Recollective Master Software as a Service Agreement
The terms and conditions of this agreement are incorporated by reference into each Recollective Order Form (as defined below). By delivering an executed Order Form to Recollective, you accept the terms and conditions of this agreement and agree to be bound by them. If the Order Form is executed by an individual on behalf of a corporation, partnership or other legal entity, such individual represents and warrants that he or she has the authority to bind the legal entity.
WHEREAS:
A. Recollective owns and operates the Web Interface (as defined below)
B. Recollective provides access to the Web Interface over the world wide web via a customizable website unique to each customer or project
C. Users authorized by a client may “log in” and access the Web Interface and participate in the online research; and
D. The Client desires to enter into a Master Software as a Service Agreement with Recollective whereby the Client may access the Web Interface from time to time on the terms and conditions set forth herein and such other terms as may be agreed to in an Order Form particular to each instance of access.
NOW THEREFORE THIS AGREEMENT WITNESSES THAT in consideration of the mutual covenants and agreements herein contained and contained in each Order Form, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto hereby agree as follows:
Article 1. INTERPRETATION
Section 1.01 General. This Agreement is a Master Software as a Service Agreement and governs the overarching relationship between Recollective and Client. It is contemplated that subsequent agreements between Recollective and Client for specific services and licensing may be made pursuant to Order Forms. The terms of such Order Forms may run concurrently or consecutively. Nothing in this Agreement should be read to preclude the possibility of the concurrent licensing and provision of services pursuant to multiple Order Forms, but rather this is expressly intended.
Section 1.02 Definitions. Definitions are as follows:
(a) “Admin Access End Date” means a date four (4) weeks from the Participant Access End Date unless otherwise specified in an Order Form.
(b) “Admin Access Start Date” means a date indicated in a specific Order Form upon which Client may, through a limited number of administrator accounts, begin accessing the Web Interface as described in that Order Form./p>
(c) “Agreement” means this Recollective master software as a service agreement.
(d) “Anti-Spam Laws” means the Canadian Radio-television and Telecommunications Commission Act (R.S.C., 1985, c. C-22), the Competition Act (R.S.C., 1985, c. C-34), the Personal Information Protection and Electronic Documents Act (S.C. 2000, c. 5) and the Telecommunications Act (S.C. 1993, c. 38) and their regulations, as amended from time to time.
(e) “Authorized User” means any person who obtains login credentials from Client to access the Web Interface or is otherwise authorized by Client to access the Web Interface, including Client’s employees, agents, research subjects and moderators.
(f) “Client” means the entity identified by the customer information in the Order Form.
(g) “Client Customization Specifications” means written directions provided by Client to Recollective describing Client’s desired “look and feel” for the Web Interface and its operation. Client Customization Specifications may contain Client Intellectual Property.
(h) “Client Intellectual Property” means intellectual property owned by or licensed to Client prior to the Effective Date and intellectual property that Client subsequently develops, purchases or licenses during the SaaS Term independently of Recollective.
(i) “Data Protection Laws” mean the data protection and privacy laws and regulations governing the processing of Personal Data applicable to the Authorized Users, which may include the EU General Data Protection Regulation 2016/679 (“GDPR”) and the California Consumer Privacy Act of 2018 (“California Consumer Privacy Act”) and will in all cases include the Personal Information Protection and Electronic Documents Act, S.C. 2000, c. 5. (“PIPEDA”).
(j) “Data Subject” means a natural person protected by Data Protection Laws and to whom the Personal Data relates.
(k) “Effective Date” means the date the first executed Order Form is delivered by Client to Recollective.
(l) “Earned Fees” mean the fees to which Recollective is absolutely entitled. Where an Order Form is not terminated prior to its Target Participant Access Start Date, all fees set out therein are deemed to be Earned Fees.
(m) “Fees” means the aggregate of the monetary obligations set forth in Article 4.
(n) “Improper Use” means:
(i) using the Web Interface to post, publish or transmit any text, graphic, video, audio recording or material that:
1) is false or misleading;
2) is defamatory;
3) invades another’s privacy, including posting another person’s, address, phone number, email address, social security/insurance number or credit card number;
4) is obscene, pornographic or offensive;
5) promotes bigotry, racism, hatred or harm against any individual or group;
6) infringes another’s Intellectual Property Rights;
7) is not within the individual’s right to transmit under any law or under contractual or fiduciary relationships;
8) contains software, software viruses, including Trojan horses, bots, worms or other harmful or destructive components or features designed to interrupt, destroy or limit the functionality of any computer software, hardware or telecommunications equipment;
9) violates the rights of any party, provides instructions for a criminal offence or encourages any conduct that would violate any applicable law or regulation or would give rise to civil liability;
10) consists of links to other websites containing content which, if posted directly, would constitute Improper Use;
(ii) engaging in conduct which in Recollective’s sole discretion:
1) restricts or inhibits any other Authorized User from using or enjoying the Service or poses a risk to the functionality of the Web Interface;
2) violates any applicable local, provincial, state, national, or international law or any regulations having the force of law;
3) has a commercial purpose (excluding research purposes), including unauthorized or unsolicited advertising;
4) constitutes:
a) stalking or harassing;
b) harvesting or collecting email addresses or other information of Authorized Users by electronic or other means for any unlawful purposes;
c) soliciting personal information from anyone under 18 or soliciting passwords or personally identifying information for commercial or unlawful purposes;
(iii) removing any copyright, trademark, or other proprietary rights notices contained in the Service; or
(iv) attempting to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Web Interface or Services.
(o) “Intellectual Property Right” means a right known at law or equity in any invention, innovation, improvement, development, discovery, computer program, device, trade secret, method, know-how, process, technique or the like, whether or not written or otherwise fixed in any form or medium, regardless of the media on which contained.
(p) “Order Form Term” means the term running from an Admin Access Start Date to the Admin Access End Date.
(q) “Order Form” means written agreements executed from time to time between Client and Recollective for access to the Web Interface and provision of Services in the form annexed hereto at Annex “A”.
(r) “Participant Access End Date” means the date set out in the applicable Order Form, or if there is no such date set out, the date on which the number of days set out in the applicable Order Form for Participant access to the Web Interface, counting from the date of the Target Participant Access Start Day, have been expended.
(s) “Participants” means Authorized Users who are research subjects.
(t) “Personal Data” means any information relating to an identified or identifiable natural person; 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.
(u) “Posted Content” means all content uploaded by Client or its Authorized Users to the Web Interface or provided to Recollective for inclusion in the Web Interface. Without limiting the generality of the foregoing, Posted Content includes Participants’ activity responses, discussion posts, comments, excerpts and tags and may take the form of text, photos or video.
(v) “Proprietary Information” and “Receiving Party” have the meanings set forth in Section 8.01.
(w) “Recollective” means Recollective Inc., a corporation incorporated under the laws of Canada, with registered offices at 300-100 Queen Street, Ottawa, Ontario, Canada, K1P 1J9.
(x) “Recollective Intellectual Property” means the Web Interface and all improvements, enhancements or modifications thereto; any software, applications, inventions or other technology developed by Recollective in connection with Services; any Recollective trademarks and patents used in connection to its provision of the Service; and any otherwise authored works, whether or not completed at the direction of Client or developed by Recollective as a consequence of Recollective’s provision of the Services.
(y) “Recollective Terms of Use” means the terms of use attached hereto as Annex B.
(z) “SaaS Term” means the period starting on the effective date of this Agreement and ending on the termination of this Agreement as set forth in Article 5.
(aa) “Services” means the services provided by Recollective to Client as set out at Article 3.
(bb) “Target Participant Access Start Date” means a date as indicated in a specific Order Form, or subsequently agreed between the parties, on which the Participants may access the Web Interface.
(cc) “Third Party” means a party who is not Recollective or Client.
(dd) “Web Interface” means the cloud-based web interface and its underlying software developed and owned by Recollective.
Article 2. WEB-BASED LICENSE
Section 2.01 Non-Exclusive License for Web Interface. For the duration of each Order Form Term Recollective grants to Client, and Client accepts, a worldwide, non-transferable, non-exclusive license and right to access the Web Interface via the internet and use the Web Interface as set out in such Order Form and this Agreement. Client acknowledges that its access and use of the Web Interface will be web-based only. The Web Interface will not be provided to Client in CD-ROM form (or any other form of media) and will not be installed on any servers or other computer equipment (including smart phones and tablets) owned or otherwise controlled by Client. Instead, the Web Interface will be hosted by Recollective and accessed and used by Client through the internet and Client's computers and the Authorized Users’ computers.
Section 2.02 Expiration of Order Form. On the Admin Access End Date of an Order Form, such Order Form will terminate, and notwithstanding that the SaaS Term has not expired, the license granted by Recollective to Client pursuant to such Order Form will terminate. Nothing in this provision extinguishes Client’s rights pursuant to other Order Form(s) that have not terminated.
Section 2.03 Client Intellectual Property License. For the duration of each Order Form Term plus sixty (60) days, Client hereby grants, and Recollective hereby accepts, a non-transferable, non-exclusive license to use only Client Intellectual Property contained in Client Customization Specification, or such other Client Intellectual Property that Client may specify in writing and provide to Recollective, for the strictly limited use of customizing the Web Interface.
Section 2.04 Posted Content License. For the duration of each Order Form Term plus sixty (60) days, Client hereby grants, and Recollective hereby accepts, a non- transferable, non-exclusive license to use the Posted Content for the purpose of hosting, storing, and making it accessible through the Service to Client and its Authorized Users.
Article 3. SERVICES
Section 3.01 Services. For the duration of each Order Form Term, Recollective shall provide to Client the following Services:
(a) Activation and Maintenance of a Web Interface. Recollective shall perform the following:
(i) No later than Admin Access Start Date, Recollective will activate a Web Interface for Client and provide to Client login credentials for the Web Interface and privileges permitting Client to customize the Web Interface and create accounts for Authorized Users.
(ii) If an Order Form provides for customization by Recollective of the Web Interface, Client provides Client Customization Specifications and Recollective approves the Client Customization Specifications, then Recollective will customize the Web Interface according to the Client Customization Specifications.
a. If Recollective rejects a non-trivial aspect of the Client Customization Specifications, Client may terminate the specific Order Form under which the Client Customization Specifications were issued upon twenty four (24) hours’ notice.
b. Any substantial changes to such specifications after submission to Recollective must be approved by Recollective and may be subject to additional charges.
ii) On the Target Participant Access Start Date, Recollective will provide Participants access to the Web Interface. At any time prior to the Target Participant Access Start Date, Client may adjust the Target Participant Access Start Date using the tools available within the Web Interface. No change may be made to the Target Participant Access Start Date after the Target Participant Access Start Date.
iii) On the Participant Access End Date, Recollective will cease providing Participants access to the Web Interface. Recollective will continue to provide Client access to the Web Interface until the Admin Access End Date.
(b) Hosting. Recollective shall perform the following:
(i) Recollective will host, on Recollective managed servers, the Web Interface such that it can be accessed over the internet. Hosting may be conducted on the servers of third parties subject to the provisions of Article 12.
(ii) Recollective will host, on Recollective’s managed servers, the Posted Content.
(c) Miscellaneous. Recollective shall provide Client with such other services as may be set out in the Order Form upon the terms contained therein.
Section 3.02 Service Level Agreement. Recollective warrants that the Services will be performed in accordance with, and be subject to, the Service Level Agreement set forth in Annex C (the “SLA”). The SLA shall also set out the technical support services to be provided by Recollective to Client.
Section 3.03 Expiration of Order Form. On the Admin Access End Date of an Order Form, such Order Form will terminate, and notwithstanding that the SaaS Term has not expired, Recollective will cease providing technical support services under such Order Form and may de-activate the Web Interface. Recollective will delete the Posted Content hosted pursuant to such Order Form within sixty (60) days of the Admin Access End Date of such Order Form.
Section 3.04 Interruption of Service. In case of Services unavailability, Client shall be entitled to an extension of the Order Form Term by one day for each day, or part thereof, of the Order Form Term in which there was a period where the Services were unavailable. Recollective’s obligation to extend the Order Form Term under this provision is limited to the lesser of the Order Form’s original length and ten (10) days. In the event of Services unavailability greater than ten (10) consecutive days, Recollective may, at the Client’s discretion, be deemed in material breach within the meaning of section 5.03(a). This provision sets out the sole remedy available to Client for Services unavailability.
Article 4. FEES AND PAYMENT
Section 4.01 Fees. Client agrees to pay Recollective all fees and other charges for the licenses granted and Services performed by Recollective hereunder, including, without limitation, the licenses to use the Web Interface, activation of the Web Interface, customization of the Web Interface by Recollective (if any), hosting the Web Interface, and technical support, at the rates set forth in each Order Form. Any increase thereto shall be approved in writing in advance by Client.
Section 4.02 Invoices. Recollective will bill through an invoice. Full payment for invoices issued in any given month must be received by Recollective thirty (30) days from the date the invoice is issued unless otherwise agreed in writing. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance or the maximum permitted by law, whichever is lower, and costs of collection.
Section 4.03 Disputed Billing. If Client believes that Recollective has billed Client incorrectly, Client must give notice to Recollective no later than thirty (30) days from the date of the invoice in which the error or problem appeared in order to be eligible for an adjustment or credit. Adjustments or credits will be issued at the sole discretion of Recollective. Recollective is released from claims for disputed invoices where notice is given outside of thirty (30) days from the date of the invoice. This provision sets out the sole remedy available to Client for disputed billing.
Section 4.04 Taxes. Client shall be responsible for any and all taxes (including, but not limited to, federal, provincial and / or state taxes), fees, duties or other amounts, however designated, including without limitation, value-added and withholding taxes, which are levied or based on any payment made pursuant to this Agreement or an Order Form.
Section 4.05 Earned Fees. Client acknowledges that the overwhelming balance of Recollective’s effort to provide the Web Interface is completed during set-up and activation of the Services. Notwithstanding any subsequent termination of this Agreement, on the Target Participant Access Start Date, the value of the applicable Order Form will be deemed to be Earned Fees.
Article 5. TERM AND TERMINATION
Section 5.01 SaaS Term. The term of this Agreement will begin on the Effective Date and will continue until terminated by mutual written consent or in accordance with this Article 5.
Section 5.02 Termination by Recollective. Without prejudice to any right or remedy Recollective may have against Client for breach or non-performance of this Agreement, Recollective shall have the right to terminate this Agreement and all Order Forms by written notice if any of the following events occur:
(a) A material breach of this Agreement by Client that is not cured within thirty (30) days of written notice of such breach delivered to Client;
(b) Non-payment to Recollective of any amounts due by Client that are not paid within thirty (30) days of written notice delivered to Client advising Client of its non-payment;
(c) Client ceases to conduct business in the ordinary course for a period of ten (10) consecutive days, becomes insolvent or commits an act of bankruptcy or becomes bankrupt, makes a general assignment for the benefit of creditors, becomes involved in voluntary or involuntary wind-up procedures, or if a receiver is appointed for the business of Client; or
(d) Client or any Authorized User engages in Improper Use of the Services and such Improper Use is not remedied to Recollective’s sole satisfaction within twelve (12) hours written notice.
Section 5.03 Termination by Client. Without prejudice to any right or remedy Client may have against Recollective for breach or non-performance of this Agreement, Client shall have the right to terminate this Agreement forthwith by written notice if any of the following events occur:
(a) A material breach of this Agreement by Recollective that is not cured within thirty (30) days of written notice of such breach delivered to Recollective;
(b) Recollective ceases to conduct business in the ordinary course for a period of ten (10) consecutive days, becomes insolvent or commits an act of bankruptcy or becomes bankrupt, makes a general assignment for the benefit of creditors, becomes involved in voluntary or involuntary wind-up procedures, or if a receiver is appointed for the business of Recollective; or
(c) Pursuant to section 4.3 of the Data Processing Agreement.
Section 5.04 Effect of Termination. Upon termination of this Agreement:
(a) Recollective will cease to perform the Services and all licenses granted by Recollective to Client will terminate;
(b) All work in progress and Earned Fees will become due and payable immediately by Client; and
(c) Each party will immediately return all materials, return or destroy all Proprietary Information in its possession belonging to the other party, and certify such return or destruction.
Article 6. RESTRICTIONS AND RESPONSIBILITIES
Section 6.01 Client’s Equipment. Client shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, or access the Web Interface, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Client shall also be responsible for maintaining the security of the Equipment, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Client’s account or the Equipment with or without Client’s knowledge or consent.
Section 6.02 Authorized Users. Client acknowledges that it shall be solely responsible for the actions of its Authorized Users and for Posted Content uploaded to the Web Interface. Although Recollective may occasionally monitor Posted Content for quality control of its Services, Recollective does not and cannot actively censor Posted Content. Recollective assumes no responsibility for the truthfulness or accuracy of Posted Content and accepts no responsibility for defamatory, infringing or otherwise actionable Posted Content that Client or its Authorized Users upload or otherwise provide to Recollective.
Section 6.03 Improper Use. Client agrees that neither it nor its Authorized Users will engage in Improper Use. Client agrees that it will cause its Authorized Users to agree to the Recollective Terms of Use, or enter into an agreement imposing the same terms and conditions as the Recollective Terms of Use, including terms satisfying the disclosure and consent requirements imposed by Data Protection Laws, prior to granting access to the Web Interface. Client acknowledges that Recollective may suspend or disable an account of an Authorized User if Recollective suspects that the Authorized User has engaged in Improper Use.
Section 6.04 No Spam. Client shall not use the Service to send electronic messages to persons in contravention of Anti-Spam Laws. Client shall not use the Service to send electronic messages to any person except that:
(a) such person shall have consented to receive electronic messages from Client;
(b) contact information for such person shall have been provided to Client by Recollective; or
(c) if contact information for such person has been provided to Client by a third party, such third party shall have represented in writing to Client that such person consented to receive electronic messages from Client.
Article 7. INTELLECTUAL PROPERTY
Section 7.01 Recollective Intellectual Property. Recollective shall own and retain all right, title and interest in the Recollective Intellectual Property.
Section 7.02 Client Intellectual Property. Client shall own and retain all right, title and interest in the Client Intellectual Property. As between Client and Recollective, Posted Content remains the property of Client at all times.
Section 7.03 Publicity. Recollective may use Client’s name and trademark as a reference for marketing and promotional purposes on Recollective’s website and in other communications with Recollective’s existing and prospective customers. Client may opt-out as being listed as a reference by sending notice to Recollective. Upon receipt of such notice, Recollective will cease using Client’s name and trademark as set out in this section and remove Client’s name and trademark from its website.
Article 8. CONFIDENTIALITY AND PROPRIETARY RIGHTS
Section 8.01 Proprietary Information. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose information of a confidential or proprietary nature, including business, technical or financial information, relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Recollective includes non-public information regarding features, pricing, functionality and performance of the Web Interface and Services. Proprietary Information of Client includes non-public data provided by Client to Recollective to enable the provision of the Services including all Posted Content. All Proprietary Information shall remain the property of the Disclosing Party.
Section 8.02 The Receiving Party agrees:
(a) To take reasonable precautions to protect such Proprietary Information by using the same level of care and discretion that the Receiving Party uses with respect to its own proprietary information, which will be in no case less than reasonable care and discretion; and
(b) Not to use (except in the performance of the Services or as otherwise permitted herein) or divulge to any Third Party any such Proprietary Information.
The Disclosing Party agrees that the foregoing shall not apply with respect to any information that the Receiving Party can document:
(a) Is or becomes generally available to the public through no act or omission of the Receiving Party;
(b) The Receiving Party can document was in its lawful possession or known by it prior to receipt from the Disclosing Party without any duty to keep such information confidential;
(c) Was rightfully disclosed to it without restriction or duty of confidentiality by a Third Party;
(d) Was independently developed without use of any Proprietary Information of the Disclosing Party; or
(e) Is required to be disclosed by law in accordance with Section 8.03 below.
Section 8.03 Notwithstanding anything to the contrary, the Receiving Party may disclose the Proprietary Information if compelled or required to do so by statute, court of law, other legal or regulatory process, or the rules of any exchange on which securities of the Receiving Party or its controlled affiliates are traded; in such event the Receiving Party will (i) if permissible, give the Disclosing Party prompt written notice of an impending disclosure pursuant to this sentence, (ii) provide reasonable assistance to the Disclosing Party in opposing or limiting the compelled or required disclosure and (iii) make only such disclosure as is compelled or required.
Section 8.04 Reverse Engineering and Unauthorized Sharing. Client will not, directly or indirectly:
(a) Reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Web Interface;
(b) Modify, translate, or create derivative works based on the Web Interface; or
(c) Without the written consent of Recollective, share login information or otherwise provide access to the Web Interface to a person who is not a genuine research subject, moderator, or employee or agent of Client.
Article 9. WARRANTY AND DISCLAIMER
Section 9.01 Good Standing. Each party represents and warrants to the other party that: (a) it is duly organized, validly existing, and in good standing as a corporation or other entity under the laws of the jurisdiction of its incorporation or other organization, (b) it has, and throughout the SaaS Term, will retain, the full right, power, and authority to enter into the Agreement and perform its obligations hereunder, (c) the execution of this Agreement by its representative set forth below has been duly authorized by all necessary corporate or organizational action of such party, and (d) when executed and delivered by both parties, this Agreement will constitute the legal, valid, and binding obligation of such party, enforceable against such party in accordance with its terms.
Section 9.02 Warranty. Recollective warrants that it will use commercially reasonable efforts to maintain the Services in a manner that minimizes errors and interruptions and will perform the Services in a professional and workmanlike manner.
Section 9.03 Disclaimer. EXCEPT AS OTHERWISE PROVIDED HEREIN RECOLLECTIVE DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE. SERVICES MAY BE TEMPORARILY UNAVAILABLE FOR SCHEDULED MAINTENANCE OR FOR UNSCHEDULED EMERGENCY MAINTENANCE, EITHER BY RECOLLECTIVE OR BY THIRD PARTY PROVIDERS, OR BECAUSE OF OTHER CAUSES BEYOND RECOLLECTIVE’S REASONABLE CONTROL. RECOLLECTIVE DOES NOT WARRANT THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. THE SERVICES ARE PROVIDED “AS IS” AND RECOLLECTIVE DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
Article 10. INDEMNITY
Section 10.01 Recollective Indemnity for Client. Provided that Recollective is given prompt notice of such claim and is given information, reasonable assistance and the authority to defend or settle said claim, Recollective shall defend, indemnify and hold Client, its respective directors, officers, employees, agents, successors and assigns harmless against any Third Party claims, demands, actions, losses, liabilities, damages, fines, penalties, judgments or expenses, including reasonable legal fees:
(a) Resulting from the Services infringing upon any Intellectual Property Right during the SaaS Term; and
(b) Resulting from Recollective’s failure to comply with its obligations under Data Protection Laws to the degree that it is responsible.
In the defence or settlement of any claim relating to any Intellectual Property Right infringement, Recollective shall, in its reasonable judgment and at its option and expense:
(a) Obtain for Client the right to continue using the Services; or
(b) Replace or modify the Services so that it becomes non-infringing while giving substantially equivalent functionality.
Recollective shall have no liability to indemnify and defend Client to the extent:
(a) The alleged infringement is based on infringing information, data, software, applications, services, or programs created or furnished by or on behalf of Client;
(b) The alleged infringement is the result of a modification to the Web Interface made by anyone other than Recollective; or
(c) Client uses the Web Interface other than in accordance with this Agreement or any Order Form.
Section 10.02 Client Indemnity for Recollective. Provided that Client is given prompt notice of such claim and is given information, reasonable assistance and the authority to defend or settle said claim, Client shall defend, indemnify and hold Recollective, its respective directors, officers, employees, agents, successors and assigns harmless against any claims, demands, actions, losses, liabilities, damages, fines, penalties, judgments or expenses, including reasonable legal fees:
(a) Resulting from Client’s Improper Use of the Web Interface or Services;
(b) Resulting from the Authorized Users’ Improper Use of the Web Interface or Services;
(c) That any Posted Content infringes or violates any rights of third parties, including without limitation, rights of publicity, rights of privacy, intellectual property, trade secrets or licenses;
(d) Resulting from Client’s failure to comply with its obligations under Data Protection Laws to the degree that it is responsible; or
(e) Resulting from Client’s failure to comply with its obligations under Anti-Spam Laws.
Section 10.03 Mutual Indemnity. Each party (“Indemnifying Party”) shall indemnify and hold the other party (“Indemnified Party”) harmless against any Third Party claim, including costs and reasonable attorney's fees, in which the Indemnified Party is named as a result of the gross negligence or intentional acts or failure to act by the Indemnifying Party, its employees or agents, while performing its obligations under this Agreement, which result in death, personal injury or tangible property damage.
Section 10.04 Survival. The terms of this Article 10 shall survive the termination this Agreement.
Article 11. LIMITATION OF LIABILITY
Section 11.01 EXCEPT FOR THE CONFIDENTIALITY OBLIGATIONS PROVIDED AT ARTICLE 8 AND FOR THE INDEMNIFICATION OBLIGATIONS PROVIDED AT ARTICLE 10, EACH PARTY’S MAXIMUM LIABILITY FOR ANY ACTION ARISING UNDER THESE TERMS AND CONDITIONS, REGARDLESS OF THE FORM OF ACTION AND WHETHER IN TORT, CONTRACT OR OTHER FORM OF LIABILITY, SHALL IN NO EVENT EXCEED THE FEES PAID BY CLIENT TO RECOLLECTIVE DURING THE TWO-YEAR PERIOD PRECEDING NOTICE TO THE LIABLE PARTY BY THE INJURED PARTY OF THE INJURED PARTY’S LOSS. IN ANY EVENT, NEITHER PARTY SHALL BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION, LOST DATA, LOST PROFITS, OPPORTUNITIES OR CONTRIBUTIONS, LOSS OF USE, GOODWILL, BUSINESS INTERRUPTION, COST OF COVER, OR OTHER PECUNIARY OR NON-PECUNIARY LOSS, HOWEVER ARISING, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. RECOLLECTIVE SHALL HAVE NO LIABILITY OR RESPONSIBILITY IN THE EVENT OF ANY LOSS OR INTERRUPTION IN WEB INTERFACE ACCESS DUE TO CAUSES BEYOND ITS REASONABLE CONTROL OR FORESEEABILITY, SUCH AS LOSS, INTERRUPTION OR FAILURE OF TELECOMMUNICATIONS OR DIGITAL TRANSMISSIONS AND LINKS, INTERNET SLOWDOWN OR FAILURES. THE PARTIES AGREE TO THE ALLOCATION OF RISK SET FORTH HEREIN.
Section 11.02 Survival. The terms of this Article 11 shall survive the termination of this Agreement.
Article 12. PRIVACY
Section 12.01 Privacy Roles and Responsibilities. The Parties agree that Client is the controller of Personal Data, and therefore determines the purposes and means of the processing of Personal Data. Recollective will only process Personal Data on behalf of Client and only on the documented instructions from Client. Client is responsible for obtaining and setting out the legal justification for the collection of Personal Data.
Section 12.02 Data Processing Agreement. The parties agree to the terms of the Data Processing Agreement annexed hereto as Annex D.
Section 12.03 Survival. The terms of this Article 12 shall survive the termination of this Agreement.
Article 13. MISCELLANEOUS
Section 13.01 Force Majeure. Except for Client's obligation to pay Recollective, neither party shall be liable for any failure to perform its obligations under this Agreement if prevented from doing so by a cause or causes beyond its control, including without limitation, acts of God or public enemy, failure of suppliers to perform, fire, floods, storms, epidemic or quarantine restrictions, earthquakes, riots or civil commotion, strikes, war, restraints of government, freight or other embargoes, weather conditions.
Section 13.02 Independent Contractor Status. Nothing in this Agreement is intended to construe the existence of a partnership, joint venture or agency relationship between Client and Recollective.
Section 13.03 Notices. All notices or other communications referenced under this Agreement shall be made in writing and sent to “Attention: General Counsel” at Recollective’s address as set forth in the Order Form and to Client's address set forth in the Order Form, or to the address otherwise designated from time to time in writing by the Parties. All notices shall be deemed given to the other party if delivered receipt confirmed using one of the following methods: registered or certified first class mail, postage prepaid; recognized courier delivery; or electronic mail.
Section 13.04 Governing Law and Arbitration. The laws of the Province of Ontario and the laws of Canada applicable therein, excluding choice of law principles, shall exclusively govern this Agreement and all claims, actions, and interpretations associated therewith or the Services. Any disputes or claims under this Agreement or their breach shall be submitted to and resolved exclusively by arbitration conducted in accordance with the Arbitration Act, 1991, S.O. 1991, c. 17. Any decision in arbitration shall be final and binding upon the Parties. Judgment may be entered thereon in any court of competent jurisdiction. Notwithstanding the above, Recollective may sue in any court for infringement of its proprietary or Intellectual Property Rights.
Section 13.05 Severability. If any provision of this Agreement is held to be invalid or unenforceable, the invalidity or unenforceability will not affect the other provisions of this Agreement.
Section 13.06 Complete Agreement. This Agreement, and the annexes thereto, and any prior or subsequent Order Forms constitute the complete and exclusive agreement between the Parties with respect to the subject matter hereof, superseding any prior agreements and communications (both written and oral) regarding such subject matter.
Section 13.07 Agreement in English. The Parties hereto have required that this Agreement as well as any notice, document or proceedings relating hereto be written in English. Les Parties aux présentes ont exigé que le présent contrat ainsi que tout autre avis, document ou procédure s'y rapportant soit rédigé en anglais.
Section 13.08 Assignment. Neither this Agreement nor any rights, licenses or obligations hereunder, may be assigned by either party without the prior written approval of the non-assigning party.
Section 13.09 Remedies. Except as otherwise specifically stated herein, remedies shall be cumulative and there shall be no obligation to exercise a particular remedy. The failure by either party to enforce any rights granted hereunder or to take action against the other party in the event of any breach of this Agreement will not be deemed a waiver by that party as to the subsequent enforcement of rights or subsequent actions in the event of future breaches.
Section 13.10 Order of Precedence. In the event of any conflict between the terms of this Agreement, an Order Form, the Service Level Agreement and the Data Processing Agreement the order of precedence shall be as follows:
(a) an Order Form;
(b) this Agreement;
(c) the Data Processing Agreement; and
(d) the Service Level Agreement.
ANNEX A
ORDER FORM TEMPLATE
ANNEX B
RECOLLECTIVE TERMS OF USE
RECOLLECTIVE TERMS OF USE
Preamble
We, , (hereinafter “We” or “Us”) welcome you to our Insights Community Website (we will call it our “Website” from here on).
Our Website is an interactive online space. The software was designed by Recollective Inc. (“Recollective”) and Recollective helps us operate it. Before you log on and start participating, please read the rules below. They explain your rights and responsibilities while using our Website.
We have invited you to use our Website because we want to hear what you have to say and we want to incorporate your opinions into our project. This means that we need to be able to use any of the material you post to the Website whether it’s text, pictures, audio or video. By logging into our Website, you agree to assign us the intellectual property rights to the content that you post or upload on the Website.
While we want you to be creative and expressive, only post content that you have the right to post. If you post material that belongs to someone who hasn’t given us permission to use it, it may get you into legal trouble with the owner and we won’t be able to use it. You are responsible for everything that is posted from your account.
We take your privacy very seriously. We want you to know what information we will be gathering, what we’re using it for, and how long we’ll keep it. We promise we won’t gather more than we need or keep any of your personal information longer than necessary to carry out the project you agreed to participate in. By logging into our Website, you consent to us collecting the personal information we need to set up your account and the personal information we have listed at section 3 below. The personal information you provide may be transferred from your country to be processed in Canada, the United States, the European Union or South Africa.
If you have any questions or concerns about privacy, or would like to review, correct or delete the personal information we have collected on you, please contact our privacy coordinator at [contact info] or by calling [toll free number].
Although we promise never to change our privacy obligations without telling you, these terms of use may change from time to time. Please check back here to keep yourself updated.
1. Access to the Web Interface
(1) ANY USE OF THE WEBSITE, OR THE SERVICES AVAILABLE ON THE WEBSITE FROM TIME TO TIME (including without limitation any software, programs, tools, components, upgrades, updates and all related applications, collectively the “Service”), IS SUBJECT TO AND CONDITIONAL UPON ASSENT TO AND COMPLIANCE WITH ALL OF THE TERMS OF USE BELOW (the “Agreement”). BY USING THE WEBSITE OR THE SERVICE YOU CONSENT TO BE BOUND BY THE AGREEMENT. THE AGREEMENT IS BETWEEN [CLIENT] (hereinafter “we” or “us”), RECOLLECTIVE AND YOU (a “User”), AN INDIVIDUAL OR AN INDIVIDUAL ACTING ON BEHALF OF A LEGAL ENTITY THAT WILL BE USING THE WEB INTERFACE OR THE SERVICE. IF WE OR RECOLLECTIVE SUSPECTS THAT YOU ARE IN VIOLATION OF ANY OF THE TERMS OF THE AGREEMENT, YOUR ACCESS TO THE WEBSITE MAY BE TERMINATED.
(2) We may change the terms of this Agreement or the Service at any time(s) and in our sole discretion, upon posting notice on the Website. Your continued use of the Website or Service shall constitute your consent to any changes made. If you do not agree to the new or different terms, you should not use the Website or the Service.
(3) As a condition of accessing the Website, you agree to provide accurate, current and complete information about yourself when you register for the Website, and you agree to keep your login information secure and not to share it with any third parties. You agree that you will be responsible for any activities undertaken through your login information and account.
2. Eligibility
(1) The Website and Service is only intended for users who are at least sixteen (16) years of age or older, or any such older minimum age which is required in the jurisdiction in which you reside. Anyone accessing, registering, or using the Website and Service who is under the age of 16 is completely unauthorized, unlicensed and in violation of these Terms of Use. By using the Website and Service, you represent and warrant that you are 16 years of age or older at the time of your access, registration or use of the Website and Service, and you agree to be bound and abide by all the terms and conditions of this Agreement.
(2) It is your sole responsibility to determine if your use of the Website and Service complies with the law in your jurisdiction. We specifically deny any liability to you or to any third party if your use of the Website and Service violates the law in the jurisdiction in which you reside.
(3) The Website and Service is available to and may only be used by individuals or entities that can form legally binding contracts under the law applicable to their country of residence. By accessing the Website, you warrant that you are capable of forming legally binding contracts in the law applicable to your country of residence. For avoidance of doubt, the ability to access the Website does not necessarily mean that the Website and your use thereto are legal under the laws, regulations or directives relevant to your country of residence.
3. Privacy
(1) In order to use the Website and the Service, you agree to allow us to gather the following information (“Personal Information”) about you:
(a) [List Personal Information gathered on the subjects]
(2) We gather this Personal Information from you in the following ways:
(a) [List categories of sources from which personal information is collected]
(3) We are gathering this Personal Information because:
(a) [List reasons for gathering the personal information]
(4) We will use your Personal Information only in the following ways:
(a) As required by law
(b) [List the uses of the Personal Information]
(5) Your Personal Information will be deleted or anonymized:
(a) Within sixty (60) days of us completing the project in which you agreed to participate.
(b) Within seven (7) days upon your written request to us or Recollective.
(6) We will not sell your Personal Information unless you consent. However, we will share your Personal Information with our service providers, including Recollective, so that we can host and operate the Website.
4. Intellectual Property
(1) You agree to irrevocably assign to us all your right, title and interest in and to the intellectual property that you post to the Website.
5. General Prohibitions
(1) You agree not to do any of the following while using the Website or Service:
i. use the Website to post, publish or transmit any text, graphic, video, audio recording or material that:
a. is false or misleading;
b. is defamatory;
c. invades another’s privacy, including posting another person’s, address, phone number, email address, social security/insurance number or credit card number;
d. is obscene, pornographic or offensive;
e. promotes bigotry, racism, hatred or harm against any individual or group;
f. infringes another’s intellectual property rights;
g. is not within your right to transmit under any law or under contractual or fiduciary relationships;
h. contains software, software viruses, including Trojan horses, bots, worms or other harmful or destructive components or features designed to interrupt, destroy or limit the functionality of any computer software, hardware or telecommunications equipment;
i. violates the rights of any party, provides instructions for a criminal offence or encourages any conduct that would violate any applicable law or regulation or would give rise to civil liability;
j. consists of links to other websites containing content which, if posted directly, would be prohibited under this section 5(1);
ii. engage in conduct which in our sole discretion:
a. restricts or inhibits any other User from using or enjoying the Service or poses a risk to the functionality of the Website;
b. violates any applicable local, provincial, state, national, or international law or any regulations having the force of law;
c. has a commercial purpose, including unauthorized or unsolicited advertising;
d. constitutes:
(i) stalking or harassing;
(ii) harvesting or collecting email addresses or other information of Users by electronic or other means for any unlawful purposes;
(iii) soliciting personal information from anyone under 18 or soliciting passwords or personally identifying information for commercial or unlawful purposes;
iii. remove any copyright, trademark, or other proprietary rights notices contained in the Service; or
iv. attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Website or Service.
6. Disclaimers of all Warranties
(1) THE WEBSITE AND THE SERVICE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. WE, AND RECOLLECTIVE, EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. THE POSTING OF ANY MATERIAL OR INFORMATION ON THE WEB INTERFACE DOES NOT IMPLY ENDORSEMENT BY US OF THE SAME OR ANY ASSOCIATION WITH THEIR ORIGINATORS.
(2) Without limiting the foregoing, we cannot and do not assure that other users of the Web Interface are or will be complying with this Agreement, and, as between you and us, you hereby assume all risk of harm or injury resulting from any such lack of compliance.
7. Limitation of Liability
(1) UNDER NO CIRCUMSTANCES SHALL WE OR RECOLLECTIVE BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES (I) ARISING OUT OF THE USE OR THE INABILITY TO USE ANY PART OF THE WEBSITE OR THE SERVICE OR ANY WEB INTERFACES LINKED TO THE WEBSITE, (II) RESULTING FROM ANY INACCURACIES OR ERRORS OF INFORMATION WITH RESPECT TO THE CONTENT WHETHER RECEIVED AS A RESULT OF USING THE WEBSITE OR THE SERVICE OR NOT, (III) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE WEBSITE OR THE SERVICE; IN EACH CASE, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, REPUTATION, GOODWILL, USE, DATA OR OTHER INTANGIBLE, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE.
8. Indemnification
(1) YOU RELEASE, AND AGREE, AT YOUR OWN EXPENSE, TO INDEMNIFY, DEFEND AND HOLD HARMLESS RECOLLECTIVE, US, AND BOTH RECOLLECTIVE’S AND OUR OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND AFFILIATES, FROM ALL LIABILITIES, CLAIMS, ALLEGED CLAIMS, LOSS AND DAMAGES (OF EVERY KIND, WHETHER KNOWN OR UNKNOWN AND SUSPECTED OR UNSUSPECTED), AND INCLUDING REASONABLE ATTORNEY’S FEES RELATED TO IN ANY WAY TO: (I) YOUR USE OF, ACCESS TO OR RELIANCE ON THE WEBSITE, THE SERVICE OR THE CONTENT; OR (II) ARISING OUT OF YOUR ACTS OR OMISSIONS, INCLUDING BREACH OR NON-PERFORMANCE OF THIS AGREEMENT AND ANY VIOLATION OF ANY THIRD PARTY RIGHTS..
(2) We will provide you with written notice of such claim, suit or action. You will not enter into any settlement or compromise of any such claim without our prior written consent. We reserve the right, in our sole discretion, to assume the exclusive defense and control of any matter subject to indemnification by you. In all events, you shall cooperate fully in the defense of any claim.
9. Termination
(1) This Agreement is effective until terminated by us at any time without notice. We may terminate your right to use the Website immediately, without notice to you if, in our sole discretion, you fail to comply with any of these terms of use or engage in any fraudulent activity. In the event of termination, you are no longer authorized to access the benefits of the Website or the Services; and the disclaimers and limitations of liabilities set forth in these terms of use, shall survive the termination of this agreement.
10. Whole Agreement
(1) This agreement constitutes the entire agreement between you, us, and Recollective related to the Website.
11. Governing Law and Exclusive Courts
(1) This Agreement will be governed by the laws of the Province of Ontario without regard to its choice of law or conflicts of law principles. You and we consent to the exclusive jurisdiction and venue in the courts of the Province of Ontario, except that temporary relief to enjoin infringement of intellectual property rights may be sought in any court.
ANNEX C
SERVICE LEVEL AGREEMENT
ANNEX D
DATA PROCESSING AGREEMENT
This Data Processing Agreement (this “DPA”) is executed by and between Recollective Inc. (“Recollective”) and you (“Client”) and is annexed to and supplements our Master Software as a Service Agreement and any Order Forms made between Recollective and Client pursuant to the Master Software as a Service Agreement (collectively, the “Agreement”). Unless otherwise defined this DPA, all capitalized terms not defined in this DPA will have the meanings given to them in the Agreement.
1. Definitions.
a. “Data Controller” means Client, as the entity which determines the purposes and means of the Processing of Personal Data.
b. “Data Processor” means Recollective, as the entity which Processes Personal Data on behalf of the Data Controller.
c. “Data Protection Laws” mean the data protection and privacy laws and regulations governing the processing of Personal Data applicable to the Authorized Users, which may include the EU General Data Protection Regulation 2016/679 (“GDPR”) and the California Consumer Privacy Act of 2018 (“California Consumer Privacy Act”) and will in all cases include the Personal Information Protection and Electronic Documents Act, S.C. 2000, c. 5. (“PIPEDA”).
d. “Personal Data” means any information relating to an identified or identifiable natural person; 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. Personal Data includes the following:
a. Identifiers such as a real name, alias, postal address, unique personal identifier, online identifier IP address, email address, account name, government social security plan number, driver’s license number, passport number, or other similar identifiers.
b. Characteristics of protected classifications under the Data Protection Laws applicable to the Authorized User.
c. Commercial information including records of personal property, products or services purchased, obtained or considered, or other purchasing or consuming histories or tendencies.
d. Biometric information.
e. Internet or other electronic network activity information including, but not limited to, browsing history, search history and information regarding a consumer’s interaction with a website, application or advertisement.
f. Geolocation data.
g. Audio, electronic, visual, thermal, olfactory or similar information.
h. Professional or employment-related information.
i. Education information that is not publicly available.
j. Inferences drawn from any of the information identified in this subdivision to create a profile about an Authorized User reflecting his or her preferences, characteristics, psychological trends, preferences, predispositions, behavior, attitudes, intelligence, abilities and aptitudes.
e. “Processing” means any operation or set of operations which is performed upon Personal Data, whether or not by automatic means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction. “Process”, “processes” and “processed” will be interpreted accordingly.
f. “Recollective Network” means Recollective’s computers, servers, networking equipment, and host software systems that are within Recollective’s control and are used to provide the Services.
g. “Security Incident” either (a) a breach of security of Recollective Security Standards leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, any Personal Data; or (b) any unauthorised access to Recollective equipment or facilities, where in either case such access results in destruction, loss, unauthorised disclosure, or alteration of Personal Data.
h. “Security Standards” means the security standards put in place by Recollective from time to time which will in no event be less than the prevailing industry standard.
i. “Services” means any services we offer you pursuant to the Agreement that could involve our Processing of Personal Data.
j. “Sub-processor” means any Data Processor engaged by Processor to Process data on behalf of Data Controller.
2. Data Processing.
2.1. Scope and Roles. This DPA applies when Personal Data is processed by Recollective. In this context, Recollective shall act as the Data Processor on behalf of Client as the Data Controller with respect to Personal Data.
2.2. Details of Data Processing. The subject matter of processing of Personal Data by Recollective is the performance of the Services pursuant to the Agreement. Recollective shall only Process Personal Data on behalf of and in accordance with Client’s documented instructions for the following purposes: (i) Processing in accordance with the Agreement; (ii) Processing initiated by Client’s Authorized Users in their use of the Services; (iii) Processing to comply with other documented, reasonable instructions provided by Clients (ex. via email) where such instructions are consistent with the terms of the Agreement. Recollective shall not be required to comply with or observe Client’s instructions if such instructions would violate Data Protection Laws.
2.3. Restriction on Retention, Use and Disclosure. Recollective will not:
2.3.1. Sell, rent, release, disclose, disseminate, make available, transfer, or otherwise communicate orally, in writing, or by electronic or other means, Personal Data to a third party for monetary or other valuable consideration.
2.3.2. Retain, use, or disclose Personal Data for any purpose other than for the specific purpose of performing the services specified in the Agreement, including retaining, using, or disclosing the Personal Data for a commercial purpose other than providing the services specified in the Agreement.
2.3.3. Retain, use, or disclose Personal Data outside of the direct business relationship between Recollective and Client.
2.4. Duration of Processing. Subject to Section 8 of this DPA, Recollective will Process Personal Data during the term of the Agreement, but will abide by the terms of this DPA for the duration of the Processing if in excess of that term, and unless otherwise agreed upon in writing.
2.5. Categories of Data Subjects. Client or its Authorized Users may upload Personal Data in the course of Clients’ use of the Services, the extent to which Personal Data is uploaded is determined and controlled by Client in its sole discretion, and may include, but is not limited to Personal Data relating to the following categories of Data Subjects:
2.5.1. Prospects, Clients, business partners and vendors of Client (who are natural persons)
2.5.2. Employees or contact persons of Client’s prospects, Clients, business partners and vendors
2.5.3. Employees, agents, advisors, freelancers of Client (who are natural persons)
2.5.4. Participants in a Client-operated research program or any other user who is authorized to use the Services by Client.
2.6. Type of Personal Data. Client or its Authorized Users may upload Personal Data in the course of its use of the Services, the type of and extent to which is determined and controlled by Client in its sole discretion, and which may include, but is not limited to the following categories of Personal Data of Data Subjects:
2.6.1 Name
2.6.2 Address
2.6.3 Date of birth
2.6.4 Email address
2.6.5 Other data collected that could directly or indirectly identify Authorized Users.
2.7. Confidentiality of Personal Data. Recollective will not disclose Personal Data to any government or any other third party except as necessary to comply with the law or a valid and binding order of a law enforcement agency (such as a court order). If a law enforcement agency sends Recollective a demand for Personal Data, Recollective will attempt to redirect the law enforcement agency to request that data directly from Client. As part of this effort, Recollective may provide Client’s basic contact information to the law enforcement agency. If compelled to disclose Personal Data to a law enforcement agency, then Recollective will give Client reasonable notice of the demand to allow Client to seek a protective order or other appropriate remedy unless Recollective is legally prohibited from doing so.
3. Security
3.1. Security Standards. Recollective has implemented and will maintain Security Standards that constitute appropriate technical and organisational measures to protect the Personal Data.
3.2. Data Subject Rights. Taking into account the nature of the Services, Recollective offers Client certain controls that Client may elect to use to retrieve, correct, delete or restrict use and sharing of Personal Data as described in the Services. Client may use these controls as technical and organisational measures to assist it in connection with its obligations under applicable privacy laws, including its obligations relating to responding to requests from Data Subjects. As commercially reasonable, and to the extent lawfully required or permitted, Recollective shall promptly notify Client if Recollective directly receives a request from a Data Subject to exercise such rights under any applicable data privacy laws (“Data Subject Request”). In addition, where Client’s use of the Services limits its ability to address a Data Subject Request, Recollective may, where legally permitted and appropriate and upon Client’s specific request, provide commercially reasonable assistance in addressing the request, at Client’s cost (if any).
4. Sub-processing.
4.1. Authorised Sub-processors. Client agrees that Recollective may use Sub-processors to fulfil its contractual obligations under its Agreement and this DPA or to provide certain services on its behalf, such as providing hosting services. Client hereby consents to Recollective’s use of Sub-processors as described in this Section. Except as set forth in this Section or as otherwise explicitly authorized by Client, Recollective will not permit any other sub-processing activities.
4.2. Sub-processor Obligations. Where Recollective uses any authorised Sub-processor as described in Section 4.1:
4.2.1.1. Recollective will restrict the Sub-processor’s access to Personal Data only to what is necessary to maintain the Services or to provide the Services to Client and any Authorized Users in accordance with the Services. Recollective will prohibit the Sub-processor from accessing Personal Data for any other purpose;
4.2.1.2. Recollective will enter into a written agreement with the Sub-processor and, to the extent that the Sub-processor is performing the same data processing services that are being provided by Recollective under this DPA, Recollective will impose on the Sub-processor the same contractual obligations that Recollective has under this DPA; and
4.2.1.3. Recollective will remain responsible for its compliance with the obligations of this DPA and for any acts or omissions of the Sub-processor that cause Recollective to breach any of Recollective’s obligations under this DPA.
4.3. New Sub-processors. From time to time, Recollective may engage new Sub-processors under and subject to the terms of this DPA. In such case, Recollective will provide advance notice (via our website and email) prior to any new Sub-processor obtaining any Personal Data. If Client does not approve of a new Sub-processor, then Client may terminate any Services without penalty by providing, within 10 days of receipt of notice from us, written notice of termination that includes an explanation of the reasons for your non-approval.
5. Security Breach Notification.
5.1. Security Incident. If Recollective becomes aware of a Security Incident, Recollective will without undue delay: (a) notify Client of the Security Incident; and (b) take reasonable steps to mitigate the effects and to minimise any damage resulting from the Security Incident.
5.2. Recollective Assistance. To assist Client in relation to any personal data breach notifications Client is required to make under any applicable privacy laws, Recollective will include in the notification under section 5.1 such information about the Security Incident as Recollective is reasonably able to disclose to Client, taking into account the nature of the Services, the information available to Recollective, and any restrictions on disclosing the information, such as confidentiality.
5.3. Failed Security Incidents. Client agrees that:
5.3.1. A failed Security Incident will not be subject to the terms of this DPA. A failed Security Incident is one that results in no unauthorised access to Personal Data or to any of Recollective’s Network, equipment, or facilities storing Personal Data, and may include, without limitation, pings and other broadcast attacks on firewalls or edge servers, port scans, unsuccessful log-on attempts, denial of service attacks, packet sniffing (or other unauthorised access to traffic data that does not result in access beyond headers) or similar incidents; and
5.3.2. Recollective’s obligation to report or respond to a Security Incident under this Section is not and will not be construed as an acknowledgement by Recollective of any fault or liability of Recollective with respect to the Security Incident.
5.4. Communication. Notification(s) of Security Incidents, if any, will be delivered to one or more of Client’s administrators by any means Recollective selects, including via email. It is Client’s sole responsibility to ensure Client’s administrators maintain accurate contact information with Recollective and secure transmission at all times.
6. Client Rights.
6.1. Independent Determination. Client is responsible for reviewing the information made available by Recollective relating to data security and its Security Standards and making an independent determination as to whether the Services meets Client’s requirements and legal obligations as well as Client’s obligations under this DPA. The information made available is intended to assist Client in complying with Client’s obligations under applicable privacy laws, including the GDPR, in respect of data protection impact assessments and prior consultation.
6.2. Client Audit Rights. Client has the right to confirm Recollective’s compliance with this DPA as applicable to the Services, including specifically Recollective’s compliance with its Security Standards, by exercising a reasonable right to conduct an audit or inspection by making a specific request of Recollective in writing to the address set forth in its Agreement. If Recollective declines to follow any instruction requested by Client regarding a properly requested and scoped audit or inspection, Client is entitled to terminate this DPA and the Agreement. This Section will also apply insofar as Recollective carries out the control of Sub-processors on behalf of Client.
7. Transfers of Personal Data. Personal Data may be transferred outside of its place of origin and processed in Canada, the United States, the European Union or South Africa.
8. Termination of the DPA. This DPA will continue in force until the termination of Recollective’s processing in accordance with the Agreement.
9. Deletion of Personal Data. Recollective will delete Personal Data within sixty (60) days following the termination of the Order Form Term for the applicable project or at any time on request.
10. Limitations of Liability. The liability of each party under this DPA will be subject to the exclusions and limitations of liability set out in the Agreement. Client agrees that any regulatory penalties incurred by Recollective in relation to the Personal Data that arise as a result of, or in connection with, Client’s failure to comply with its obligations under this DPA and any applicable privacy laws will count towards and reduce Recollective’s liability under the Agreement as if it were liability to Client under the Agreement.
11. Entire Agreement; Conflict. This DPA supersedes and replaces all prior or contemporaneous representations, understandings, agreements, or communications between Client and Recollective, whether written or verbal, regarding the subject matter of this DPA, including any data processing addenda entered into between Recollective and Client with regard to the processing of personal data and on the free movement of such data. Except as amended by this DPA, the Agreement will remain in full force and effect.
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