Last Updated: November 4, 2019
Access to FocusVision Services, including but not limited to, FocusVision’s Decipher Survey Tool (“Decipher”), Kinesis Panel Management Tool (“Kinesis”), Research Services, Revelation Online Qualitative Research Platform (“Revelation”), videostreaming via FV360 Live, FV Classic Live, and Classic Plus (collectively, “Live Video”), InterVu, FV Video Insights, and ResearchReporter, are provided by FocusVision Worldwide, Inc. This Agreement shall govern the use of all FocusVision Proprietary Software and Services unless specifically noted otherwise in this Agreement.
For purposes of this Agreement, “FocusVision” shall mean FocusVision Europe Ltd. and its affiliates and subsidiaries and their officers, directors, managing directors, partners, and employees. FocusVision’s group members can enforce this agreement against Client; FocusVision can recover damages on behalf of Client’s group members; all of the FocusVision parties benefit from Client’s indemnity protection; the person accessing the services accepts these terms on behalf of their organization – being Client; Client must ensure that all individuals accessing the services comply with these terms; and if any other entity uses the Services, they are required to agree to these terms under a separate contract. The term “Client” as used herein refers to you and all individuals and/or entities accessing the Services for any reason.
The terms of this Agreement, together with the Acceptable Use Policy, any product specific terms, Data Processing Addenda, and the Service Order to which it applies (together the “Agreement”) describe your rights and responsibilities and state the terms and conditions under which you may use the Services. [PLEASE READ THIS DOCUMENT CAREFULLY. BY USING OR CONTINUING TO USE THE SERVICES, YOU ARE INDICATING YOUR ACCEPTANCE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT BETWEEN YOU AND FOCUSVISION. IF YOU DO NOT ACCEPT THE TERMS AND CONDITIONS STATED IN THIS AGREEMENT, FOCUSVISION IS NOT WILLING TO ALLOW YOU TO USE THE SERVICES AND YOU SHOULD IMMEDIATELY STOP USING THE SERVICES.]
As used herein, the following terms will have the following meanings:
1.1 “Authorized Users” means the employees of Client or the independent contractors of Client who are permitted to use the Services pursuant to Article 2.2.
1.2 “Confidential Information” means any and all information in whatever form, whether disclosed orally or in writing and whether eye readable or machine readable, (a) that is made available by one Party (in such capacity the “Disclosing Party”) to the other Party (in such capacity the “Receiving Party”) or which is gained by the visit by the Receiving Party to any premises of the Disclosing Party, whether before or after the Effective Date; and (b) which by its nature is confidential or ought to be recognized as confidential or proprietary, even if not marked with “Confidential” or “Proprietary” or words of similar import. Confidential Information includes, without limitation, specifications (including the Specifications) and technical literature, financial or commercial information, this Agreement, the Deliverables, the Proprietary Software, all Improvements, and the Documentation. Confidential Information excludes information which is (a) known to the Receiving Party prior to disclosure without an obligation of confidentiality, (b) rightfully obtained by the Receiving Party without restriction from a third party, (c) already within the public domain, or (d) developed by the Receiving Party without reference to or use of the Disclosing Party’s Confidential Information.
1.3 “Deliverables” means the reports, data, materials, physical media, information, goods and other work product of any Services provided under the Agreement.
1.4 “Documentation” means documentation, help files, Client manuals, handbooks, or other written or electronic material provided by FocusVision to Client in relation to the Services, as revised from time to time by FocusVision.
1.5 “Effective Date” means the date set out in the Agreement that will be the date on which the Services will commence.
1.6 “Helpdesk Services” means maintenance, updates, assistance with e-mail sends, and technical support services that are provided to Client by FocusVision, pursuant to such services being referenced to in the Agreement, if applicable.
1.7 “Helpdesk Services Fees” means all amounts payable by Client to FocusVision on account of Helpdesk Services in accordance with the terms of the Agreement.
1.8 “Helpdesk Services Term” means the term for the Helpdesk Services, as set out in the Agreement, commencing upon the Effective Date unless otherwise specified in the Agreement.
1.9 “Hosting Infrastructure” means the hosting and network infrastructure provided by FocusVision or the Hosting Partner in connection with the provision of the Hosting Services.
1.10 “Hosting Partner” means such third-party server hosting and network infrastructure provider as FocusVision may designate from time to time.
1.11 “Hosting Services” means hosting services to be provided to Client by FocusVision pursuant to the Agreement.
1.12 “Improvements” means all improvements or other modifications to the Proprietary Software, the Services, the Deliverables, or the Documentation.
1.13 “IP” means all types of intellectual property, whether or not capable of being registered, including but not limited to works of authorship, copyrights, inventions, discoveries, patents, semi-conductor topography rights, trademarks, trade or business names, domain names, website addresses, trade secrets, database rights, know-how, the ‘look and feel’ of websites and mobile apps, methodologies, algorithms, formats, software, source code, tools , data structures, and design rights and protocols.
1.14 “IP Rights” means all rights anywhere in the world (whether statutory, common or otherwise and whether registered or unregistered) relating to, arising from, or associated with IP.
1.15 “Party” means Client or FocusVision, as the context requires, and “Parties” means Client and FocusVision.
1.16 “Proprietary Software” means the Decipher Survey Tool (“Decipher”), Kinesis Panel Management Tool (“Kinesis”), Research Services, Revelation Online Qualitative Research Platform (“Revelation”), ResearchReporter, or any other proprietary software of FocusVision described in the Agreement, including any Improvements provided to Client, and all files or materials accompanying the Proprietary Software.
1.17 “Services” means access to and use of any Proprietary Software, Hosting Services, Helpdesk Services for Decipher, videostreaming via FV360 Live, FV Classic Live, and Classic Plus (collectively, “Live Video”), InterVu, FV Video Insights, or any other product or support services provided by FocusVision to Client under the Agreement.
1.18 “Specifications” means the functional specifications applicable to the Proprietary Software, as set out in the Documentation.
1.19 “Taxes” means all VAT, sales, excise, withholding or other taxes imposed on the sale, provision or use of the Services or the Deliverables, other than FocusVision’s income taxes and property taxes on the equipment used by FocusVision to provide the Services or the Deliverables.
1.20 “Term” means the term for which any right to use the Proprietary Software and/or Services is granted hereunder, as applicable, or any extensions thereto.
1.21 “Usage” means the use granted to Client in the Proprietary Software pursuant to Article 2.1.
USE OF SERVICES/SOFTWARE
2.1 FocusVision grants to Client, subject to the terms and conditions of the Agreement, the restricted, time-limited, non-exclusive, non-transferable and non-assignable right to access via the Internet and use the Proprietary Software or Services. Client is not granted any license or right to use any other IP or IP Rights that FocusVision may own, have licensing rights to, or otherwise control.
2.2 Client may grant access to use the Proprietary Software or Services to its independent contractors in the ordinary course of business for the purpose of the independent contractors providing services to Client (and not for any contractor’s independent use or use for the benefit of any third party). At FocusVision’s request at any time during the Term, Client shall promptly provide FocusVision with a list that sufficiently identifies the independent contractors Client has authorized pursuant to this Article 2.2.
2.3 Client shall acquire no title or ownership to the Proprietary Software, the Services, Improvements, or the Documentation, the IP Rights in all of which are and will remain owned by FocusVision. For the avoidance of doubt, except as expressly provided in Article 4.5, FocusVision shall own all IP Rights with respect to any Improvements or IP created from the provision of any Services or Deliverables under the Agreement.
2.4 Without limiting any of its other rights, FocusVision reserves the rights to restrict all uses of the Proprietary Software and Services to assure compliance by Client and Authorized Users who have access to the Proprietary Software and Services and are not in compliance with the terms and conditions of this Agreement during the period of such non-compliance.
2.5 Except as expressly provided otherwise in this Agreement or the Documentation, Client will not (i) modify, copy or create any derivative works based on the Proprietary Software, Services, or Documentation; (ii) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share, offer in a service bureau, or otherwise make the Proprietary Software, Services, or Documentation available to any third party; (iii) reverse engineer or decompile any portion of the Proprietary Software or Documentation, including but not limited to, any software procured and utilized by FocusVision in the provision of the Proprietary Software and Documentation, except to the extent required by Law; (iv) access the Proprietary Software, Services, or Documentation in order to build any commercially available product or service that infringes or misappropriates FocusVision’s IP Rights; (v) knowingly send or store infringing, obscene, threatening, or otherwise unlawful or tortious material, including material that violates privacy rights or material for which Client is not authorized to use, using the Proprietary Software or Services; (vi) knowingly send or store malicious code in connection with the Proprietary Software; or (vii) maliciously interfere with or disrupt performance of the Proprietary Software or the data contained therein.
2.6 With respect to access to and use of the Proprietary Software, if any unauthorized use is made of the Proprietary Software and such use is attributable to any act or omission of Client, then, without prejudice to FocusVision’s other rights and remedies, FocusVision will have the right to require that Client immediately pay to FocusVision an amount equal to the Fees FocusVision would have collected had the Agreement originally included such unauthorized use. Client will immediately notify FocusVision if it suspects or becomes aware of any such unauthorized use, and will cooperate with FocusVision in investigating and resolving the situation. For clarity (i) a third party (other than an independent contractor permitted pursuant to Article 2.2) that is granted access by Client to program a survey is considered an unauthorized user under this Article, and (ii) a third party that is granted access by Client solely to complete a survey or view survey results is not considered an unauthorized user under this Article.
2.7 Acceptable Use Policy. Client agrees to comply with all applicable laws regarding when accessing or using the Proprietary Software or Services and agrees to adhere to FocusVision’s acceptable use policy (the “AUP”) found here: https://www.focusvision.com/fv-acceptable-use-policy/.
2.8 Client shall not use the Proprietary Software or Services for any use (or in any jurisdiction) prohibited by applicable export control laws.
3.1 All provisions governing Helpdesk Services, Helpdesk Services Fees, and Helpdesk Services Term, if applicable, will be specified in the product specific additional terms and conditions for each Service, and only to the extent that Client has purchased Helpdesk Services pursuant to this Agreement.
4.1 The provisions of this Article 4 apply to any use of the Proprietary Software requiring Hosting Services.
4.2 FocusVision will provide the Hosting Services to Client for the Term as specified in this Agreement, subject to the terms and conditions set forth herein. FocusVision shall use commercially reasonable efforts to ensure the Hosting Partner provides reasonable access, in accordance with this Agreement, for purposes of utilizing the Proprietary Software in accordance with the scope of this Agreement.
4.3 During the Term, FocusVision will perform the Hosting Services substantially in accordance with the service levels and the technical standards applicable to the Agreement.
4.4 Client agrees that in its use of the Hosting Services, it will: (i) use its own hardware and software to access the Hosting Infrastructure; (ii) be responsible for controlling its own account including creating a strong password and protecting that password and preventing unauthorized access to its account; (iii) be responsible for performing its own backups of any data exported from the Hosting Infrastructure; and (iv) be responsible for, and will pay to FocusVision, all applicable charges for the completion of data recovery requests to restore any Client data lost due to the failure of Client’s servers and/or computers.
4.5 Client shall own all Client customer data, survey responses, survey results, and any data derived from Client’s use of the Proprietary Software (“Client’s Primary Data”). Client warrants that it has obtained all rights, consents and permissions necessary to use and input Client’s Primary Data into the Proprietary Software and to grant the rights to FocusVision set forth in this Agreement. Without limiting FocusVision’s ability to terminate for Client’s material breach of its warranty in this Article 4.5 pursuant to Article 8.2, Client agrees to defend, indemnify and hold FocusVision and its respective directors, officers, employees, agents and contractors, harmless from any loss, damage or liability that may result from breach of such warranty or otherwise arising from FocusVision’s use of the Client’s Primary Data as envisaged by this Agreement. FocusVision shall own any data derived or generated from (i) processing of Client’s Primary Data or (ii) any monitoring or other observation of Client’s and Authorized Users’ use of the Proprietary Software and Services, which includes but is not limited to metadata such as dropout rates and types of devices used by respondents (excluding, in each case, any Client Content) (collectively, “Secondary Data”) . Client hereby grants to FocusVision a limited license to (i) copy, store, back-up, view, and archive Client’s Primary Data, and to store Client’s Primary Data with the Hosting Partner, and (ii) use Client Content to create, develop or modify (a) Secondary Data or (b) future Services or Improvements to Services provided by FocusVision.
4.6 The Hosting Services will expire upon expiration of the Term or earlier termination of this Agreement in accordance with its terms, as the case may be.
4.7 Three (3) months following the expiration of the Term, FocusVision may permanently destroy any of Client’s data, including Client’s Primary Data, remaining on the Hosting Infrastructure, provided, however, that if Client has requested a copy of Client’s data, in writing to FocusVision within thirty (30) days of the expiration of the Term, FocusVision shall provide to Client a copy of any remaining data in raw format, or other mutually agreeable format, upon payment by Client of FocusVision’s standard charges for such assistance. Upon written request from Client, FocusVision shall use commercially reasonable efforts to destroy data within fifteen (15) business days of such request.
PRICE AND PAYMENTS
5.1 Client will pay FocusVision the applicable fees due under this Agreement, including without limitation any Helpdesk Services Fees (collectively, the “Fees”) in the amount of and as set forth in each applicable Service Order.
5.2 In addition to the Fees, FocusVision will invoice Client for its reasonable and necessary travel and other out-of-pocket expenses incurred in providing the Services. An estimate of such expenses will be provided to Client for prior approval.
5.3 No additional terms and conditions in any purchase order or similar document provided by Client will become part of the Agreement, and all such terms are hereby rejected by FocusVision.
5.4 All invoices for Fees and expenses will be due and payable, without any setoff, deduction or withholding whatsoever, no later than thirty (30) calendar days after the date of the invoice (the “Due Date”), unless otherwise specified in the Service Order. If payment is not made in full by the Due Date, FocusVision may, at its option and without limiting any other rights it might have under the Agreement or under the law, be entitled to suspend provision of the Services following fifteen (15) days written notice of nonpayment, unless payment is received during such fifteen (15) day period, without the suspension being considered as a termination of the Agreement.
5.5 All Fees are exclusive of Taxes, and FocusVision will endeavor to include any Taxes as a separate line item on a Service Order or its invoices. Client will be responsible for the payment of all Taxes.
5.6 If any sum due for payment under or in accordance with the provisions of this Agreement is not paid on the Due Date, the Client shall pay interest on such sum from the Due Date until the date of actual payment (whether before or after judgment) at the rate of four per cent ([4%]) above the base rate of Barclays Bank plc from time to time, such interest to accrue on a day to day basis. The Parties acknowledge that this amounts to a substantial remedy for late payment.
6.1 Subject to the limited licenses granted herein, FocusVision shall own and retain all right, title and interest in and to the Proprietary Software, the Services, the Documentation, and all Secondary Data, as well as any and all Deliverables or work product provided under this Agreement, including all Improvements, derivative works and feedback related thereto and IP Rights therein. Client hereby assigns with full title guarantee and free from all encumbrances all right, title and interest it may have in the foregoing (the “Client Accrued Rights”) to FocusVision together with the right to sue for and recover damages or other relief in respect of the infringement of any FocusVision. Such assignment shall take effect as a present assignment of future rights and any licences thereto granted under this Agreement shall take effect as a present grant of a licence of future rights. At FocusVision’s request, the Client shall execute (or procure the execution of) any document and/or do anything else necessary to give full effect to the assignment under this Article. To the extent that copyright may not be assigned in any jurisdiction, the Client instead grants FocusVision an irrevocable, exclusive, worldwide, paid-up, perpetual, royalty-free and transferable licence to use, copy, modify, distribute and commercially exploit copyright that forms part of the Client Accrued Rights. The Client shall, to the fullest extent permitted by applicable law, procure that any persons who are entitled to moral rights, rights of authorship or similar or equivalent rights which exist or may arise in relation to the Client Accrued Rights anywhere in the world, shall unconditionally and irrevocably waive all such rights in favour of FocusVision.
6.2 Subject to the limited licenses granted herein, Client shall own and retain ownership and IP Rights in and to the Client’s Primary Data. Third party technology that may be appropriate or necessary for use with some FocusVision programs will be specified in the Documentation. Client’s right to use such third party technology is governed by the terms of the third party technology license agreement specified by FocusVision and not under this Agreement. The Client grants to FocusVision a worldwide, fully paid-up, non-exclusive, sub-licensable licence to copy and modify any Client Primary Data for the purpose of providing the Services to the Client and as otherwise set out under this Agreement.
6.3 Client hereby grants to FocusVision a royalty-free, worldwide, irrevocable, perpetual and sublicenseable license to use on an anonymous basis and incorporate into the Proprietary Software and/or Services any suggestions, enhancement requests, recommendation or other feedback provided by Client, including its Authorized Users, relating to the Proprietary Software and/or Services.
WARRANTIES AND DISCLAIMERS
7.1 Each Party warrants that it is fully authorized to enter into this Agreement, that the execution and delivery of this Agreement has been duly authorized, and that its performance hereunder does not breach any other agreement or covenant to which it is a party or is bound. Neither Party shall make any warranty on the other Party’s behalf to any third party.
7.2 FocusVision warrants that for all Proprietary Software, during the Term, the Services will be performed in material compliance with the Documentation, and in accordance with any service levels provided in product-specific terms. Client’s sole and exclusive remedy for breach of any of the foregoing warranties will be for FocusVision to use reasonable efforts to repair such nonconformities within a reasonable time after Client provides notice to FocusVision of such breach and, if the breach relates to a software error, after FocusVision receives sufficient information to replicate the error. If this exclusive remedy is unenforceable for any reason, then the limitation of liability provisions set forth herein will apply to any resulting liability.
7.3 FocusVision does not warrant that the Services or the Deliverables will meet Client’s requirements or that the Services provided under this Agreement will be error free or operate without interruption. Any liability that FocusVision may have under this Agreement will be subject to the limitation of liability provisions set forth herein.
7.4 Except as expressly set forth herein or in the Agreement, all conditions, warranties, terms and undertakings, express or implied, statutory or otherwise, are hereby excluded to the extent permitted by law, including but not limited to any implied warranties of title, merchantability, satisfactory quality, non-infringement or fitness for a particular purpose. In particular, any and all warranties arising in law or from course of dealing, course of performance, or use of trade are expressly excluded. The warranty in Article 7.2 is a limited warranty and is the only warranty made by FocusVision. Client hereby disclaims any reliance on any warranty or representation not expressly set forth in this agreement.
7.5 FocusVision may suspend or discontinue the performance of any Services upon written notice if, in its reasonable judgment, the performance of such Services would violate any applicable law, rule or regulation. Such action shall not constitute a default under this Agreement and the Parties will use commercially reasonable efforts to implement an alternative method to providing the affected Services.
TERM AND TERMINATION OF AGREEMENT
8.1 The Term of this Agreement shall begin on the Effective Date and continue for as long as Client has any active Service Orders. Upon the termination or expiration of this Agreement, for whatever reason, FocusVision will cease to provide any of the Services.
8.2 Either Party may terminate the Agreement upon immediate written notice if the other party commits an irremediable material breach of this Agreement or if the other party fails to cure a remediable material breach within thirty (30) calendar days following the date of written notice given by the terminating party specifying the nature of the breach.
8.3 FocusVision reserves the right to suspend the Services immediately, in whole or in part, followed by notice to Client, if Client fails to comply with any terms of the AUP. In addition, FocusVision reserves the right to suspend Client’s access to the Proprietary Software if FocusVision reasonably concludes that Client’s use thereof is causing, or has a significant likelihood of causing, immediate harm to FocusVision or others, or is violating an applicable law. In the case that FocusVision suspends access to the Proprietary Software or Services under this Article, FocusVision shall promptly notify Client of the suspension and the Parties shall attempt to resolve the issue. FocusVision shall not be liable to Client or to any third party for any liabilities, claims or expenses arising from or relating to any suspension of the Proprietary Software or Services in accordance with this Article. Nothing in this Article will limit FocusVision’s rights as set forth in this Agreement.
8.4 Either Party may terminate the Agreement immediately upon notice to the other Party if the other Party: (i) becomes the subject of any order or other process calling for the appointment of a receiver, administrator, trustee, nominee or other similar official; (ii) is wound up or dissolved, becomes or is declared insolvent; (iii) is involved as a debtor, voluntarily or involuntarily, in any proceeding for relief under the Federal Bankruptcy Code (or any statutory re-enactment or modification thereof); or (iv) ceases to or threatens to cease to carry on all or a substantial part of its business.
8.5 Termination or expiration of this Agreement will not prejudice any rights of either Party which have arisen on or before the date of termination or expiration. If this Agreement is terminated due to FocusVision’s breach, FocusVision will refund to Client any prepaid Fees on a prorated basis.
8.6 In the event of expiration or termination of this Agreement, all outstanding payment obligations as well as the following provisions of this Agreement shall survive and continue in effect and shall inure to the benefit of and be binding upon the parties: Articles 1, 6, 7.4, 8.7, 9.4, 9.5, 10, 12, 13, 14 and 15.
INDEMNIFICATION AND LIMITATION OF LIABILITY
9.1 FocusVision will defend, indemnify (including settling at its own expense) and hold Client harmless from and against any third-party claim that the Proprietary Software or Services or the utilization of the Deliverables infringes any third-party IP Rights enforceable in the United States (an “Indemnity Claim”). FocusVision’s defense and indemnity obligation is subject to the following conditions precedent: (i) the Indemnity Claim must not result from or be attributable to the breach of the Agreement by Client; and (ii) the Indemnity Claim must not arise from or be based on a modification of the Proprietary Software or Services, or any combination of the Proprietary Software with any other software. In relation to any Indemnity Claim: (a) the Client shall give FocusVision prompt written notice of the Indemnity Claim; (b) FocusVision shall have exclusive control of the defense of the Indemnity Claim; and (c) the Client shall cooperate in the defense of the Indemnity Claim and provide all information in their possession or control that may be requested by FocusVision, at FocusVision’s expense. In the event of an Indemnity Claim subject to this paragraph, FocusVision may, at its option, either procure the right to continue providing the Services, replace or modify the Services to make it non-infringing, or if neither of the foregoing is reasonably feasible in FocusVision’s opinion, FocusVision may terminate this Agreement immediately without any further liability to Client other than to refund to Client the unearned portion of any Fees paid in advance.
9.2 FocusVision shall not have any liability for any Indemnity Claim if such Indemnity Claim is based on (i) use of other than the latest release of the Services provided to Client by FocusVision, (ii) use or combination of the Services, Proprietary Software or Deliverables with programs or data not provided by FocusVision, (iii) modification to the Services, Proprietary Software or Deliverables not made by FocusVision, or (iv) compliance with Client’s instructions relating to such Services, Proprietary Software or Deliverables.
9.3 Client’s access to the Proprietary Software and Services may be subject to limitations, delays or other disruptions inherent to the use of the Internet or otherwise outside of the reasonable control of FocusVision. In no event shall FocusVision be in breach of this Agreement or liable for any damages (whether in contract or in tort) arising from any delays or disruptions in the Proprietary Software or Services: (i) attributable to the Internet or other causes outside of the reasonable control of FocusVision, (ii) caused by Client’s inability to connect to the Internet or (iii) relating to service or other downtimes permitted by this Agreement.
9.4 Client expressly acknowledges and agrees that installation and use of the API and/or the Services is at Client’s sole risk. To the maximum extent permitted by applicable law and except as expressly set out in this Agreement, the API and/or the FocusVision Services are provided “as-is,” with any and all faults and without any express, or implied terms, conditions, warranties or undertakings of any kind.
9.5 Except with respect to breaches of Article 10 (Confidential Information), the total aggregate liability of FocusVision arising from or relating to this Agreement, the Services, use of the Deliverables or FocusVision’s breach of this Agreement, however caused and whether the claim arises in contract, tort (including negligence), breach of warranty, strict liability or other theory of liability, will, to the maximum extent permitted by law, be limited to direct damages actually incurred and will not exceed the greater of £25,000 GBP and:
(a) the amount of the fees collected by FocusVision for the specific Services giving rise to the liability during the twelve-month period preceding the claim and
(b) with respect to a breach of Article 10 (Confidential Information), the liability will not exceed two times the fees collected by FocusVision for the specific Services giving rise to the liability during the twelve-month period preceding the claim.
9.6 In no event will FocusVision have any liability for claims to the extent attributable to the acts or omissions of Client or any third party claiming through Client via indemnity or otherwise. All claims that Client has against FocusVision under this agreement will be aggregated to satisfy the limits set out in Article 9.5 above and multiple claims will not enlarge this limit.
9.6 Except with respect to breaches of Article 10 (Confidential Information) or violations of FocusVision’s IP Rights, in no event will either party be liable for any: (i) indirect, incidental, special or consequential damages, or (ii) damages for loss of profits, revenue, data or data use (in each case whether direct or indirect), even if the party is or was advised of the possibility of such damages and no matter how fundamental, including by reason of negligence.
9.7 Nothing in this Agreement shall limit either Party’s liability for: (i) death or personal injury caused by that party’s negligence; (ii) fraud or fraudulent misrepresentation; (iii) any other liability that cannot be limited or excluded by law.
10.1 The Receiving Party agrees to hold the Disclosing Party’s Confidential Information in strict confidence and not to disclose such Confidential Information to any third party or to use it for any purpose other than is specifically authorized in this Agreement or by Disclosing Party in writing. The Receiving Party agrees that it shall employ all reasonable steps to protect the Confidential Information of the Disclosing Party from unauthorized or inadvertent disclosure, including without limitation, steps that it takes to protect its own proprietary information; provided, however, that no less than a reasonable degree of care to protect data shall be maintained at all times. A Receiving Party will neither disclose the Disclosing Party’s Confidential Information to any third party nor use such Confidential Information in any manner not expressly permitted by the Agreement. Receiving Party will disclose the Disclosing Party’s Confidential Information to its employees, affiliates, contractors or agents (collectively “Representatives”) only on a “need to know” basis and only to those Representatives who are bound by written confidentiality obligations no less strict than those set forth in this Agreement. A Receiving Party will be responsible for any breach of these confidentiality obligations by its Representatives.
10.2 Notwithstanding the foregoing, a Receiving Party will be entitled to disclose a Disclosing Party’s Confidential Information as a result of governmental or legal requirements, provided that reasonable notice is first given to the Disclosing Party and all reasonable non-financial cooperation is given in order to allow the Disclosing Party to seek a protective order.
10.3 Notwithstanding the foregoing, each Party may reveal to third parties that a relationship exists between Client and FocusVision, without revealing the scope, content or any other Confidential Information related to the engagement.
10.4 If a Receiving Party discovers any actual or suspected misuse of, disclosure or loss of, or inability to account for any Confidential Information of the Disclosing Party, such Receiving Party shall promptly: (i) notify the Disclosing Party upon becoming aware thereof; (ii) furnish to the Disclosing Party full details of the unauthorized possession, use, or knowledge, or attempt thereof, and use reasonable efforts to assist Disclosing Party in investigating or preventing the reoccurrence of any unauthorized possession, use, or knowledge, or attempt thereof, of Confidential Information; (iii) take such actions as may be necessary or reasonably requested by the Disclosing Party to minimize the violation; and (iv) cooperate in all reasonable respects with the Disclosing Party to minimize the violation and any damage resulting therefrom.
11.1 .The Data Processing Addendum (“DPA”) at Appendix 1 governs the data protection responsibilities of the parties in respect of Personal Data processed pursuant to the Agreement. It is incorporated in full into the Agreement.
Notices under this Agreement must be in writing and may be served either personally (hand delivery) or by registered or certified mail, return receipt requested, to:FocusVision Worldwide, Inc.
Attn: Legal Dept.
7 River Park Place East, Suite 110
Fresno, CA 93720
With a copy to:FocusVision Worldwide, Inc.
5 Hanover Square,
5th floor Suite 502,
New York, New York 10004
And to Client at the address listed in its Service Order.
Any notice served personally will be deemed to have been received on the date delivered and any notice served by registered or certified mail shall be deemed to have been received two (2) business days after its mailing. Notwithstanding the foregoing, the Party serving notice also agrees to contact the other Party by telephone or e-mail if the message is time critical.
FocusVision may elect at its discretion to send any notices to Client with respect to modifications, changes, or alterations to the terms of the Agreement to the email address provided by Client in its Service Order.
Neither Party will knowingly and deliberately, directly or indirectly, solicit or recruit, either as an employee, agent, subcontract or independent contractor, any employees or contractors of the other Party during the Term and for twelve (12) months thereafter without the other Party’s prior written consent. This restriction will not apply where (as shown by written records or other evidence reasonably satisfactory to the other Party) the employee or contractor is employed as a result of an open market employment campaign without direct solicitation of the employee or contractor or if the employee or contractor is referred on an unsolicited basis by an employment agency.
FocusVision will not be held liable or responsible to Client, nor be deemed to have defaulted under or breached this Agreement, for failure or delay in fulfilling or performing any of its obligations under this Agreement to the extent, and for so long as, such failure or delay is caused by or results from causes beyond the reasonable control of FocusVision (a “Force Majeure Event”) including, but not limited to, any act of God, fire, natural disaster, accident, terrorism, war, cyberattack, acts of war (whether war be declared or not), insurrections, riots, civil commotion, strikes, lockouts or other labor disturbances or any acts, omissions or delays in activity by any governmental authority. If FocusVision is prevented or delayed in performing because of a Force Majeure Event, it will promptly notify Client of the circumstances giving rise to the Force Majeure Event and, if possible, provide a projected duration of the Force Majeure Event. If a Force Majeure Event continues for longer than thirty (30) days, either Party will thereafter have the option of terminating this Agreement immediately upon written notice to the other Party without any resulting liability for early termination.
15.1 This Agreement, including all appendices, attachments, Service Orders and any documents incorporated by hyperlink, constitutes the entire understanding between the Parties concerning the Services and, unless otherwise agreed, this Agreement supersedes and renders of no legal effect any prior agreement(s) with respect to the Services but will not be deemed a waiver of rights with respect to, or act to extinguish, any pending obligations arising from such prior agreement(s). No provision, right or obligation of or under this Agreement may be modified, or waived unless done pursuant to a writing signed by an authorized representative of each Party. In the event of any conflict between the terms of this Master Services Agreement and the terms of any Service Order, product specific terms, or Data Processing Addenda, the terms of this Master Services Agreement shall govern with the exception of payment of Fees as outlined in Article 5.4. Each party acknowledges and agrees that it does not rely on, and shall have no remedy in respect of, any promise, assurance, undertaking, representation or statement made (whether innocently or negligently) by any other party or any other person except as expressly set out in this Agreement, in respect of which its sole remedy shall be for breach of contract. Nothing in this Article 15.1 shall operate or be construed to exclude or limit any liability of any person for fraud, including fraudulent misrepresentation.
15.2 Nothing in this Agreement will create any association, partnership, joint venture, employer-employee or agent-principal relationship between the Parties.
15.3 The provisions of this Agreement that expressly or by implication are intended to survive its termination or expiration will survive and continue to bind both Parties.
15.4 If any provision of this Agreement is held to be invalid, the remaining provisions will remain in full force and effect.
15.5 This Agreement will be governed by and construed exclusively in accordance with the laws of England and Wales excluding its conflicts of law provisions. Any controversy or claim arising out of or relating to this contract, or the breach thereof, shall be determined by arbitration administered by the International Centre for Dispute Resolution in accordance with its International Arbitration Rules. The number of arbitrators shall be one (1). The place of arbitration shall be London, England. The language of the arbitration shall be English.
15.6 FocusVision is committed to fair competition and the rule of law, and it is FocusVision’s policy not to participate in bribes or corrupt activities of any nature. Client represents and warrants that it has exercised independent business judgment in purchasing or renewing FocusVision’s products, and has not been offered payments or other benefits to enter into this contract, except the contractual benefits set forth herein.
15.7 Client may not assign, delegate or transfer, by operation of law, merger, sale or otherwise, this Agreement or any of the rights or obligations hereunder, without the express prior written consent of FocusVision. Any assignment or transfer of this Agreement made in contravention of the terms hereof shall be null and void. Subject to the foregoing, this Agreement shall be binding on and inure to the benefit of the Parties’ respective successors and permitted assigns.
15.8 FocusVision shall be permitted to subcontract the performance of any Services to any third party provided that such arrangement shall not relieve FocusVision of any of its obligations hereunder and further that FocusVision shall be liable to Client for the acts and omissions of its subcontractors.
15.9 FocusVision has the right to change, modify, and otherwise convert the technology used to provide the Services and terms under which the Services are offered, provided that the basic functionality and quality of the Services will not be materially adversely affected.
15.10 The Parties agree that in all matters relating to this Agreement, each Party shall act as an independent contractor and shall not expressly or impliedly represent that it has any authority to assume or create any obligation on behalf of the other Party. Neither Party shall hold itself out to be a joint venture, partner, employee, representative, franchisee, servant or agent of the other.
15.11 The failure of either Party to insist upon or enforce strict conformance by the other Party of any provision of this Agreement or to exercise any right under this Agreement shall not be construed as a waiver or relinquishment of such Party’s right unless made in writing and shall not constitute any subsequent waiver or relinquishment.
15.12 FocusVision reserves the right to change the terms and conditions of this Agreement or its policies relating to the Service at any time and shall notify the Client of such change in accordance with the notification provisions hereof. Continued use of any Service for more than thirty (30) days after any change is implemented, irrespective of actual receipt or acknowledgement by Client of the notice, shall constitute consent by Client to such changes.
15.13 Client acknowledges that FocusVision is in the business of providing computer and information technology services and may perform services similar to the Services for other persons. Subject to FocusVision’s confidentiality obligations under this Agreement, FocusVision retains the right and nothing shall prevent FocusVision from using any ideas, concepts, methods, processes, know-how, organization, techniques or any Product, in providing any services to any third person.
15.14 Other than the affiliates and subsidiaries of FocusVision who shall each be entitled to the benefit of and to enforce all of the rights and entitlements of the Customer under and in connection with this Agreement, subject to and in accordance with the terms of this Agreement and the provisions of the Contracts (Rights of Third Parties) Act 1999, a person who is not a party to this Agreement has no right (whether under the Contracts (Rights of Third Parties) Act 1999 or otherwise) to enforce or to enjoy the benefit of any term of this Agreement. The consent of any person who is not a party is not required to rescind, vary, suspend, enforce or terminate this Agreement or any of its terms, or to assign or transfer any rights or obligations, or to grant any waiver under or in connection with this Agreement, at any time.
Data Transfer and Processing Agreement
This Data Processing Agreement (“Agreement”) is effective from the effective date of the Primary Agreement (as defined below) (“Effective Date”)
(1) *COMPANY NAME*., a company constituted under the laws of ***** with an address at * (together with its Affiliates as defined below) (“Client”); and
(2) FocusVision Worldwide Inc., a company constituted under the laws of Delaware with an address at 5 Hanover Square, Suite 502, New York, NY 10004 (together with its Affiliates) (the “Data Processor”)
(together the “Parties” and the “Party” shall be construed accordingly).
- Client is engaged in the businesses of providing a web-based platform and related services for job seekers to upload resumes and search for jobs, and for businesses to post jobs, link jobs and locate candidates (the “Client Services”).
- In the course of providing the Client Services, Client may process personal data of individuals (“Personal Data”), as further defined below, which is controlled by entities related and affiliated with Client, as applicable (the “Data Controllers”).
- The Data Processor may from time to time process Personal Data on behalf of the Data Controllers to enable the Data Processor to support the Client Services in accordance with Client’s applicable privacy policies (the “Purpose”) and Client may make Personal Data available to the Data Processor in connection with this Purpose.
- Client may instruct the Data Processor, in respect of the processing of Personal Data, on behalf of the Data Controllers, as applicable.
- EU data protection law requires that contracts involving the processing of Personal Data contain certain safeguards. This Agreement is designed to meet these requirements. The Parties intend that the processing activities carried out by the Data Processor on behalf of the Data Controllers shall comply with the provisions of this Agreement.
Words and expressions used in this Agreement but not defined herein shall have the meanings given to such words and expressions in the GDPR.
“Affiliate” shall refer to any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Applicable Data Protection Law” means all applicable national laws, regulations, and other legal requirements relating to (i) privacy, data security, consumer protection, marketing, promotion, and text messaging, email, and other communications; and (ii) the use, collection, retention, storage, security, disclosure, transfer, disposal, and other processing of Personal Data;
“GDPR” means Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation);
“Personal Data” means data any information relating to an identified or identifiable natural person (‘data subject’); an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person;
“Primary Agreement” means any product or services agreement between Client and the Data Processor to which the transfers of Personal Data referred to in this Agreement relate.
“Privacy Shield Principles” means the EU-US Privacy Shield Framework Principles issued by the US Department of Commerce which forms Annex II to Commission Implementing Decision of 12 July 2016 (C(2016) 4176 final) and the Swiss-US Privacy Shield Framework Principles issued by the US Department of Commerce on 9 January 2017;
“Security Incident” means an incident giving rise to a risk of unauthorised or accidental disclosure, loss, destruction, alteration or processing of Personal Data;
“Supervisory Authority” means an authority established in accordance with Article 51 of the GPDR or any other equivalent authority established under Applicable Data Protection Law;
“Technical and Organisational Security Measures” means those measures aimed at protecting Personal Data from unauthorised access, or unauthorised alteration, disclosure or destruction, as further described in Schedule B;
Details of the Processing Operations
The subject matter of the processing, including the processing operations carried out by the Data Processor on behalf of the Data Controllers and the instructions of Client to the Data Processor, are described in Schedule A, which forms an integral part of this Agreement. Where there is any conflict between the provisions of this Agreement and the provisions of any Primary Agreement in place between Client and the Data Processor to which these transfers of Personal Data relate, the provisions of this Agreement shall govern. The Data Processor acts on behalf of and on the instructions of the Data Controllers in carrying out the processing operations.
Obligations of the Data Processor
- The Data Processor carries out the processing of Personal Data on behalf of the Data Controllers.
- In discharging its obligations under this Agreement, the Data Processor is responsible for its compliance with Applicable Data Protection Law and will ensure that all necessary registrations and notifications are made and provide Client with a copy, on request, of evidence of such and evidence of any amendments or alterations made thereto.
- The Data Processor agrees that it will:
- process Personal Data only on behalf of the Data Controllers and in compliance with the Data Controllers’ instructions (which may be provided by Client), and this Agreement, and it shall not disclose Personal Data to any third party (including for back-up purposes) apart from the sub-processors authorized by Client (acting on behalf of the Data Controllers, as applicable) under this Agreement. If the Data Processor cannot provide such compliance, it shall promptly inform Client of its inability to comply, in which case Client is entitled to immediately terminate this Agreement and the Data Processor’s access to Personal Data and/or to take any other reasonable action;
- immediately inform Client if in the Data Processor’s opinion an instruction from Client infringes Applicable Data Protection Law;
- implement the Technical and Organizational Security Measures prior to the launch of the processing activities for the Personal Data and provide Client with copies of its privacy and security policies;
- take all reasonable steps to ensure that (i) persons employed by it, and (ii) other persons engaged at its place of business, who will process Personal Data are aware of and comply with this Agreement;
- comply with strict confidentiality obligations in respect of the Personal Data and ensure that its employees, authorized agents and any sub-processors are legally required in writing to comply with and acknowledge and respect the confidentiality of the Personal Data, including after the end of their employment, contract or at the end of their assignment;
- inform Client without delay of:
- any non-compliance by the Data Processor or its employees with this Agreement or the regulatory provisions relating to the protection of Personal Data processed under this Agreement;
- any legally binding request for disclosure of Personal Data by a law enforcement authority, unless otherwise prohibited, such as in order to preserve the confidentiality of an investigation by the law enforcement authorities;
- any Security Incident;
- any notice, inquiry or investigation by a Supervisory Authority; and
- any complaint, inquiry or request (in particular, requests for access to, rectification or blocking of Personal Data) received directly from the data subjects without responding that request, unless Client has authorized a response;
- to fully co-operate with and assist Client or any Data Controller, as applicable, without delay in respect of that Data Controller’s obligations regarding:
- requests from data subjects in respect of access to or the rectification, erasure, restriction, blocking or deletion of Personal Data. In the event that a data subject sends such a request directly to the Data Processor, the Data Processor will pass it on to Client without delay;
- the investigation of any Security Incident and the notification to the Supervisory Authority and data subjects in respect of such Security Incidents;
- the preparation of data protection impact assessments and, where applicable, carrying out consultations with the Supervisory Authority;
- the security of Personal Data, including by implementing the Technical and Organizational Security Measures;
- deal promptly, properly and in good faith with all reasonable inquires relating to the Data Processor’s processing of Personal Data whether such inquiry is made by Client, a particular Data Controller, a data subject or any Supervisory Authority;
- if the Data Processor is required by law to process Personal Data, inform Client of this requirement in advance of any processing, unless the Data Processor is prohibited from informing Client on grounds of important public interest; and
- make available to Client (and, to the extent strictly required by law, the Data Controller, as applicable) all information necessary to demonstrate compliance with the obligations in this Clause 3.
- The Data Processor agrees at the request of Client to submit its data processing facilities and/or any location from which Personal Data can be accessed by the Data Processor for audit to ascertain and/or monitor compliance with this Agreement, the GDPR and any other applicable data protection or privacy law generally. Such audit shall be carried out, with reasonable notice and during regular business hours and under a duty of confidentiality, by Client and/or by a third party appointed by Client.
- Prohibition on transfer and disclosure
- The Data Processor agrees that if it intends to engage one or more third parties acting on its behalf to help it to satisfy its obligations in accordance with this Agreement and to delegate all or part of the processing activities to such sub-processors, it must obtain the prior consent of Client (acting on behalf of the Data Controllers, as applicable) to the subcontracting, and such consent must not be unreasonably withheld. The Data Processor shall enter into contractual arrangements with such approved sub-processors requiring them to guarantee a similar level of data protection compliance and information security to that provided for herein. If such a third party fails to fulfil its data protection obligations, the Data Processor shall remain fully liable for the performance (or failure of performance) of that third party’s data protection obligations.
- To the maximum extent permitted by applicable law and without prejudice to the generality of clauses 3 or 4.1, without the prior consent of Client (acting on behalf of the Data Controllers, as applicable) the Data Processor shall not:
- disclose Personal Data to any third party, including, without limitation, any law enforcement or governmental authority; or
- transfer Personal Data outside the European Economic Area, Switzerland or a country approved by the European Commission pursuant to Article 25(6) of Directive 95/46/EC or, as applicable, Article 45(1) of the GDPR. Transfers within the United States can be made in accordance with the Privacy Shield Principles.
- Privacy Shield
- Client and the Data Processor acknowledge that Client Inc. is certified under the EU-US and Swiss-US Privacy Shields and is obliged to comply with the onward transfer principle in respect of the transfer of Personal Data to a third party, such as the Data Processor.
- In order to ensure Client Inc.’s compliance with the Onward Transfer Principle, the Data Processor agrees to provide Personal Data with at least the same level of protection as required under the Privacy Shield Principles, which are detailed here: https://www.privacyshield.gov/EU-US-Framework (EU-US Privacy Shield Framework) and https://www.trade.gov/td/services/odsi/swiss-us-privacyshield-framework.pdf Swiss-US Privacy Shield Framework). The Data Processor further agrees to only process Personal Data (i) for the limited and specified purposes consented to by the data subjects and set out in this Agreement and (ii) in accordance with this Agreement, and the Privacy Shield Principles.
- If the Data Processor determines that it can no longer meet any of its obligations arising under this clause 5 it shall notify Client without delay. In such a case, or if Client has otherwise notified the Data Processor of Client’s determination that the Data Processor cannot meet said obligations, the Data Processor shall cease processing Personal Data and take other reasonable and appropriate remedial steps, including as directed by Client.
- The Data Processor shall indemnify Client, without limit or exclusion, against any Damages incurred by Client, and any member of its Group or any employees, arising from or in connection with:
- The Data Processor acting outside or contrary to the lawful instructions of Client;
- Any other breach by the Data Processor of its obligations under this agreement or of Applicable Data Protection Laws; and/or
- Any act or omission of the Data Processor or its employees which causes Client in any way to be in breach of Data Protection Laws.
- The Data Processor shall indemnify Client, without limit or exclusion, against any Damages incurred by Client, and any member of its Group or any employees, arising from or in connection with:
The Parties agree that on the termination of the data processing services, the Data Processor and any sub-processors shall, at the choice of Client (acting on behalf of the Data Controllers, as applicable), return all the Personal Data and copies of such data to Client or the relevant Data Controller or securely destroy them and demonstrate to the satisfaction of the Client (acting on behalf of the Data Controllers, as applicable) that it has taken such measures, unless Applicable Data Protection Law or other laws prevent it from returning or destroying all or part of the Personal Data disclosed. In such case, the Data Processor agrees to preserve the confidentiality of the Personal Data retained by it and that it will only actively process such Personal Data after such date in order to comply with the laws it is subject to.
Governing law and jurisdiction
- This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by, and construed in accordance with, the law of ****.
- The parties to this Agreement irrevocably agree that the courts of *****, shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).
Details of the Processing Activities
Client is engaged in the businesses of providing a web-based platform and related services for job seekers to upload resumes and search for jobs, and for businesses to post jobs, link jobs and locate candidates (the “Client Services”).
The Data Processor is a marketing research company and specializes in survey and reporting, and carries out surveys on behalf in Client.
The Personal Data transferred concern the following categories of data subjects:
- Client users
Categories of data
The Personal Data transferred includes:
- Names, email addresses
Special categories of data
The Personal Data transferred may concern the following special categories of data:
The Personal Data transferred may be subject to processing:
The Data Processor (Focusvision) collects and processes data on behalf of the client for marketing research.