Self Service Terms and Conditions

1 DEFINED TERMS

This clause defines terms used in this agreement. Other terms are defined elsewhere in this agreement.

(a) Active Contact Record means a record of any of the following events:

  • a person has opened an email;
  • a person has clicked an email link;
  • in or under a form, automation, customised function, competition, survey, vote or poll – a person has submitted a successful entry;
  • a person has sent or received an SMS;
  • a person receives or interacts with any Communication.

(b) Add-ons means functional or service extensions available within the Platform.

(c) Business Day means a week day on which banks are open for business in NSW, Australia.

(d) Client means the party in whose name the account with Supplier was created so that the Services can be supplied, and excludes Related Bodies Corporate of Client unless and to the extent otherwise agreed in writing by the parties. To be clear, Client also excludes the individual representative who creates an account on behalf of a client.

(e) Client Data means data supplied to Supplier by Client and relating to recipients of Communications.

(f) Client Materials means all subject-matter authored, created, produced or supplied by Client in or to which Intellectual Property or other rights subsist or relate, including Communications content.

(g) Communication means any electronic message transmitted or to be transmitted via the Platform via SMS, MMS, email, voice telephony, fax and any additional communications technology as Supplier may offer from time to time. A Communication inbound or outbound data submissions, including a response to an Application Programming Interface (API) call, form or survey question; or a vote, promotion entry, or a custom customer interaction.

(h) Complimentary Service Hours means an allowance (if any) of hours under the Plan for Client to make use of Supplier’s consultancy services team within the subscription fee for that Plan, with the nature of that use and quantum of those hours being as determined by Supplier from time to time.

(i) Confidential Information means any discovery, fact, data (including Client Data and New Data), idea, plan, strategy, method, principle, technique, routine, practice, knowledge, design, trade secret, know-how, information, customer information, Personal Information, product specification, business proposal or marketing plan, that is not presently widely known or available to the public and that is held by Supplier or Client or generated by Supplier or Client in the course of the performance of this agreement.

(j) Emergency means the existence of circumstances affecting the Platform that are causing serious disruption to the ability of Supplier to supply services to clients, being circumstances not planned, caused or directly controlled by Supplier.

(k) Expenses means reasonable expenses (such as travel expenses) that Supplier incurs specifically in order to perform its obligations under this agreement.

(l) Initial Term means the period of time specified as the first or initial term in the Plan.

(m) Insolvency Event means the happening of any of the following:

  • an application is made to a court for that a party be wound up or liquidator be appointed;
  • a party appoints an administrator, liquidator or receiver;
  • a party becomes insolvent; or
  • anything having a substantially similar effect to any of the above occurs in relation to a party.

(n) Intellectual Property means existing and future copyright, trademarks, designs, patents or circuit layouts, whether registered or not.

(o) Laws means, in respect of Client or Supplier (as applicable), any law in force:

  • whether derived from statute (including subordinate legislation and legislative instruments), common law, equity, mandatory industry codes or other sources of law, and in relation to statute;
  • without limiting the foregoing, including the Spam Act 2003 (Cth), Do Not Call Register Act 2006 (Cth), Privacy Act 1988 (Cth), Telecommunications Act 1997 (Cth), Broadcasting Services Act 1992 (Cth), Competition and Consumer Act 2010 (Cth), trade promotion lotteries and gaming and gambling legislation, and any similar or equivalent law of jurisdiction other than Australia;
  • without limiting the foregoing, a schedule to this agreement that sets out a law; and
  • without limiting the foregoing, whether public or private, and in relation to private rights, includes intellectual property, rights conferred under defamation laws, rights conferred under discrimination laws and rights against invasion of privacy,

to the extent that it may have effect over or application to Client and its activities or Supplier and its activities (as applicable).

(p) Legal Compliance means compliance, consistency with and non-contravention of all Laws.

(q) Loss includes any general, direct loss, damage, cost, expense or liability, including legal costs, but excludes special (indirect, incidental) loss and punitive and exemplary loss (including loss of data, revenue, profits, use or other economic advantage under any circumstances).

(r) New Data means data:

  • generated by the Platform as a result of Client’s use of the Services;
  • that relates to the recipients of Communications; and
  • that is not Client Data.

(s) Non-Subscriber Profile Data Record means a contact record added onto the Platform for the purpose of communication and or data storage and which record is currently not associated with any subscription functions or active communications lists.

(t) Personal Information has the same meaning as in the Privacy Act 1988 (Cth).

(u) Plan means the relevant online subscription package or plan as selected by Client and, for the purposes of this agreement, the terms of the Plan as published from time to time are deemed a schedule to this agreement. To be clear, Client may acquire multiple subscription packages from Supplier and each package will operate as a discrete Plan as a schedule to this agreement.

(v) Platform means the electronic communications software platform supplied by Traction and accessed via the internet (or other agreed channel) that performs functions in response to Client inputs, and if specified in the Plan, as specified.

(w) Related Body Corporate has the same meaning as in the Corporations Act 2001 (Cth).

(x) Renewing Term means the period of time specified as the renewing term in the Plan.

(y) Secure Access Information means unique Confidential Information supplied by Supplier to Client for the purpose of enabling Client to use the Services, including username and login.

(z) Services means:

  • access to the Platform to facilitate delivery of Communications to a recipient and to receive and deliver an incoming recipient Communications to Client;
  • the Platform’s performance of functions in response to Client’s use of the Platform;
  • account management, consultancy and Support Services; and
  • any other services as agreed in writing between Supplier and Client from time to time.

To be clear, the Services exclude the giving of Legal Compliance advice, performing Legal Compliance services or reviewing or signing off on Communications, other Client Materials or conduct. (aa) Start Date means date that the parties enter into this agreement in accordance with clause 15.1.

(aa) Start Date means date that the parties enter into this agreement in accordance with clause 15.1.

(bb) Sub-Contractor Service Provider means a sub-contractor of Supplier who provides a service essential to Client’s access to and use of the Technology, such as an SMS messaging service provider.

(cc) Subscriber Profile Data Record means a contact record added onto the Platform for the purpose of communication and which record is currently associated with one or more subscription functions or active communication lists, including any contact record that is an Active Contact Record within the current billing period.

(dd) Supplier means Traction Digital Pty Ltd (ACN 092 342 375) of Suite 1, Level 25, 66 Goulburn St Sydney, NSW 2000.

(ee) Supplier Materials means all subject-matter authored, created, produced or licensed by Supplier in or to which Intellectual Property or other rights subsist or relate, including all software underlying the Platform.

(ff) Support Services means the services specified in schedule A.

(gg) Technical Documentation means the technical documentation provided to Client, as amended from time to time.

(hh) Third Party Service Provider means a third party who provides a service essential to Client’s access to and use of the Platform, such as a telecommunications carrier.

2 SERVICES - SUPPLIER

2.1 Services supply

Supplier must supply the Services and, insofar as they are specified in the Plan, as specified.

2.2 Communications and Complimentary Service Hours

(a) The Communications and Complimentary Service Hours allowance per month is specified in the Plan.

(b) If there is a failure in the delivery of a Communication, Supplier must perform as many re-transmissions as reasonably practicable for at least 5 days after the day on which the first failed delivery occurred. Client acknowledges that the number of re-transmission attempts will vary depending on circumstances outside Supplier’s control.

2.3 Maintenance & modification

(a) Supplier must maintain the Platform in good order and repair.

(b) Supplier may upgrade the Platform or modify or substitute Services.

(c) Client acknowledges that:

  • Supplier’s maintaining or upgrading of the Platform or modifying or substituting Services may cause minor disruption to Client’s use of the Services; and
  • Supplier’s modifying or substituting Services may result in different (but equivalent and not fundamentally different) or superior Services.
  • Supplier may review and monitor all Client Materials, Client Data and New Data.

2.4 Emergency

(a) Client acknowledges that the Services are reliant on Third Party Service Providers and that an Emergency may occur at any time.

(b) In the event of an Emergency, Supplier may suspend the supply of or disable Services for the duration of the Emergency.

(c) Supplier must suspend the Services for the shortest time practicable and must use its best endeavours to resolve the Emergency as quickly as possible.

(d) If it would be reasonably practicable for Supplier to give Client notice prior to suspending Services, Supplier must give Client that notice.

(e) Supplier excludes any liability to Client for loss suffered by Client as a result of an Emergency.

3 SERVICES - CLIENT

3.1 Services acquisition & use

(a) Client acknowledges that the capacity of Sub-Contractor and Third Party Service Provider’s services may be reached during peak times, such as New Year’s Eve, and that, during those peak times, the transmission of Communications may be delayed.

(b) Client may refer to Supplier and use the Supplier Trade Mark in the footer of a Communication, but only if such reference and use does not represent that Supplier is acting in any capacity other than to transmit the Communication on Client’s behalf.

3.2 Positive obligations

(a) To the extent that Client wishes to transmit Communications, Client must produce the content of the Communications.

(b) Client must ensure that all Communications (including their content) is consistent with Legal Compliance, including in relation to transmission, storage or dissemination.

(c) Client must ensure that all materials and information required to successfully transmit a Communication are accurate and complete.

(d) Client must provide such reasonable co-operation as required to enable Supplier to supply the Services in accordance with this agreement.

(e) Client must prevent its Secure Access Information being mislaid, compromised, stolen or otherwise used by any unauthorised person and must notify Supplier as soon as practicable upon becoming aware that it has been.

(a) Client must obtain, and continuously warrants that it has obtained, all necessary consents for the purposes of sending electronic messages to any person consistently with Legal

Compliance, especially in compliance with its obligations under the Spam Act 2003 (Cth) (https://www.legislation.gov.au/series/c2004a01214) or other similar or equivalent Law.

3.3 Negative obligations

(a) Client must not share Secure Access Information with any third party without Supplier’s prior approval in writing.

(b) Client must not modify, replace, copy, reverse-engineer, gain unauthorised access to restricted areas within or sabotage the Platform or otherwise do any act that is not contemplated under this agreement as a legitimate use of the Platform. (c) Without limiting paragraphs (a)-(b), when using the Services Client must not do any act that is inconsistent with Legal Compliance or do any act that otherwise unreasonably interferes with, harasses, offends any person or is reasonably likely to bring Supplier or any of its Related Bodies Corporate into disrepute.

3.4 Trade promotion lotteries

If the Services relate to any trade promotion lottery (TPL), the terms at http://www.traction-digital.com/promotions-terms-conditions/ apply, including in circumstances where the Platform includes TPL functionality that Client accesses and manages.

4 FEES

(a) Supplier may charge to Client the following fees and any other fees as specified in the applicable Plan (together, Fees) including:

  • an account set-up fee upon creating Client’s basic account;
  • a sub-account set-up fee on each occasion Supplier creates a sub-account of the basic account;
  • the subscription fee for the Plan;
  • an additional fee for each Communication that Client uses the Platform to transmit in excess of the Communications allowance under the Plan;
  • an additional fee for each Non-Subscriber Profile Data Record, Subscriber Profile Data Record or Active Contact Record that is stored, recorded or used within the Platform in excess of the Plan allowance;
  • SMS and third party carrier or transmission fees;
  • to the extent that they are not covered by the Complimentary Service Hours, an additional fee for Services comprising account management, consultancy and Support Services, and any other additional services as agreed in writing between Supplier and Client from time to time; · subject to clauses 7.3 and 7.4, delivering up to Client, or destroying, copies of Client Data and New Data in Supplier’s possession, custody or control; and
  • additional fees for Add-ons.

(b) Supplier may vary Fees for Plans, Add-ons and Services at any time by communicating notice via the Platform or any other means Supplier deems reasonable.

(c) If:

  • the terms of a Plan provide for limits over usage or features;
  • in the course of using or receiving the Services under that Plan, Client exceeds any such limits or makes use of features that are only included in a higher-priced Plan,

Client will be automatically upgraded to the next higher-priced Plan that includes such usage within its ordinary terms and charged the difference between the two Plans. Supplier is not obliged to notify Client of the upgrade. Client acknowledges that Client is solely responsible for monitoring and managing its usage within the limits and features included within the ordinary terms of its Plan.

5 PAYMENT

5.1 Amount

(a) Client must pay all Fees to Supplier.

(b) Where applicable, Client must also pay to Supplier the GST required to be paid under Australian GST law.

(c) All payments must be in full and without any set-off.

5.2 Time

Client must pay to Supplier all amounts payable in advance of acquiring any Services and otherwise in accordance with the terms of the Plan.

5.3 Method

Client must pay all amounts via credit card through a billing system provided by Supplier.

5.4 Late payment

Notwithstanding anything else in this agreement, Supplier may suspend its supply of the Services until all amounts due and owing have been paid.

6 INTELLECTUAL PROPERTY

6.1 Ownership

(a) Except as expressly provided in this agreement, Supplier acknowledges that, as between it and Client: Supplier does not own any Intellectual Property in, nor is entitled to exercise any other rights in respect of, Client Materials or Client Data;

(b) As between Client and Supplier and in relation to Supplier Materials, Client gives the same acknowledgement as Supplier gives to Client in paragraph (a).

6.2 Licences

(a) Supplier hereby grants Client a licence to use Supplier Materials as required to acquire the Services. The licence is:

  • for the term of this agreement;
  • non-exclusive;
  • confined to the country associated with Client’s account with Supplier for billing purposes;
  • revocable for so long as Supplier exercises its rights to suspend the Services pursuant to this agreement;
  • non-transferable and non-sublicensable, other than to Client’s Related Bodies Corporate by agreement in writing between the parties.

(b) Client hereby grants Supplier a licence to use Client Materials and Client Data as required to supply the Services. The licence is:

  • irrevocable;
  • royalty free; and
  • transferable and sublicensable other than to Supplier’s Related Bodies Corporate and sub-contractors.

(c) Client acknowledges that the Supplier has the right, but not obligation, to review and monitor all Client Materials, Client Data and New Data and may suspend or terminate this Agreement for any reason, including without limitation, any alleged breach of any term of this Agreement. For clarity, Client is not entitled to any refund or credit relating to such removal, suspension or termination.

6.3 Infringement

(a) Client warrants that Supplier’s use of Client Materials and Client Data as contemplated by this agreement will not infringe the Intellectual Property or other rights of any third party.

(b) Supplier must not do any act that infringes Intellectual Property or other rights in Client Materials or Client Data.

(c) Client must not do any act that infringes Intellectual Property or other rights in Supplier Materials.

6.4 Moral Rights

Client warrants that all authors (including sub-contractors) of subject-matter comprised in Client Materials have waived or will waive all right, title and interest they may have in any right, action or remedy for infringement of any moral rights they may have in that subject-matter.

7 DATA

7.1 Ownership

Except as expressly provided in this agreement, Supplier acknowledges that, as between it and Client, Supplier does not own any rights in electronic copies of Client Data or New Data.

7.2 Storage

(a) Client acknowledges that Sub-Contractor Service Providers may include data storage service suppliers. In that regard, Supplier must:

  • use only reputable suppliers of data storage services;
  • ensure that each data storage service provider has access controls in effect that will protect Client Data and New Data from unauthorised access, to a level of protection consistent with the reasonable expectations of a first-class commercial organisation; and
  • ensure that each data storage service provider has recovery systems in effect such that Client Data and New Data is protected from primary systems failure, to a level of protection consistent with the reasonable expectations of a first-class commercial organisation.

(b) Supplier represents that its primary data storage environment is within Australia and, to the extent that it is legally obliged to do so, that Supplier complies with DIRECTIVE 95/46/EC, the attached Schedule B – Data Transfer Agreement as well as standard contractual clauses for the transfer of personal data to third countries required under directive 95/46/EC to be incorporated into this agreement (see also clause 15.2 (terms)).

7.3 Copies

(a) Upon Client’s request, Supplier may deliver up to Client copies of Client Data and New Data in Supplier’s possession, custody or control.

(b) Supplier is under no obligation to provide such copies in any particular format.

7.4 Destruction

Upon Client’s request, but only to the extent that it is reasonably practicable, lawful and does not expose Supplier to commercial or legal risks associated with a failure to keep records, Supplier must permanently destroy or disable access to all copies of Client Data and New Data in Supplier’s possession, custody or control.

7.5 Privacy

Nothing in this agreement affects the parties’ obligations under privacy Laws.

Note: Supplier’s privacy policy can be viewed at this URL: http://www.traction-digital.com/privacy/

8 CONFIDENTIAL INFORMATION

(a) The parties acknowledge that, in the course of performing this agreement, one party (Discloser) may disclose Confidential Information to the other (Recipient).

(b) Subject to the express provisions of this agreement, a Recipient must not:

  • disclose any of Discloser’s Confidential Information to any person; or
  • use any of Discloser’s Confidential Information for any purpose other than exercising its rights or performing its obligations under this agreement, without Discloser’s express written authorisation.

(c) Each Recipient may disclose Discloser’s Confidential Information to its directors, officers, employees, contractors, sub-contractors and agents as, and only as, reasonably necessary for the purposes of Recipient’s performance of this agreement.

9 EXCLUSIONS

9.1 Exclusions generally

(a) Client acknowledges that the Services exclude:

  • reviewing content for any reason, including in relation to Legal Compliance formatting or typographical errors;
  • reviewing or ‘signing off’ on any client functional specifications:
  • reviewing or ‘signing off’ on Client’s Legal Compliance generally or providing professional or legal advice in relation to Legal Compliance, even if Supplier supplies TPL terms and conditions or a ‘spam assessment’ or similar tools to Client, which Client acknowledges is merely a guide to assist Client to manage its own Legal Compliance.

9.2 Client’s liability

(a) Client acknowledges that it is at all times solely responsible and liable for the:

  • accuracy and integrity of Communications content and Client Data;
  • Legal Compliance of Communications and Client’s commercial conduct and affairs;
  • configuration of user-configurable aspects of its account; and
  • any loss or damage suffered by Client as a result of any failure on its part in relation to the matters in this paragraph (a), including any failure in the delivery of Communications.

(b) The parties acknowledge that in relation to Client Data that is also Personal Information, then as between Client and Supplier, Client alone collects, stores, uses and discloses the Personal Information within the meaning of the Privacy Act 1988 (Cth).

9.3 Supplier’s right to refuse

(a) Supplier may refuse to supply the Services or otherwise act on Client’s directions to the extent that:

· Supplier reasonably believes that doing so would likely involve Supplier’s or Client’s engaging in conduct inconsistent with Legal Compliance;

· Client’s directions are incomplete, ambiguous or contradictory;

· Client Data is not fully fit for purpose; or

· Client content or actions are abusive, obscene, defamatory, inaccurate, profane, threatening, offensive or otherwise inconsistent with Legal Compliance.

(b) Client must not use the Services or the Platform in any way connected with any content or actions that are abusive, obscene, defamatory, profane, threatening, offensive or otherwise inconsistent with Legal Compliance. Client acknowledges that Supplier may treat a breach of this paragraph (b) as a material and irremediable breach.

10 WARRANTIES

10.1 Additional warranties Client gives

In addition to and without limiting any warranty Client gives elsewhere in this agreement, Client warrants that:

  • Supplier’s performing this agreement will not cause Supplier to act inconsistently with Legal Compliance by reason merely of Supplier’s supply of the Services in accordance with this agreement and otherwise following Client’s feedback and directions and relying on information supplied by Client to Supplier;
  • it accepts the Services ‘as is’;
  • Client does not rely on any representation from Supplier that is not expressly contained in this agreement; and
  • any representative of Client who signs this agreement, purports to vary this agreement or provides directions to Supplier is authorised by Client to do so and bind Client under this agreement.

10.2 ADDITIONAL WARRANTIES SUPPLIER DOES NOT GIVE

IN ADDITION TO WARRANTIES EXPRESSLY DISCLAIMED ELSEWHERE IN THIS AGREEMENT, BUT SUBJECT TO THE CONSUMER RIGHTS AS APPLICABLE, SUPPLIER GIVES NO WARRANTY THAT:

  • THE SERVICES WILL NOT FAIL IN CIRCUMSTANCES WHERE A THIRD PARTY SERVICE PROVIDER FAILS;
  • THE SERVICES WILL CONFER ON CLIENT ANY PARTICULAR COMMERCIAL OBJECTIVE, OUTCOME OR BENEFIT;
  • IS NOT EXPRESSLY CONTAINED IN THIS AGREEMENT OR IS OTHERWISE A COMPULSORY PROVISION, INCLUDING AS TO WHETHER THE SERVICES OR THE PLATFORM ARE OR WILL BE RELIABLE TIMELY, OF ACCEPTABLE QUALITY, SUITABLE, AVAILABLE, ACCURATE, COMPLETE, SECURE, ERROR-FREE, UNINTERRUPTED, COMPATIBLE WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, OR FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
  • THE SERVICES MAY BE RELIED UPON IN CIRCUMSTANCES AFFECTING THE HEALTH, SAFETY OR PROTECTION OF PERSONS OR PROPERTY.

11 INDEMNITY

Without limiting clause 9.2, Client indemnifies Supplier against any loss suffered by Supplier:

  • as a result of any breach of this agreement (including its warranties) by Client or any other unlawful conduct engaged in by Client in relation to the acquisition or use of the Services; and
  • including where such loss arises from legal action brought against Supplier by a third party, including a regulator, or brought by Supplier against a third party.

12 LIMITATION OF LIABILITY

WITHOUT LIMITING CLAUSES 2.4, 9.2 AND 11 AND SUBJECT TO CLAUSE 15.6, SUPPLIER’S LIABILITY TO CLIENT OR ANY OTHER PARTY IS LIMITED (CUMULATIVELY) TO THE EXTENT TO WHICH CLIENT OR ANY OTHER PARTY CAUSED THE LIABILITY TO ARISE BY REASON OF THEIR OWN NEGLIGENCE, BREACH OF CONTRACT OR OTHER UNLAWFUL CONDUCT, AND SUPPLIER’S LIABILITY TO CLIENT IS FURTHER LIMITED TO LOSS AND, TO THE MAXIMUM EXTENT PERMITTED BY LAW, SUPPLIER’S LIABILITY TO CLIENT IS FURTHER TO SUPPLYING THE SERVICES AGAIN OR PAYING THE COST OF HAVING THE SERVICES SUPPLIED AGAIN.

13 FORCE MAJEURE

(a) In the event that a party is prevented in fact or by law from performing any of its obligations under this agreement by reason of an event beyond its reasonable control, then those obligations of that party are suspended for the period of time that the party remains so prevented.

(b) Paragraph (a) does not apply to an obligation to pay money nor to an event that was caused by an act of default by the party so prevented.

14 TERM & TERMINATION

14.1 Term

(a) This agreement commences on the Start Date and, unless lawfully terminated sooner, continues until the termination of the Initial Term and Renewing Term of each Plan governed by this agreement. If this agreement is lawfully terminated sooner, the term of each such Plan also terminates.

(b) In respect of each Plan governed by this agreement, the Plan commences as follows:

  • if there were no Plans previously governed by this agreement – on the Start Date; or · on the date that Client enters into the Plan pursuant to clause 15.1 (formation).

(c) The term of each Plan governed by this agreement is the Initial Term. The term of each Plan then renews automatically for a Renewing Term on the day after the Initial Term or a Renewing Term (as the case may be) terminates by expiry.

(d) The terms of this agreement during a Renewing Term are the same as this agreement (if and as amended pursuant to clause 15.4).

14.2 Termination at end of term

Either party may terminate this agreement effective from the end of the current term (whether the Initial Term or a Renewing Term) by giving the other party notice in writing no less than 10 days’ prior to the end of the current term. To be clear, this agreement continues in full force and effect during the notice period.

14.3 Termination for breach

Without prejudice to any other right, action or remedy, if Client breaches this agreement and:

  • the breach is reasonably capable of being remedied by Client and Client does not remedy the breach within 5 Business Days of Supplier’s notifying Client in writing about the breach;
  • the breach is serious, in Supplier’s opinion; or
  • the breach is material and not reasonably capable of being remedied by Client,

then Supplier may terminate this agreement with immediate effect by giving Client in writing.

14.4 Termination for other event

(a) Supplier may terminate this agreement with immediate effect if an Insolvency Event occurs in relation to the Client.

(b) Either party may terminate this agreement with immediate effect if: · a party has been relieved of any of its obligations pursuant to clause 13 (force majeure) for at least 3 consecutive months; and

  • the obligations of which the party has been relieved are fundamental to that party’s performance under this agreement.

14.5 Consequences of termination

(a) Client must continue to pay the Service Fee until this agreement terminates. (b) Subject to clause 15.6, Client is not, upon and by reason of termination, entitled to any refund, credit, compensation or other payment, including even if Client has allocated in its favour unused, prepaid amounts or credits, including Complimentary Service Hours or in respect of Services.

(c) Supplier may delete any and all Client Data and New Data related to Client’s account at any time at least 30 days after the date of termination. Client acknowledges that it is solely responsible for its compliance with any local or international, statutory retention requirements with respect to Client Data and New Data.

14.6 Notice in advance

To be clear, any notice in writing given under this clause 14 is notice given in advance.

15 THIS AGREEMENT

    15.1 Formation

    Client enters into an agreement with Supplier on the terms and conditions recorded in this agreement by doing any of the following:

    • creating an account with Supplier in respect of, or to use, any Services;
    • using any Services;
    • completing any form of online contracting mechanism or procedure determined by Supplier; or
    • any other procedure that Supplier expressly accepts in writing as Client entering into this agreement.

    Client enters into a Plan if, in respect of the Plan, any of the second, third or fourth bullet points apply.

    15.2 Terms

    (a) This agreement includes the Plan and any other schedules to this agreement, but excludes Technical Documentation. To be clear, any anti-spam policy of Supplier and published by or notified to Client is a schedule to this agreement.

    (b) To the extent that a schedule sets out a Law that requires contractual terms in that schedule to form part of this agreement, those contractual terms are incorporated into this agreement.

    (c) To the extent there is any irreconcilable inconsistency between the body of this agreement and the Plan or a schedule, the terms of the Plan or schedule prevail. (d) Subject to paragraph (a) and clause 15.3, this agreement as a document, embodies all the express terms of the agreement and supersedes or excludes all other agreements, arrangements, understandings and representations, written or oral, in relation to Client’s engagement of Supplier to supply the Services.

    15.3 Principles of interpretation of agreement

    In this agreement, unless expressly to the contrary and as appropriate in the context:

    (a) an expression in the plural may be read in the singular, and vice versa;

    (b) all references to currency or amounts of money are in US Dollars;

    (c) in relation to an expression reflecting a present state of affairs, if the existence of an obligation is conditional on the existence of that state of affairs, the obligation only survives to the extent that the condition remains satisfied during the term of this agreement;

    (d) a reference to a thing or things includes a reference to any, some or all, or part or whole, of the thing or things, but does not of itself permit a person not to perform an obligation in full;

    (e) a reference to an act includes an omission and to the causing to be done of that act or omission, including the execution of legal documentation;

    (f) a reference to a person doing an act includes a reference to the doing of the act on behalf of the person;

    (g) a reference to one alternative does not, of itself, exclude any other alternative;

    (h) an expression of the exercise of a right means the exercise of that right at the sole and absolute discretion of the relevant party;

    (i) an expression prohibiting the doing of an act includes the prohibiting of:

    • offering, attempting or purporting to do the act; or
    • aiding, abetting, authorising, approving, contributing to, directing or materially being involved with the doing of the act;

    (j) a list of rights is not to be read as an exhaustive list of rights;

    (k) an expression of ownership includes the legal or beneficial ownership;

    (l) a reference to an assignment or transfer of proprietary rights is a reference to the absolute and irrevocable assignment or transfer;

    (m) a reference to a warranty includes a reference to a representation or guarantee;

    (n) a reference to a ‘copy’ of a thing includes the original embodiment in material form of the thing;

    (o) a reference to ‘this agreement’ includes a reference to the terms and conditions of this agreement, or this document, regardless of whether the terms and conditions of this agreement, or this document, are sometimes expressly referred to in this agreement; and

    (p) a reference to a provision, clause or paragraph is a reference to a provision, clause or paragraph of this agreement.

    15.4 Variation

    The parties may vary this agreement only by agreement in writing.

    15.5 Waiver

    Subject to this agreement, no waiver of rights, actions or remedies is effective unless in writing. To be clear, the failure of any party to exercise or enforce a right, action or remedy under this agreement, or otherwise, does not constitute a waiver of the relevant right, action or remedy.

    15.6 Consumer rights & severability

    (a) Supplier acknowledges that:

    • there may be a guarantee that the Services will be supplied with due care and skill and that by operation of law certain agreements may contain certain terms, conditions, warranties or liabilities whether by implication or otherwise (Consumer Rights);
    • by operation of law, Consumer Rights cannot or must not be excluded, modified or limited; and
    • to the extent that an agreement includes provisions that exclude, modify or limit Consumer Rights, or purports to do so, then by operation of law (including the Australia Consumer Law 2010 (Cth)) those provisions may be unlawful, unenforceable or void.

    (b) Notwithstanding anything else in this agreement, this agreement does not, nor purports to, exclude, modify or limit any Consumer Right.

    (c) To the extent that any provision of this agreement would be unlawful, void or unenforceable for any reason (including by reason of the matters acknowledged in clause paragraph (a) above), the other provisions of this agreement are valid and enforceable.

    15.7 Assignment & novation

    Supplier may assign its rights or novate its rights and obligations under this agreement without the other party’s written consent.

    15.8 Survival

    The following matters survive the termination of this agreement: · clauses 5, 6, 7.3-7.4, 8, 9.2, 11, 12, 14.5 and 15.8;

    • all accrued obligations, including an obligation to pay fees and charges; and
    • all terms necessary to construe and give effect to the foregoing matters.

    15.9 Governing law & jurisdiction

    (a) The laws of the state of New South Wales, Australia, govern this agreement.

    (b) The parties acknowledge that the courts of NSW are an appropriate forum for the settlement of disputes arising under or in relation to this agreement.

    (c) To the extent they come before any court, all disputes arising under or in relation to this agreement will be determined in the courts of NSW.

     

    Schedule A – Support Services

    Features
    Available time period: Business Day
    Contact: Support Ticket, Phone & Email
    Response time: Within 8 Business Hours
    Availability of support:
    Initial acknowledgement of issue with generation of an email with incident ticket number in 15 minutes during available time periods in accordance with the contracted support plan.
    Response to support request
    Completion of initial fault analysis and either resolution of the issue or agreement of action plan and its estimated completion time will be provided within the above stated response times.

    Traction Support Schedule

    (Capitalised terms used in this schedule which are also defined in the terms and conditions have the same meaning as in the terms and conditions, except as follows; ‘Client’ or ‘client’ in the table below is generic only and not intended to refer specifically to Client (as defined in the terms and conditions)

    or Client’s corporate group (Client Group); ‘Traction Digital’ means Supplier.)

    Support CategorySupport Type ASupport Type B
    Client SetupInitial legacy data import
    Image hosting (basic package)
    Custom client domain creation (trclient.com)
    Individual email server IPs
    Extended data clean
    Image hosting extended package
    Client training
    Platform SupportAssistance with use of the user interface – this does not include campaign setup etc.Generation of reports
    Creation of targets
    Approval or resume of campaigns
    Campaign SetupNoneCampaign setup and support
    Creation of T&C
    Permit acquisition
    Campaign support lines
    Account ManagementUser login management Initial campaign review, per type (e.g. client’s first broadcast)Additional Traction accounts (based on contract terms)
    Mobile ProvisioningSMS endpoint setup
    Number availability checks
    Number provisioning and rental
    SMS DeliverabilitySMS endpoint setup
    Number availability checks
    Connectivity fixes where Traction at fault
    Escalation of network issues to appropriate vendor, notification of progress and resolution
    Email DeliverabilityEmail send issues (from Traction to a transit state)
    Delivery issue fixes where Traction at fault
    Escalation of delivery issues to appropriate ISP, notification of progress and resolution
    Email deliverability consulting
    Email evaluations
    Whitelisting
    Junk folder monitoring and management
    Internal Traction errorsInvestigation and resolution
    IntegrationAPI fixes where Traction at faultCoding or code review
    Developer training
    Email designWYSIWYG editor issues (independent of content)HTML coding or code review
    Data servicesCustomer upload
    Customer export (excluding on termination of contract)
    Data cleaning
    Attribute/profile design
    Data strategy workshops

    User support conditions

    User support is provided for a range of support categories and support types. All support categories and support types are covered under all support plans.

    Support types A, which also includes all support issues that result in a Traction bug, are provided at no extra cost.

    Support types B are chargeable events in respect of which Complimentary Service Hours do not apply. Traction Digital will not perform the work without the written approval of the Client.

    Furthermore, complementary support will be provided during Business Hours to assist the Client Group with gaining expert assistance in completing specific tasks or scenarios on the Platform however, it is not a replacement for training. Where the Client Group requires unreasonable levels of support of this nature (Unreasonable Support), Traction Digital reserves the right to charge for this on a time and materials basis at the contracted rate per hour.

    Unreasonable Support is further defined as support calls arising from a member of the Client Group’s staff having not completed Traction training, or multiple support calls made by a single user repeatedly requiring assistance with the same process (for example, a user who telephones support every month to be walked through sending their monthly broadcast).

    Traction Digital will first discuss any instances of Unreasonable Support with the Client before allocating any charges.

    Travel expenses, should travel be required, must be paid by the Client.

    Delays in messaging or user interface availability due to third-party congestion or service issues are outside the control of Traction Digital and the Platform. Resulting issues may be reported and monitored only.

    Schedule B – Data Transfer Agreement

    The attached Schedule B as well as the standard contractual clauses for the transfer of personal data to third countries under directive 95/46/EC shall be incorporated into this agreement with the following changes:

    (a) Data exporters shall mean the Client.

    (b) Data importer shall mean Traction Digital. (c) With reference to clause 9 the governing law is the law as stated in clause 15.9 of this agreement.

    (d) With reference to Appendix 1:

    a. The Data Exporter is engaging with its audience via one or many digital channels (e.g. web, email, SMS) with the objective of collecting and/or disseminating data originating from the data subject, itself or a third party.

    b. The Data Importer is providing a hosting environment, an Application Service Provider (ASP) (Traction Services) and a software platform (Platform) to store the data collected by the Data Exporter. The Platform facilitates the exchange of data between the data subjects and the Data Exporter. The usage of that data is under the sole control of the Data Exporter.

    c. The personal data transferred concern the following categories of data subjects: The selection of data subjects is within the sole control of the Data Exporter.

    d. The personal data transferred fall within the following categories of data: Any personal data transferred is within the full control of the Data Exporter. Typically, data collected may entail customer profile data designed by the Data Exporter, customer interactions within a function of the Platform (e.g. recording of competition entry and prize win, emails sent to a consumer in accordance with their permission or on a soft opt-in basis, completion of web surveys by data subjects).

    e. The personal data transferred fall within the following categories of sensitive activities: The determination of sensitive personal data categories, if any, is under the sole control of the Data Exporter.

    f. The personal data transferred will be subject to the following basic processing activities: Processing activities entail the storage of data received through activities controlled by the Data Exporter, the integration of the data by the Data Exporter and the interaction with the data subject by the Data Exporter based on the stored data.

    2. With reference to Appendix 2:

    a. The technical organisation and security measures implemented by the Data Importer in accordance with clauses 4d and 5c are as follows: Access to the data by the Data Exporter is restricted by use of username and passwords along with security access levels. All Data Importer interaction with the data requires username and password and is performed over a secure connection. The data is held in an Oracle database on locked down servers behind a firewall and in a secure data centre. Access to the data is only available to the Data Importer or the Data Exporter through the authorised use of the platform. To protect against loss of or damage to the data, the data is backed up every four hours on equipment with redundancy capabilities. For the avoidance of doubt, the Data Importer will never interact with data that belongs to the Data Exporter unless explicitly instructed to do so by the Data Exporter, except any handling of data necessary in the course of maintaining and enhancing the Platform.

    Commission Decision C(2010)593

    Standard Contractual Clauses (processors)

    For the purposes of Article 26(2) of Directive 95/46/EC for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection

    On behalf of the data exporting organisation:
    Client,
    On behalf of the data importing organisation:
    Traction Digital Limited
    Address: as supplied in account detailsAddress: Fourth Floor, 1 Rivington Place, London EC2A 3BA, United Kingdom
    Contacts.: as supplied in account detailsTel.: +44 20 7060 2900
    fax: +44 20 3207 9100
    e-mail:info@tractiondigital.com
    Other information needed to identify the organisation:Other information needed to identify the organisation:
    (the data exporter)(the data importer)

    each a “party”; together “the parties”,

    HAVE AGREED on the following Contractual Clauses (the Clauses) in order to adduce adequate safeguards with respect to the protection of privacy and fundamental rights and freedoms of individuals for the transfer by the data exporter to the data importer of the personal data specified in Appendix 1.

    Clause 1

    Definitions

    For the purposes of the Clauses:

    (a) ‘personal data’, ‘special categories of data’, ‘process/processing’, ‘controller’, ‘processor’, ‘data subject’ and ‘supervisory authority’ shall have the same meaning as in Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data1;

    (b) ‘the data exporter’ means the controller who transfers the personal data;

    (c) ‘the data importer’ means the processor who agrees to receive from the data exporter personal data intended for processing on his behalf after the transfer in accordance with his instructions and the terms of the Clauses and who is not subject to a third country’s system ensuring adequate protection within the meaning of Article 25(1) of Directive 95/46/EC;

    (d) ‘the subprocessor’ means any processor engaged by the data importer or by any other subprocessor of the data importer who agrees to receive from the data importer or from any other subprocessor of the data importer personal data exclusively intended for processing activities to be carried out on behalf of the data exporter after the transfer in accordance with his instructions, the terms of the Clauses and the terms of the written subcontract;

    (e) ‘the applicable data protection law’ means the legislation protecting the fundamental rights and freedoms of individuals and, in particular, their right to privacy with respect to the processing of personal data applicable to a data controller in the Member State in which the data exporter is established;

    (f) ‘technical and organisational security measures’ means those measures aimed at protecting personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing.

    Clause 2

    Details of the transfer

    The details of the transfer and in particular the special categories of personal data where applicable are specified in Appendix 1 which forms an integral part of the Clauses.

    Clause 3

    Third-party beneficiary clause

    1. The data subject can enforce against the data exporter this Clause, Clause 4(b) to (i), Clause 5(a) to (e), and (g) to (j), Clause 6(1) and (2), Clause 7, Clause 8(2), and Clauses 9 to 12 as third-party beneficiary.

    2. The data subject can enforce against the data importer this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where the data exporter has factually disappeared or has ceased to exist in law unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law, as a result of which

    it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity.

    3. The data subject can enforce against the subprocessor this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity. Such third-party liability of the subprocessor shall be limited to its own processing operations under the Clauses.

    4. The parties do not object to a data subject being represented by an association or other body if the data subject so expressly wishes and if permitted by national law.

    Clause 4

    Obligations of the data exporter

    The data exporter agrees and warrants:

    (a) that the processing, including the transfer itself, of the personal data has been and will continue to be carried out in accordance with the relevant provisions of the applicable data protection law (and, where applicable, has been notified to the relevant authorities of the Member State where the data exporter is established) and does not violate the relevant provisions of that State;

    (b) that it has instructed and throughout the duration of the personal data processing services will instruct the data importer to process the personal data transferred only on the data exporter’s behalf and in accordance with the applicable data protection law and the Clauses;

    (c) that the data importer will provide sufficient guarantees in respect of the technical and organisational security measures specified in Appendix 2 to this contract;

    (d) that after assessment of the requirements of the applicable data protection law, the security measures are appropriate to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing, and that these measures ensure a level of security appropriate to the risks presented by the processing and the nature of the data to be protected having regard to the state of the art and the cost of their implementation;

    (e) that it will ensure compliance with the security measures;

    (f) that, if the transfer involves special categories of data, the data subject has been informed or will be informed before, or as soon as possible after, the transfer that its data could be transmitted to a third country not providing adequate protection within the meaning of Directive 95/46/EC;

    (g) to forward any notification received from the data importer or any subprocessor pursuant to Clause 5(b) and Clause 8(3) to the data protection supervisory authority if the data exporter decides to continue the transfer or to lift the suspension;

    (h) to make available to the data subjects upon request a copy of the Clauses, with the exception of Appendix 2, and a summary description of the security measures, as well as a copy of any contract for subprocessing services which has to be made in accordance with the Clauses, unless the Clauses or the contract contain commercial information, in which case it may remove such commercial information;

    (i) that, in the event of subprocessing, the processing activity is carried out in accordance with Clause 11 by a subprocessor providing at least the same level of protection for the personal data and the rights of data subject as the data importer under the Clauses; and

    (j) that it will ensure compliance with Clause 4(a) to (i).

    Clause 5

    Obligations of the data importer2

    The data importer agrees and warrants:

    (a) to process the personal data only on behalf of the data exporter and in compliance with its instructions and the Clauses; if it cannot provide such compliance for whatever reasons, it agrees to inform promptly the data exporter of its inability to comply, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;

    (b) that it has no reason to believe that the legislation applicable to it prevents it from fulfilling the instructions received from the data exporter and its obligations under the contract and that in the event of a change in this legislation which is likely to have a substantial adverse effect on the warranties and obligations provided by the Clauses, it will promptly notify the change to the data exporter as soon as it is aware, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;

    (c) that it has implemented the technical and organisational security measures specified in Appendix 2 before processing the personal data transferred;

    (d) that it will promptly notify the data exporter about:

    (i) any legally binding request for disclosure of the personal data by a law enforcement authority unless otherwise prohibited, such as a prohibition under criminal law to preserve the confidentiality of a law enforcement investigation,

    (ii) any accidental or unauthorised access, and

    (iii) any request received directly from the data subjects without responding to that request, unless it has been otherwise authorised to do so;

    (e) to deal promptly and properly with all inquiries from the data exporter relating to its processing of the personal data subject to the transfer and to abide by the advice of the supervisory authority with regard to the processing of the data transferred;

    (f) at the request of the data exporter to submit its data processing facilities for audit of the processing activities covered by the Clauses which shall be carried out by the data exporter or an inspection body composed of independent members and in possession of the required professional qualifications bound by a duty of confidentiality, selected by the data exporter, where applicable, in agreement with the supervisory authority;

    (g) to make available to the data subject upon request a copy of the Clauses, or any existing contract for subprocessing, unless the Clauses or contract contain commercial information, in which case it may remove such commercial information, with the exception of Appendix 2 which shall be replaced by a summary description of the security measures in those cases where the data subject is unable to obtain a copy from the data exporter;

    (h) that, in the event of subprocessing, it has previously informed the data exporter and obtained its prior written consent;

    (i) that the processing services by the subprocessor will be carried out in accordance with Clause 11;

    (j) to send promptly a copy of any subprocessor agreement it concludes under the Clauses to the data exporter.

    Clause 6

    Liability

    1. The parties agree that any data subject, who has suffered damage as a result of any breach of the obligations referred to in Clause 3 or in Clause 11 by any party or subprocessor is entitled to receive compensation from the data exporter for the damage suffered.

    2. If a data subject is not able to bring a claim for compensation in accordance with paragraph 1 against the data exporter, arising out of a breach by the data importer or his subprocessor of any of their obligations referred to in Clause 3 or in Clause 11, because the data exporter has factually disappeared or ceased to exist in law or has become insolvent, the data importer agrees that the data subject may issue a claim against the data importer as if it were the data exporter, unless any successor entity has assumed the entire legal obligations of the data exporter by contract of by operation of law, in which case the data subject can enforce its rights against such entity.

    The data importer may not rely on a breach by a subprocessor of its obligations in order to avoid its own liabilities.

    3. If a data subject is not able to bring a claim against the data exporter or the data importer referred to in paragraphs 1 and 2, arising out of a breach by the subprocessor of any of their obligations referred to in Clause 3 or in Clause 11 because both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, the subprocessor agrees that the data subject may issue a claim against the data subprocessor with regard to its own processing operations under the Clauses as if it were the data exporter or the data importer, unless any successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law, in which case the data subject can enforce its rights against such entity. The liability of the subprocessor shall be limited to its own processing operations under the Clauses.

    Clause 7

    Mediation and jurisdiction

    1. The data importer agrees that if the data subject invokes against it third-party beneficiary rights and/or claims compensation for damages under the Clauses, the data importer will accept the decision of the data subject:

    (a) to refer the dispute to mediation, by an independent person or, where applicable, by the supervisory authority;

    (b) to refer the dispute to the courts in the Member State in which the data exporter is established.

    2. The parties agree that the choice made by the data subject will not prejudice its substantive or procedural rights to seek remedies in accordance with other provisions of national or international law.

    Clause 8

    Cooperation with supervisory authorities

    1. The data exporter agrees to deposit a copy of this contract with the supervisory authority if it so requests or if such deposit is required under the applicable data protection law.

    2. The parties agree that the supervisory authority has the right to conduct an audit of the data importer, and of any subprocessor, which has the same scope and is subject to the same conditions as would apply to an audit of the data exporter under the applicable data protection law.

    3. The data importer shall promptly inform the data exporter about the existence of legislation applicable to it or any subprocessor preventing the conduct of an audit of the data importer, or any subprocessor, pursuant to paragraph 2. In such a case the data exporter shall be entitled to take the measures foreseen in Clause 5 (b).

    Clause 9

    Governing Law

    The Clauses shall be governed by the law of the Member State in which the data exporter is established, namely England and Wales

    Clause 10

    Variation of the contract

    The parties undertake not to vary or modify the Clauses. This does not preclude the parties from adding clauses on business related issues where required as long as they do not contradict the Clause.

    Clause 11

    Subprocessing

    1. The data importer shall not subcontract any of its processing operations performed on behalf of the data exporter under the Clauses without the prior written consent of the data exporter. Where the data importer subcontracts its obligations under the Clauses, with the consent of the data exporter, it shall do so only by way of a written agreement with the subprocessor which imposes the same obligations on the subprocessor as are imposed on the data importer under the Clauses3. Where the subprocessor fails to fulfil its data protection obligations under such written agreement the data importer shall remain fully liable to the data exporter for the performance of the subprocessor’s obligations under such agreement.

    2. The prior written contract between the data importer and the subprocessor shall also provide for a third-party beneficiary clause as laid down in Clause 3 for cases where the data subject is not able to bring the claim for compensation referred to in paragraph 1 of Clause 6 against the data exporter or the data importer because they have factually disappeared or have ceased to exist in law or have become insolvent and no successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law. Such third-party liability of the subprocessor shall be limited to its own processing operations under the Clauses.

    3. The provisions relating to data protection aspects for subprocessing of the contract referred to in paragraph 1 shall be governed by the law of the Member State in which the data exporter is established, namely England and Wales.

    4. The data exporter shall keep a list of subprocessing agreements concluded under the Clauses and notified by the data importer pursuant to Clause 5 (j), which shall be updated at least once a year. The list shall be available to the data exporter’s data protection supervisory authority.

    Clause 12

    Obligation after the termination of personal data processing services

    1. The parties agree that on the termination of the provision of data processing services, the data importer and the subprocessor shall, at the choice of the data exporter, return all the personal data transferred and the copies thereof to the data exporter or shall destroy all the personal data and certify to the data exporter that it has done so, unless legislation imposed upon the data importer prevents it from returning or destroying all or part of the personal data transferred. In that case, the data importer warrants that it will guarantee the confidentiality of the personal data transferred and will not actively process the personal data transferred anymore.

    2. The data importer and the subprocessor warrant that upon request of the data exporter and/or of the supervisory authority, it will submit its data processing facilities for an audit of the measures referred to in paragraph 1.

    On behalf of the data exporting organisation:
    Client,
    On behalf of the data importing organisation:
    Traction Digital Limited
    Client,Name: Adam Quirk
    Position: Managing Director
    Contacts.: as supplied in account detailsAddress: Fourth Floor, 1 Rivington Place, London EC2A 3BA, United Kingdom
    Other information necessary in order for the contract to be binding (if any):Other information necessary in order for the contract to be binding (if any):
    Signature:Signature:

    APPENDIX 1 TO THE STANDARD CONTRATUAL CLAUSES

    This Appendix forms part of the Clauses and must be completed and signed by the parties.

    The Member States may complete or specify, according to their national procedures, any additional necessary information to be contained in this Appendix.

    Data exporter

    The data exporter is (please specify briefly your activities relevant to the transfer): the Client

    The Data Exporter is engaging with its audience via one or many digital channels (e.g. web, email, SMS, WAP) with the objective of collecting and/or disseminating data originating from the data subject, itself or a third party.

    Data importer

    The data importer is: Traction Digital
    The Data Importer is providing a hosting environment, an Application Service Provider (ASP) (Traction Services) and a software platform (Platform) to store the data collected by the Data Exporter. The Platform facilitates the exchange of data between the data subjects and the Data Exporter. The usage of that data is under the sole control of the Data Exporter.

    Data subjects

    The personal data transferred concern the following categories of data subjects :

    Any personal data transferred is within the full control of the Data Exporter.

    Categories of data

    Any personal data transferred is within the full control of the Data Exporter. Typically, data collected may entail customer profile data designed by the Data Exporter, customer interactions within a function of the Platforms (e.g. recording of competition entry and prize win, emails sent to a consumer in accordance with their permission or on a soft opt-in basis, completion of web surveys by data subjects).

    Special categories of data

    The personal data transferred concern the following special categories of data:

    The determination of sensitive personal data categories, if any, is under the sole control of the Data Exporter.

    Processing operations

    The personal data transferred will be subject to the following basic processing activities:

    Processing activities entail the storage of data received through activities controlled by the Data Exporter, the integration of the data by the Data Exporter and the interaction with the data subject by the Data Exporter based on the stored data.

    On behalf of the data exporting organisation:
    Client,
    On behalf of the data importing organisation:
    Traction Digital Limited
    Name (written out in full):Name: Adam Quirk
    Signature:Signature:

    APPENDIX 2 TO THE STANDARD CONTRACTUAL CLAUSES

    This Appendix forms part of the Clauses and must be completed and signed by the parties.

    Description of the technical and organisational security measures implemented by the data importer in accordance with Clauses 4(d) and 5(c) (or document/legislation attached):

    The technical organisation and security measures implemented by the Data Importer in accordance with clauses 4d and 5c are as follows: Access to the data by the Data Exporter is restricted by use of username and passwords along with security access levels. All Data Importer interaction with the data requires username and password and is performed over a secure connection.

    The data is held in an Oracle database on locked down servers behind a firewall and in a secure data centre. Access to the data is only available to the Data Importer or the Data Exporter through the authorised use of the platform. To protect against loss of or damage to the data, the data is backed up every four hours on equipment with redundancy capabilities.

    For the avoidance of doubt, the Data Importer will never interact with data that belongs to the Data Exporter unless explicitly instructed to do so by the Data Exporter, except any handling of data necessary in the course of maintaining and enhancing the Platform.

    INDEMNIFICATION CLAUSE

    Liability

    1.1 The parties agree that if one party is held liable for a violation of the clauses committed by the other party, the latter will, to the extent to which it is liable, indemnify the first party for any cost, charge, damages, expenses or loss it has incurred.

    Indemnification is contingent upon:

    a) the data exporter promptly notifying the data importer of a claim; and

    b) the data importer being given the possibility to cooperate with the data exporter in the defence and settlement of the claim.

    1.2 Any liability arising out of or related to this Agreement between the parties is subject to the value of the Services supplied to the Client in the previous month.


    1 Parties may reproduce definitions and meanings contained in Directive 95/46/EC within this Clause if they considered it better for the contract to stand alone.
    2 Mandatory requirements of the national legislation applicable to the data importer which do not go beyond what is necessary in a democratic society on the basis of one of the interests listed in Article 13(1) of Directive 95/46/EC, that is, if they constitute a necessary measure to safeguard national security, defence, public security, the prevention, investigation, detection and prosecution of criminal offences or of breaches of ethics for the regulated professions, an important economic or financial interest of the State or the protection of the data subject or the rights and freedoms of others, are not in contradiction with the standard contractual clauses. Some examples of such mandatory requirements which do not go beyond what is necessary in a democratic society are, inter alia, internationally recognised sanctions, tax-reporting requirements or anti-money-laundering reporting requirements.
    3 This requirement may be satisfied by the subprocessor co-signing the contract entered into between the data exporter and the data importer under this Decision

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