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Terms Of Use
Kanda Products and Services Limited (company number 11330964), trading as Kanda, provides use of its platform for creating quotes, booking jobs and receiving payment online. Use of the Platform (as defined below) is subject to these Terms of Use.
1. Interpretation
1.1. The following terms shall have the following meanings when used in these Terms of Use (save where the context clearly and unambiguously requires otherwise):
Applicable Authority: means a regulatory body to which regulates the Subscriber’s trade or to which the Subscriber is a voluntary member.
Applicable Regulations: means the codes, regulations, orders and other rules applying to the Works including the Building Act 1984, the Building Act 2000 and other UK Building Regulations published at https://www.gov.uk/government/collections/approved-documents and https://www.gov.uk/building-regulations-approval.
Account: means a User’s registered account with the Platform.
Business Day: means a weekday which is not a public holiday or a weekend in the United Kingdom.
Company: means Kanda Products and Services Ltd, company number 11330964, a company registered in England and Wales.
Customer: means the legal person who enters into a Customer Contract with Subscriber.
Customer Contract: means the contract the Subscriber agrees with the Customer for the Works.
Data Controller: shall have the meaning of ‘data controller’ set out in the Data Protection Legislation.
Data Processor: shall have the meaning of ‘data processor’ set out in the Data Protection Legislation.
Data Protection Legislation: means, for such time as they are in force in England and Wales, the DPA, the GDPR and all related legislation which may supplement, amend, implement or replace them and which relates to the protection of individuals’ rights in their personal data and the protection of their privacy.
Data Subject: shall have the meaning of ‘data subject’ set out in the Data Protection Legislation.
DPA: means the Data Protection Act 2018.
GDPR: means Regulation (EU) 2016/679 and/or such legislation as may give effect to its terms in England and Wales.
Intellectual Property: means all copyright, patents, inventions, trade secrets, know-how, product formulations, designs, circuit layouts, databases, registered or unregistered trademarks, brand names, business names, domain names and other forms of intellectual property.
Job Price: means the total sum to be paid by the Customer for the Works as agreed between the Customer and Subscriber.
Payment Account: means the account operated by the Payment Provider.
Payment Provider: means any third-party holding account(s) and payment provider(s) appointed by the Company that operate(s) the Payment Account.
Personal Data: shall have the meaning set out in the Data Protection Legislation.
Personal Data Breach: shall have the meaning set out in the Data Protection Legislation.
Platform: means the Company’s online platform Kanda connecting Subscribers and Customers, accessible at the Site.
Premises: the location where the Works are to be carried out as fully described in the Customer Contract.
Privacy Policy: means the Company’s privacy policy as updated from time to time which can be found at https://www.kanda.co.uk/privacy-policy.
Processing and Process: shall, when used in the context of activity relevant to Data Protection Legislation, have the meaning set out in that Data Protection Legislation.
Platform Fees: means the total fees payable by the Subscriber to the Company inclusive of the Subscription Fee and Transaction Fee.
Quote: means Subscriber’s offer for the Job Price as submitted to the Customer through the Platform.
Services: the provision of the Platform and other services provided by the Company to the Subscriber in relation to the Platform.
Service Levels: means the service levels set out in the Appendix to these Terms of Use.
Site: means https://www.kanda.co.uk or such other URL as may be used by the Company from time to time.
Subscriber: means a Tradesperson that subscribes to the Platform and uses the Services.
Subscription Fee: means the fee payable by the Subscriber for the use of the Platform.
Terms of Use: means these terms and conditions for the use of the Platform, as updated from time to time and found at https://www.kanda.co.uk/terms-and-conditions.
Transaction Fee: means the fees charged by the Company for the Subscriber’s use of the Platform as set out on the Platform and updated by the Company from time to time.
User: means a Subscriber, Customer or visitor to the Site.
Works: means the Works to be provided to the Customer by the Subscriber under the terms of the Customer Contract.
Writing: means any form or writing including, without limitation, email and electronic communications through the Platform.
2. Licence
2.1. General Company agrees with effect from the Commencement Date and in consideration of the payment of the Platform Fees by the Subscriber to supply the Platform on a non-exclusive basis upon the terms and conditions of these Terms of Use.
2.2. The licence granted to the Subscriber under these Terms of Use shall be ongoing unless and until terminated in accordance with these Terms of Use (the Term).
2.3. The Company may suspend the Account or restrict the access of any Subscriber that breaches these Terms of Use at any time and without notice.
2.4. These Terms of Use may be updated by the Company from time to time.
2.5. Where the Company makes a material modification to these Terms of Use, it will provide the Subscriber with written notice and the Subscriber will be required to accept the modified terms in order to continue using the Platform.
3. Use of the Platform
3.1. General
3.1.1. To use the Platform, the Subscriber must first create and log into its registered Account via the Site.
3.2. The Subscriber is solely responsible for the security of its username and password for access to the Platform. The Subscriber shall notify the Company as soon as it becomes aware of any unauthorised access of its Account.
3.2.1. At all times, the Subscriber agrees:
(a) to use the Platform in accordance with these Terms of Use; and
(b) that it is authorised to establish and maintain its Account on the Platform.
3.3. The Subscriber ackwoledges that:
3.3.1. access to the Platform may be prevented by issues outside of the Company’s control; and
3.3.2. the Company accepts no responsibility for the Subscriber’s ongoing access to the Platform (or lack thereof).
3.4. Subscriber Warranties and Obligations
3.4.1. The Subscriber represents, warrants and undertakes that:
(a) it has and shall during the Term have the legal right and authority to provide the Works including the use of any materials or equipment that is required for the performance of the Works;
(b) it will use the Services only for lawful purposes and shall not use it to engage in any conduct that is unlawful, immoral, threatening, abusive or in a way that contravenes these Terms of Use.
(c) it will comply at all times with Data Protection Legislation;
(d) it will maintain during the Term at its own cost appropriate insurance cover in relation to the Works including but not limited to public liability insurance and insurance covering physical loss or damage to all materials and/or equipment used in the Works.
3.4.2. In the event of any breach of any of the foregoing representations or warranties, in addition to any other remedies available at law or in equity, Company will have the right to suspend immediately the Account and any related Services if deemed reasonably necessary by Company to protect the proper interests of Company or its other customers. If practicable and depending on the nature of the breach, Company may (in its absolute discretion) give the Subscriber an opportunity to cure the breach. In such case once the Subscriber has cured the breach, Company will promptly restore the Account or Services.
3.4.3. The Subscriber shall provide all such assistance, facilities and information to Company as Company may reasonably require in order to enable it to carry out its obligations under these Terms of Use.
3.5. Booking Process
3.5.1. The Subscriber will be responsible for making initial contact with the Customer.
3.5.2. The Subscriber will be responsible for attending the Premises if required and to request such information from the Customer as is necessary in order to be able to accurately cost the Works before submitting a Quote.
3.5.3. The Subscriber will submit the Quote to the Customer via the Platform.
3.5.4. Once the Customer has received a Quote, the Platform will enable the Customer to:
(a) review the Quote
(b) review the Subscriber’s references (where available)
(c) request amendments to the Quote
(d) communicate with the Subscriber directly to discuss details of the Quote, confirm the Job Price and accept the Job Price, and
(e) accept the Quote.
3.5.5. If any part of the Quote is not accepted by the Customer the Subscriber may amend the Quote and re-submit to the Customer through the Platform.
3.5.6. When the Customer accepts the Quote a legal contract is formed between the Subscriber and the Customer on the terms and conditions of the Customer Contract which will incorporate the 4 Job Price and any other terms in the Quote. Once accepted by the Customer the Job Price may not be amended without agreement by the Customer in accordance with clause 3.10 or in accordance with the change control provisions in the Customer Contract.
3.5.7. When the parties have agreed the Quote, the Customer can choose to pay the Job Price via the payment portal on the Platform and in accordance with the payment terms set out in clause 4.
3.5.8. The Subscriber shall provide the Works at the specified quality and workmanship in the Customer Contract and shall be suitable for the purpose stipulated in or indicated by or to be reasonably inferred from the Customer Contract. Notwithstanding the foregoing, the Subscriber acknowledges that the Subscriber is responsible for the performance of the Customer Contract. The Company has no liability for any failure by the Subscriber to perform the Works in accordance with the Customer Contract.
3.5.9. Unless otherwise agreed by the parties the Company shall not be responsible for the provision of any materials and/or equipment in relation to the Works. Use of materials and/or equipment in relation to the Works shall be at the absolute risk of the Subscriber.
3.5.10. The Subscriber shall provide the Works in accordance with the Applicable Regulations. Breach of the Applicable Regulations shall be a material breach of these Terms of Use.
3.5.11. Subscriber will provide evidence of all insurance cover pursuant to the warranty at clause 3.4.1 if requested by the Company.
3.6. Company’s Obligations
3.6.1. The Company will operate the Platform in accordance with Applicable Laws and will use its reasonable endeavours to ensure that the Platform will be available in accordance with the Service Levels save where otherwise expressly provided for by this Agreement.
3.6.2. Outages or Service Interruptions may be made by Company when in its reasonable opinion they are necessary to facilitate improvements to or maintenance of the Platform. The Company will use reasonable endeavours to minimise the Outages or Service Interruptions.
3.6.3. If Outages or Service Interruptions are required under clause 3.6.2 (“Scheduled Interruptions”) Company will endeavour to schedule Scheduled Interruptions so as to minimise impact on the Services and will make reasonable endeavours to notify the Subscriber of the anticipated commencement time of the Scheduled Interruptions and its estimated duration.
3.7. Company warrants to and undertakes with the Subscriber that:
3.7.1. Company will use its reasonable efforts to provide the Services and to exercise reasonable care and skill and in accordance with these Terms of Use;
3.7.2. Company has full right power and authority to provide the Services to the Customer in accordance with these Terms of Use;
3.7.3. Company has all requisite registrations under UK Data Protection Legislation and will maintain such registrations throughout the Term and will comply with the provisions of such legislation; and
3.7.4. Company will at all times comply with Data Protection Legislation.
3.8. Except for the express warranties set forth in clause 3.7, the Services are provided on an “as is” basis, and the Subscriber’s use of the Services is at its own risk. Company does not make, and hereby disclaims, any and all other express and/or implied warranties, statutory or otherwise, including, but not limited to, warranties of merchantability, fitness for a particular purpose and any warranties arising from a course of dealing, usage, or trade practice. Company does not warrant that the Services will be uninterrupted, error-free, or completely secure.
3.9. Company does not and cannot control the flow of data to or from its network and other portions of the internet. Such flow depends in large part on the performance of internet services provided or controlled by third parties. At times, actions or omissions of such third parties can impair or disrupt connections to the Internet (or portions thereof). Although Company will use commercially reasonable efforts to take all actions it deems appropriate to remedy and avoid such events, Company cannot guarantee that such events will not occur. Accordingly, Company disclaims any and all liability resulting from or related to such events.
3.10. Change Requests
3.10.1. Following acceptance of a Quote, the Customer shall communicate any changes to instructions or any additional requests for the Works to the Subscriber directly.
3.10.2. Any changes shall be subject to additional agreement between the parties including without limitation changes to the Quote, and/or Job Price, and such changes will be recorded via the Platform.
3.10.3. Where the parties agree to any additional fees in relation to the changes, the Customer shall make payment into the Payment Account in accordance with clause 4. and
3.11. Communication Conduct
3.11.1. Subscribers and Customers may use the Platform to communicate instructions and questions relating to the Works.
3.12. The Subscriber acknowledges that it uses the Platform at its own risk and that the Company is not responsible for the conduct or activities of the Customer or any other User.
3.12.1. The Subscriber acknowledges and accepts that:
(a) the Company accepts no responsibility for any interaction between Users, whether that interaction occurs via the Platform or not.
(b) the Company makes no warranty or representation as to the accuracy of any information provided by any User.
(c) the Company makes no warranty as to the character, skills, capabilities and/or credentials of any User.
3.12.2. If the Subscriber believes that another User’s behaviour is threatening, discriminatory, or otherwise contrary to these Terms of Use, the Subscriber may transmit a complaint to the Company via email at help@kanda.co.uk.
3.12.3. The Company may suspend or delete the Account of the Subscriber that the Company deems to have conducted itself inappropriately or otherwise to be in breach of these Terms of Use.
3.12.4. The Company will advise the Subscriber of a suspended or deleted Account of the decision to do so but is under no obligation to identify any complainant.
3.12.5. The Company’s decision whether or not to suspend or delete an Account is at its absolute discretion. The Company’s decision shall be final and not subject to review.
3.13. Completion
3.13.1. Upon the Subscriber’s completion of the Works, the Subscriber shall confirm the completion of the Works via the Platform, and the Customer shall be notified (Completion Notification).
3.13.2. The Customer will then have 3 Business Days from the date of the Completion Notification (Acceptance Period) to do any of the following via the Platform:
(a) confirm acceptance of the Works (Customer Acceptance);
(b) request changes to the Works; or
(c) report an issue with the Works and/or request a refund.
3.13.3.On Customer Acceptance pursuant to clause 3.13.2(a) the Tradesperson will submit an invoice for the Job Price which the Customer may pay directly or via the Platform if the Tradesperson has elected to accept card payments. On payment by the Customer via the Platform the Company shall deduct the Transaction Fee and account to Tradesperson within 7 days of receipt of the Job Price from the Customer.
3.13.4. In the event the Customer requests a change to the Works under clause 3.13.2(b):
(a) Where the requested change(s) to the Works are within the scope of the Quote, the Subscriber shall complete such changes before to the confirming completion of the changes via the Platform for Customer Acceptance, and the procedure set out in clauses 3.13.1 to 3.13.3 will re-commence; or
(b) Where the requested change(s) to the Works are outside of the scope of the Quote, then the change request procedure under clause 3.10 shall apply.
3.14. Following Customer Acceptance of the Works, the Customer may complete a feedback form to rate the Customer’s experience with the Subscriber and the Customer’s level of satisfaction regarding the Works. The Customer agrees to provide accurate information and not to unreasonably give the Subscriber a low or misleading rating.
4. Payment Terms and Taxes
4.1.The Customer’s payment of the Job Price shall be processed via the Customer’s credit card, PayPal account or other such payment method as allowed for by the Company and/or the Payment Provider from time to time.
4.2.The Subscriber agrees that the Transaction Fee, payable to the Company, shall be deducted from the total payable Job Price at the point of the Customer’s payment.
4.3.The Company shall release the Job Price less the Transaction Fee to the Subscriber’s nominated bank account in accordance with clause 3.13.3, and transfer the Transaction Fee to the Company.
4.4.The Subscriber acknowledges that payment of the Job Price by the Customer and release thereof will be subject to the Payment Provider’s terms and conditions.
4.5. The Subscriber acknowledges that they accept the terms of the Payment Provider at https://stripe.com/docs/connect/updating-accounts#tos-acceptance when signing up to the Platform.
4.6. Unless stated otherwise, all Platform Fees shall be paid in British pounds.
4.7. All Platform Fees shall be subject to VAT and any other applicable sales tax or duty, payable in addition to the Platform Fees.
4.8. The Subscriber is responsible for paying all taxes which arise in connection with its activities via the Platform and hereby fully indemnifies the Company in respect of any failure to do so.
5. Cancellations & Refunds
5.1. Other than as required by law, no refunds of Platform Fees (partial or full) will be available except under the following circumstances and subject to the Company’s absolute discretion:
5.1.1.the Works are cancelled by the Customer for any reason;
5.1.2. the Works are cancelled by the Customer and the Company is reasonably satisfied that the Subscriber has not commenced work on the Works;
5.1.3. the Subscriber and the Customer mutually agree to cancel the Works;
5.1.4. the Subscriber has not provided final delivery of the Works for reasons not due to the Customer’s delays in providing instructions, feedback, materials or any other thing reasonably requested by the Subscriber to provide the Works; or
5.1.5. the Customer notifies the Company and the Subscriber within the Acceptance Period that it is not satisfied with the quality of the Works and either:
(a) the Customer and the Subscriber resolve directly with each other that the Customer shall be issued a refund (and notify the Company in writing of their decision); or
(b) the Customer and the Subscriber agree to allow the Company to resolve the matter in accordance with clause 10, following which the Company determines, acting reasonably and in its absolute discretion, that the Work is not of satisfactory quality.
5.2.Where a refund is requested by the Customer in the circumstances outlined in clause 5.1.4 above Company shall notify the Subscriber in writing and shall provide the Subscriber with 5 Business Days to either provide the Works or respond to the Company with an explanation for the delay. The Company shall only process a refund to the Customer where:
5.2.1. the Subscriber fails to respond to the Company within 5 Business Days of the Company’s notification.
5.3. For clarity, any refunds offered under this clause 5 shall be for the Job Price only and shall not include a refund of the Transaction Fee, except at the discretion of the Company or where otherwise required by law.
5.4.In the event the Customer disputes a payment of the Job Price with their payment card provider after Customer Acceptance and is issued a refund via the Payment Provider, Subscriber agrees to reimburse Company for any payment relating to the disputed payment made to the Subscriber where Company has been charged in relation to the Customer’s refund.
6. Intellectual Property in the Platform
6.1. The Subscriber agrees and accepts that the Platform is, and shall remain, the Intellectual Property of the Company (or its licensors) and the Subscriber undertakes not to directly or indirectly copy, recreate, decompile, reverse engineer or otherwise obtain, modify or use any source or object code, architecture, algorithms contained in or underpinning the Platform or any documentation associated therewith.
6.2. Without prejudice to the Subscriber’s rights in its own materials, the parties hereby agree that the Customer shall not acquire any Intellectual Property Rights whatsoever in respect of the Platform, documentation and other materials used by Subscriber in connection with or related to the provision of the Services hereunder.
6.3. Company warrants that it has all necessary right, title and interest to enable the Subscriber to benefit from the Services in accordance with these Terms of Use.
6.4. The Subscriber hereby grants to Company a non-exclusive, royalty-free, world-wide licence during the Term to use, copy, reproduce, and manipulate data provided by the Subscriber or resulting from the Services for the purposes of using the data for the provision of the Services.
7. Termination
7.1. For the purposes of this clause 7, the following events shall be deemed “acts of default”:
7.1.1. if a party commits any material breach of any term of this Agreement and which, in the case of a breach capable of being remedied, shall not have been remedied within 30 days of a written request by the other party to remedy the same;
7.1.2. if a party shall convene a meeting of its creditors or if a proposal shall be made for a voluntary arrangement within Part I of the Insolvency Act 1986 or a proposal for any other composition scheme or arrangement with or assignment for the benefit of its creditors or if the other shall be unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or if a trustee, receiver, administrative receiver, administrator or liquidator or similar officer is appointed in respect of the other party or all or any part of its business or assets or if a petition is presented or a meeting is convened for the purpose of considering a resolution or other steps are taken for the winding up of the other party or for the making of an administration order (otherwise than for the purpose of an amalgamation or reconstruction) or if any analogous step is taken in any jurisdiction.
7.2. If the Subscriber commits an act of default then Company may suspend the Subscriber’s Account without notice and this Agreement shall be deemed terminated.
7.3. Any termination of this Agreement for any reason shall be without prejudice to any other rights or remedies a party may be entitled to hereunder or at law and shall not affect any accrued rights or liabilities of either party nor the coming into force or the continuance in force of any provision hereof which is expressly or by implication intended to come into or continue in force on or after such.
8. Third Party Dependencies
8.1. The Subscriber acknowledges that the Platform is dependent on third-party services, including but not limited to:
(a) the Payment Provider;
(b) telecommunications services;
(c) hosting services;
(d) email services; and
(e) analytics services.
8.2. The Subscriber acknowledges that the Company shall not be responsible or liable in any way for:
(a) interruptions to the availability of the Platform due to third-party services;
(b) payment delays due to third-party services; and/or
(c) information contained on any linked third-party website.
9. Liability & Indemnity
9.1. The Subscriber agrees to indemnify the Company for any loss, damage, cost or expense that the Company may suffer or incur as a result of or in connection with the Subscriber’s use of or conduct in connection with the Platform, including any breach by the Subscriber of these Terms of Use.
9.2. To the fullest extent permissible at law, in no circumstances will the Company be liable for any direct, incidental, consequential or indirect damages, damage to property, loss of property, loss or corruption of data, loss of profits, goodwill, bargain or opportunity, loss of anticipated savings or any other similar or analogous loss resulting from the Subscriber’s access to, or use of, or inability to use the Platform, whether based on warranty, contract, tort, negligence, in equity or any other legal theory, and whether or not such damage or business interruption was foreseeable by either party.
9.3. To the extent not excluded by clause 9.2 or otherwise, the total aggregate liability of the Company to the Subscriber, whether in contract, tort (including negligence) or otherwise shall in no circumstances exceed £1,000.
9.4. The exclusions in Clause 9.2 shall apply to the fullest extent permissible at law but Company does not exclude liability for:
(a) death or personal injury caused by the negligence of Company, its officers, employees, contractors or agents; or
(b) fraud or fraudulent misrepresentation; or
(c) breach of the obligations implied by Section 12 Sale of Goods Act 1979 or Section 2 Supply of Goods and Services Act 1982; or
(d) any other liability which cannot be excluded by law
9.4.2. Company shall not be liable for any loss or damage of whatsoever nature suffered by the Subscriber arising out of or in connection with any act, omission, misrepresentation or error made by or on behalf of the Subscriber or arising from any cause beyond Company's reasonable control.
9.4.3. The Subscriber accepts that Company is in no way liable for any virus or other contaminants which enter the Subscriber's email system or computer network via email.
10. Dispute Resolution
10.1. Any disputes between a Subscriber and a Customer (each a “Disputing Party”) shall be resolved directly between the Disputing Parties and/or subject to any dispute resolution mechanisms under the Customer Contract where applicable. Should such a dispute arise, each Disputing Party agrees to co-operate with the other and to make a genuine attempt to resolve the dispute.
10.2. Where the Disputing Parties are unable to resolve the dispute in accordance with clause 10.1 above, then either Disputing Party may refer the dispute to the Company for the Company to resolve.
10.3. In the event the dispute has been referred to the Company in accordance with clause 10.2, each of the Disputing Parties agrees:
10.3.1. to promptly co-operate with any of the Company’s requests and its investigation into the dispute; and
10.3.2.that the Company is entitled either to refer the dispute to an Applicable Authority who will determine the dispute and inform the Company or their decision, or to instruct at its sole discretion an independent expert in the relevant field (Independent Expert) to make a final determination based on the information supplied by the Disputing Parties. The Independent Expert may inspect the Works at the Premises. The Company will adhere to the decision of the Independent Expert and will accordingly, without liability to either of the Disputing Parties, direct the Payment Provider to make any applicable refunds or payments accordingly. Any such determination will be notified by the Company to each Disputing Party (Determination Notice), will refer to their rights under clauses 10.4 and 10.5 below and any payment or refund arising from such determination will not be affected until the expiry of the later of the following:
(a) the expiry of 10 Business Days from the date of the Determination Notice where a Dispute Notice is not given within that period in accordance with clause 10.5 below; or
(b) the expiry of 20 Business Days from the date of the Determination Notice where a Dispute Notice is given in accordance with clause 10.5 below.
10.4. If either of the Disputing Parties takes issue with the determination of the Independent Expert and Company’s actions in relation to it under clause 10.3.2, then that Disputing Party may lodge that dispute with the Company in accordance with clause 10.5 below.
10.5. If any dispute arises between the Company and a Subscriber in connection with these Terms of Use (Dispute), then either party may notify the other of the Dispute with a notice (Dispute Notice) which:
10.5.1. includes or is accompanied by full and detailed particulars of the Dispute; and
10.5.2. is delivered within 10 Business Days of the circumstances giving rise to the Dispute first occurring.
10.6. Within 10 Business Days after a Dispute Notice is given, a representative of each party with the authority to resolve the dispute, must meet (virtually or otherwise) and seek to resolve the Dispute and notify the Company of the outcome.
10.7. Nothing in this clause prevents any party from instituting court proceedings in respect of a dispute.
11. Anti-Bribery
11.1. The Subscriber and the Company agree to:
11.1.1. comply with all applicable laws, regulations, mandatory codes and sanctions relating to anti-bribery and anti-corruption including the Bribery Act 2010 (Relevant Requirements);
11.1.2. have and maintain in place throughout the term of these Terms of Use their own policies and procedures, including adequate procedures under the Bribery Act 2010, to ensure compliance with the Relevant Requirements, and to enforce them where appropriate;
11.2. Any breach of this Clause 13 shall be deemed a material breach of these Terms of Use.
12. Privacy
12.1. The Company undertakes to act in accordance with the provisions of the Data Protection Legislation in relation to the data that it collects about the Subscriber.
12.2. The Privacy Policy does not apply to how the Subscriber handles personal information of other Users.
12.3. The Company may use cookies (small electronic tracking codes) to improve a Subscriber’s experience while browsing, while also sending browsing information back to the Company. The Subscriber may manage how it handles cookies in its own browser settings.
13. Data Protection
Processor's obligations
13.1. The parties shall comply with all applicable requirements of the Data Protection Legislation. This clause 13 is in addition to, and does not relieve, remove or replace, a party’s obligations under the Data Protection Legislation.
13.2. The parties agree that for the purposes of the Data Protection Legislation the Subscriber shall be the Data Controller and the Company shall be the Data Processor in respect of any Personal Data which is transferred from the Subscriber to the Company in accordance with these Terms of Use. Such Personal Data is anticipated to include information relating to the customers and employees of the Subscriber, as they may be inputted into, or processed in the course of, the various services provided by the Company to the Subscriber. Such processing shall take place during the provision by the Company of the Platform in accordance with these Terms of Use.
13.3. The Subscriber consents to the Company appointing third party processors to process the Personal Data under these Terms of Use. Where the Company appoints a third party to process Personal Data it shall only use Data Processors providing sufficient guarantees to implement appropriate technical and organisational measures in such a manner that processing meets the requirements of the Data Protection Legislation and ensures the protection of the rights of Data Subjects.
13.4. The Company shall:
13.4.1. only process the Personal Data of Subscribers for the performance of its obligations pursuant to these Terms of Use and/or in accordance with the written instructions of the Subscriber unless otherwise required by the laws to which the Company is subject; in such a case, the Company shall inform the Subscriber of that legal requirement before processing, unless that law prohibits such disclosure from being made;
13.4.2. ensure that its personnel with access to the Personal Data are subject to a strict duty of confidentiality or are under an appropriate statutory obligation of confidentiality;
13.4.3. ensure that it has in place appropriate technical and organisational measures, to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, having regard to the state of technological developments and the costs of implementing any measures;
13.4.4. ensure that, where it does engage with a third party processor in accordance with clause 13.3, it will enter into a written agreement incorporating substantially similar data protection obligations set out in these Terms of Use;
13.4.5. assist the Subscriber to the extent reasonably required, in responding to any request from any Data Subject which concerns the exercise of that Data Subject’s right under the Data Protection Legislation (subject to the reimbursement by the Subscriber of all costs reasonably incurred in the course of the same);
13.4.6. assist in ensuring compliance with the Subscriber’s obligations under Article 32 to 36 of the Data Protection Legislation, including in respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators, (subject to the reimbursement by the Subscriber of all costs reasonably incurred in the course of the same);
13.4.7. notify the Subscriber without undue delay after becoming aware of any relevant Personal Data Breach;
13.4.8. at the written instruction of the Subscriber securely delete or return all Personal Data and copies thereof to the Subscriber on termination of these Terms of Use unless the applicable law requires storage of that Personal Data; and
13.4.9. maintain records of all information necessary to demonstrate compliance with the obligations laid down in Article 28 of the GDPR and grant the Subscriber and its auditors access to the Company’s processing facilities to conduct audits and inspections (subject to the reimbursement by the Subscriber of all costs reasonably incurred in the course of the same); and
13.4.10. immediately inform the Subscriber if, in its opinion, any instruction given by the Subscriber infringes the Data Protection Legislation or any other applicable data protection provisions.
14. Data Protection Indemnity
Processor's obligations
14.1. Each party agrees to indemnify and keep indemnified and defend at its own expense the other party against all costs, claims, damages or expenses incurred by the other party or for which the other party may become liable due to any failure by the first party or its employees or agents to comply with any of its obligations pursuant to clause 13. In order to avail itself of this indemnity the claiming party must: promptly notify the indemnifier of any relevant claim of which the indemnified party becomes aware; not make any admission of liability or offer to settle in respect of any relevant claim without the prior written permission of the indemnifier; grant the indemnifier full control of all relevant proceedings on request, and; provide the indemnifier with such assistance in dealing with such claims as it may reasonably request.
14.2. The parties acknowledge that to the extent that either party is a Data Processor pursuant to these Terms of Use it will be reliant on the other, the Data Controller, for direction as to the extent to which the Data Processor is entitled to use and process the relevant Personal Data. Consequently, the Data Processor will not be liable to the Data Controller for any claim brought by a Data Subject arising from any action or omission by the Data Processor, to the extent that such action or omission resulted directly from the Data Controller's instructions.
14.3. Subject to and in accordance with Data Protection Legislation, the Subscriber consents to the Company collecting data about Subscriber’s use of the Platform and to it providing such data to any governmental or regulatory body in any fashion that it is required to do in order to comply with any applicable law and regulations.
15. Electronic Communication, Amendment & Assignment
15.1. The Subscriber can direct notices, enquiries, complaints and so forth to the Company as set out in these Terms of Use. The Company will notify the Subscriber of any change of contact details from time to time.
15.2. The Company will send the Subscriber notices and other correspondence to the details that the Subscriber submits to the Company, or that the Subscriber notifies to the Company from time to time. It is the Subscriber’s responsibility to update its contact details as they change.
15.3. A consent, notice or communication under these Terms of Use is effective if it is sent as an electronic communication unless required to be physically delivered by law.
15.4. Notices must be sent to the parties’ most recent known contact details.
16. General
16.1. Disclaimer. Each party acknowledges that it has not relied on any representation, warranty or statement made by any other party, other than as set out in these Terms of Use.
16.2. Relationship. The relationship of the parties to this Agreement does not constitute a joint venture, agency or partnership.
16.3. Third Party Rights. No term of these Terms of Use is intended to confer a benefit on or to be enforceable by, any person who is not a party to these Terms of Use and the Contract (Rights of Third Parties) Act 1999 does not apply to these Terms of Use.
16.4. Waiver. No infringement of these Terms of Use will be deemed waived unless such waiver is provided in writing.
16.5. Further Assurances. Each party must do anything necessary (including executing agreements and documents) to give full effect to these Terms of Use.
16.6. Governing Law.
16.6.1. These Terms of Use and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.
16.6.2. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with these Terms of Use or its subject matter or formation.
16.7. Time. Time is of the essence in these Terms of Use.
16.8. Severability. Any clause of these Terms of Use, which is invalid or unenforceable, is ineffective to the extent of the invalidity or unenforceability without affecting the remaining clauses of these Terms of Use.
16.9. Interpretation. The following rules apply unless the context requires otherwise:
16.9.1. The parties acknowledge that to the extent that either party is a Data Processor pursuant to these Terms of Use it will be reliant on the other, the Data Controller, for direction as to the extent to which the Data Processor is entitled to use and process the relevant Personal Data. Consequently, the Data Processor will not be liable to the Data Controller for any claim brought by a Data Subject arising from any action or omission by the Data Processor, to the extent that such action or omission resulted directly from the Data Controller's instructions.
16.9.1. headings are only for convenience and do not affect interpretation;
16.9.2. the singular includes the plural and the opposite also applies;
16.9.3. if a word or phrase is defined, any other grammatical form of that word or phrase has a corresponding meaning;
16.9.4. a reference to a clause refers to clauses in these Terms of Use;
16.9.5. a reference to legislation is to that legislation as amended, re-enacted or replaced, and includes any subordinate legislation issued under it; and.
16.9.6. mentioning anything after includes, including, or similar expressions, does not limit anything else that might be included.
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