such terms and parameters, then the parties will execute an addendum to the Agreement to rectify such variance and the Purchaser shall pay any related licence and Support fees agreed thereunder. In the event that the parties fail to agree such fees, then Company reserves the right to terminate this Agreement in relation to such licence and/or Support with immediate effect without any refund of monies paid or due and Purchaser shall cease use of such Software, returning all copies thereof to the Company in accordance with Clause.
14. Data Protection
14.1 The Parties further agree to handle all personal data in accordance with all applicable data protection legislation, and in particular the GDPR and all applicable Irish legislation, and as may be further specified in this Agreement, in any Letter of Engagement or in a Platform Services subscription.
15. Termination
15.1 Either party may terminate this Agreement in writing if:
(i). the other party commits any material breach of any term of this Agreement and (in the case of a breach capable of being remedied) shall have failed, within 30 days after the receipt of a request in writing so to do; or
(ii). the other party has an interim or bankruptcy order made against it or enters into or becomes subject to a scheme, composition or voluntary arrangement with any of its creditors or becomes subject to a winding-up, dissolution, administration or receivership proceedings.
15.2 The Company may further, without prejudice to its other rights, suspend the performance of Professional Services, stop Equipment and/or Software in transit, or further deliveries or use of Software, or availability of Platform Services and/or terminate the Agreement and any licences granted to Purchaser forthwith on giving notice in writing to the Purchaser if Purchaser fails to pay any invoice in accordance with the foregoing payment terms or any subscription on its due date.
15.3 Upon termination of any Software licence, irrespective of cause, the Purchaser shall return forthwith all copies of the Software subject to the terminated licence without any rights of refund.
15.4 Following termination for any reason whatsoever, any monies owing from the Purchaser to the Company shall become immediately due and payable.
16. Assignment
16.1 The Purchaser shall not be entitled to assign, sub-licence or otherwise transfer the rights and obligations granted hereunder, or under the Agreement, whether in whole or in part unless otherwise agreed in writing by a duly authorised representative of the Company. The Company shall be entitled to sub-contract any Professional Services work relating to any Order Agreement without the consent of the Purchaser provided that such work is performed in accordance with the terms of this Agreement.
16.2 Nothing in this Agreement shall operate to assign or transfer any rights including Intellectual Property Rights from either party to the other unless explicitly provided for.
17. Force Majeure
17.1 With the exception of payment of outstanding invoices, neither Party shall be responsible for any delay or failure in performance resulting from acts beyond the control of such party. Such acts shall include but not be limited to: an act of God; an act of war; civil unrest; terrorism; riot, epidemic or pandemic; fire; explosion or accidental damage; extreme weather conditions (including but not limited to: flood, storm, or other disaster); an act of government; industrial action or lockouts; and failure of the world wide web. In the event of such a Force Majeure event, the time for performance or cure where specified shall be extended for a period equal to the greater of the duration of the Force Majeure or three (3) months. The party claiming to be prevented, hindered or delayed in the performance of any of its obligations under the Agreement by reason of a Force Majeure event shall use all reasonable commercial endeavours to mitigate against the effects and consequences of the Force Majeure event. The affected party shall resume performance of its obligations under the Agreement immediately upon the end of the Force Majeure event. Where no performance or cure is possible after the three (3) month period has elapsed, and in the reasonable view of the parties will not be forthcoming or possible within a further one (1) month from that date, the party not affected by the Force Majeure event may decide to terminate the Agreement on service of written notice upon the party so prevented, hindered or delayed, in which case no party shall have any liability or obligation to the other under the Agreement other than the payment of monies due.
18. Notices
18.1 Any notice or other communication to be given under this Agreement must be in writing and may be delivered or sent by pre-paid first class letter post to the Company at its registered address, or by e-mail to or facsimile transmission to an officer of the Company. Any notice or document shall be deemed served if delivered electronically by e-mail at the time of delivery; if posted 48 hours after posting; and if sent by facsimile transmission at the time of delivery.
19. Invalidity
19.1 The invalidity, illegibility or unenforceability of any provision or part of this Agreement shall not affect any other provision or part of this Agreement or Letter of Engagement or term of service.
20. Third Party Rights
20.1 To the extent permitted by law, a person who is not a party to this Agreement shall have no rights including under Law to enforce any term of this Agreement (including Purchaser Group Companies, aside from any rights that they may have to use the Software pursuant to the Purchaser’s licence grant hereunder). This condition does not affect any right or remedy of any person which exists or is available otherwise pursuant to existing legislation.
21. Law and Jurisdiction
21.1 This Agreement shall be governed by and construed in accordance with the laws of Ireland and shall be subject to the exclusive jurisdiction of the Irish Courts.
21.2 THE PURCHASER AGREES THAT THEY HAVE READ THIS AGREEMENT AND ANY LETTER OF ENGAGEMENT OR TERMS OF SERVICE IN FULL AND AGREES TO BE BOUND BY THE TERMS AND CONDITIONS CONTAINED THEREIN.
