Terms & Conditions
1.1 For the purpose of these Terms and Conditions, the following capitalized terms shall have the meaning assigned to them below:
Means an account enabling a person to access and use the Responsum application. A user account within Responsum can be appointed with different access rights. These access rights can both be administrative rights (Access to all modules), rights to specific modules/sub-modules or rights to sets of modules within Responsum.
Means any annex to these Terms and conditions, which will be an integral part of it.
Means this agreement, any annexes attached thereto, the Quote, as well as any amendments made thereto from time to time in accordance with its terms.
Means any information disclosed, whether in writing or verbally, between the parties (and/or any of their Representatives) in the framework of and/or pursuant to this Agreement, in whichever format, which by explicit reference is marked “Confidential” or which by nature or through the circumstances under which it is disclosed must be reasonably deemed confidential. Confidential Information shall include (but is not limited to) the following: knowhow, ideas, and other technical, business, financial, client and product development plans, forecasts, strategies, techniques and information, computer programs, object and/or computer code, modules, scripts, algorithms, features and modes of operation, inventions (whether or not patentable), techniques, processes, schematics, testing procedures, software design and architecture, design and function specifications, analysis (whether or not related to a specific (future) product) and performance information, user documentation including Documentation as defined below, internal documentation, designs, ideas, concepts, metaphors and content for sites on the World Wide Web, the Internet and other computer networks, research, development, trade secrets, analyses, memoranda, materials, trade or commercial names, trademarks, commercial terms and conditions, financial or business results, other documents or information which contain or reflect or are generated from such information;
Includes, but is not limited to, (where applicable) guides, manuals, materials, and any information appropriate or necessary for use of Responsum.
Date of entry into effect of this Agreement which shall be the date of signature.
Any and all (future) intellectual property rights pertaining to Responsum, in any country or jurisdiction, including but not limited to any patents, copyrights and neighbouring rights, trademarks, trade names and domain names, goodwill, design rights, rights related to software, database rights, know-how, trade secrets, all renewals or extensions of such rights and all similar or equivalent rights or forms of protection which are developed or will be developed, either registered, deposited, filed or not and including any and all applications for such rights.
Means the compliancy/accountability software tool, developed and owned by Provider, for privacy, security, data management and related services which are specified in Annex 1. This shall include software tools, published specifications and Documentation, as well as any future, updated, improved or otherwise modified version(s) of Responsum delivered by Provider (in its sole discretion) to Customer.
Means, in respect of a Party, its shareholders, directors, managers, proxy holders, consultants, contractors, counsel, advisors, employees, agents and any such persons acting within the framework of this Agreement in the name and on behalf of the Parties, regardless the status under which such representative is acting.
Access to the platform and, as applicable, any additional services, as set forth on the Quote.
The ordering document made by and between the Provider (as identified on the Quote) and the Customer (as identified on the Quote).
2. License and scope
2.1 As of the Effective Date and subject to the terms of this Agreement, Provider hereby grants to the Customer for the duration stipulated in the Quote a well-defined, non-transferable, non-exclusive, worldwide, revocable right to access and use Responsum and, in so far as necessary for the normal use of Responsum pursuant to this Agreement, the Annexes attached hereto, the IP Rights, and in any case limited to the Scope (as defined and set forth in this Article).
The scope of this License is limited to internal compliancy/accountability management with respect to privacy, security & data management within the normal course of Customer’s Business; when using Responsum, Customer shall respect this Agreement, all applicable laws and regulations including but not limited to Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (“GDPR”) , as well as any applicable subsequent or implementing legislation or terms concerning GDPR (all applicable laws, rules and regulations hereinafter: “Applicable Data Protection Law”), hereinafter referred to as the “Scope”.
2.2 Except to the extent expressly permitted in this Agreement or required by law on a non-excludable basis, the license granted by the Provider to the Customer under clause 2.1 is subject to the following prohibitions:
- The Customer shall not be entitled to sublicense its right to access and use Responsum;
- Responsum may only be used by the officers, employees, agents and subcontractors of the Customer.
- Responsum must not be used at any point in time by more than the number of concurrent users specified in the Quote, providing that the Customer may add or remove concurrent user licenses upon request.
- The License shall not extend to companies related to or associated with the Customer. Any extension of the License to companies belonging to the same group as the Customer, shall be subject of an extension of the License at financial terms to be agreed upon. Further, any expanded use of Responsum over and above the use as agreed pursuant to this License and as defined in the Quote, shall be subject to a specific agreement with the Provider.
- The Customer does not have the right to the Provider’s profiling algorithms but only seeks to obtain a right of use of Responsum. Provider shall ensure that these algorithms shall be held up to date at all times.
- The License does not include the right for Customer to incorporate the software into other software, applications, systems, websites and other products or to link the software to other products.
- Except for the prior written approval of the Provider, the Customer shall not use Responsum and – where applicable – the IP Rights outside the Scope. Activities falling outside the Scope include, but are not limited to, any form of commercial exploitation of Responsum, mentioning Responsum in marketing materials and/or any other use of Responsum on behalf of, or, for third parties. Likewise, Customer shall not provider its Responsum User Account information (including but not limited to authorized user name(s), password(s) or other relevant information for access) to another, external or any other not-authorized user for any reason including, without limitation, in order for such other user to access any features of Responsum.
2.3 The Customer shall use reasonable endeavours, including reasonable security measures relating to User Account access details, to ensure that no unauthorised person may gain access to Responsum using a User Account.
2.4 Nothing in this License Agreement nor any commercial relationship between the Parties is intended or shall be deemed to constitute a partnership, agency, franchise or a joint venture relationship between the Parties.
2.5 The use of specific modules of Responsum shall be operated on the basis of a subscription fee system. This subscription grants the Customer the access to Responsum’s services for a determined number of employees. The Quote sets out the several pricing details pertaining to the Services. The details of the current subscription and the invoices is set out in the Responsum application. The subscription will automatically renew each month/year without notice until the Customer cancels it. If the Customer cancels the subscription, the Services will continue until the end of the contracted term.
3. Specific obligations and warranties
3.1 On the part of the Provider
3.1.1 The License under this Agreement and Responsum are delivered to the Customer without any express, explicit or implicit warranty except as explicitly provided in this Agreement or as may be required by applicable law.
In particular, the Provider does not provide any warranty relating to Responsum being fit for a particular use or being sufficient or adequate to address the purpose of Responsum for Customer’s Business, or to the economic profitability of the exploitation by Customer of Responsum.
3.1.2 The Provider shall make available Responsum to the Customer in the most recent and workable version and warrants that the tool will, throughout the life of the License, function substantially as set out in Annex 1, subject to any maintenance, updates/upgrades, improvements or modifications that may be required to be implemented by the Provider from time to time and which may reasonably require a certain downtime or limitation of use. The Provider shall use all reasonable endeavours to maintain the availability of Responsum to the Customer, but does not guarantee 100% availability and will not guarantee a higher level of availability than is provided by its hosting partners. The Provider warrants that it will spend all reasonable efforts to solve any technical or other errors that would impact the due functioning of the tool, as soon as reasonably possible. In case of a detected issue or outage, report can be made to email@example.com. If an outage is detected or reported, the Provider will take reasonable efforts to contact the Customer of this outage if the outage would exceed a duration of 1 hour. The Provider shall be free to determine the method to correct or bypass any potential errors. Any downtime or limitation of use resulting from the need for Provider to correct any technical errors, shall never entitle the Customer to a claim for damage or loss.
3.1.3 The Provider is released from any warranty in relation to Responsum to the extent that an error is attributable to circumstances for which it is not responsible, such as in particular, but not limited to (i) unauthorised interventions into the tool by the Customer, (ii) operating errors by the Customer or its Representatives, or (iii) influences of systems or programs not supplied by the Provider.
3.1.4 The Provider warrants that, to the best of its knowledge, it owns all rights, titles and interests to Responsum (including the IP Rights). Should it appear that certain IP Rights that have been or are being used for the development and/or operation of Responsum belong to third parties, the Provider shall undertake its best efforts to acquire sufficient rights in such (underlying) intellectual property rights in connection with Responsum for the purpose of providing a valid License under this Agreement. In the event that, despite all efforts made, the Provider is not able to obtain sufficient rights on any relevant third party intellectual property in the framework of Responsum, the Provider shall use all reasonable endeavours to amend or otherwise modify Responsum so as to allow the use of the tool without infringement on third party intellectual property rights. If such attempt is not successful, each Party shall be entitled to terminate the License with immediate effect without any termination compensation or indemnification being due to the other Party, as set out in Article 8.3 (iii).
If legal action is taken by third parties against the Customer on the grounds of breach or alleged breach by the Provider on third party intellectual property rights, then the Customer shall inform the Provider without undue delay and shall enable the Provider to intervene in the legal proceedings, as the case may be, as an interested party and/or to take the lead in conducting defense. In this respect, the Provider and the Customer shall communicate in good faith any information which may be useful or necessary for conducting the defense. Should any liability of the Provider be established in the framework of these legal proceedings, the Provider shall compensate the Customer for the damages suffered, including reasonable legal fees, subject always, however, to the limitations set out in Article 3.5
3.1.5 The entire liability of the Provider under or in connection with this Agreement whether in contract, tort or otherwise, shall at all times be limited in aggregate to an amount equal to the insurance cover provided, or if no insurance cover is provided, to an amount equal to 50% of all license fees paid by the Customer to the Provider prior to the occurrence of the damage.
In no event shall the Provider be liable to the Customer, except as explicitly stated otherwise in this Agreement, for (i) loss or damage incurred by the other as a result of third party claims, or (ii) incidental, indirect or consequential damage, loss of profit, goodwill, data, business opportunity or anticipated savings.
Nothing in this Agreement shall operate to exclude or restrict Provider’s liability in the event of willful misconduct or fraud.
3.2 On the part of the Customer
- The Customer shall not use Responsum as a Data Repository/Directory. All files uploaded to the system are to be considered as a secondary source of data. The licensee remains responsible for management of the data in its systems and thus for the provision of an authentic source of its data.
- The Customer shall not use Responsum in any way that is unlawful, illegal, fraudulent or harmful or in connection with any unlawful, illegal, fraudulent or harmful purpose or activity.
- The Customer shall not use Responsum and shall not create Customer applications, for the purpose of “spamming.” Provider reserves the right, in its sole discretion, to determine what actions constitute “spamming”.
- The Provider does not provide for an interface, if Customer wishes to make use of links within Responsum, Customer remains responsible for updating those links.
- The Customer shall not use the licensed materials in any manner that does or could potentially undermine or harm the security or operating of Responsum or any other services of the Provider, or that could in any way be detrimental to the image, reputation or any other material or non-material interests of the Provider. In addition, Customer shall not interfere with, modify or disable any features, functionality or security controls of Responsum or any other services of the Provider The Customer should also not try to defeat, avoid, bypass, remove, deactivate or otherwise circumvent any protection mechanisms for Responsum or any other services or materials of Provider, or reverse engineer, decompile, disassemble or derive source code, underlying ideas, algorithms, structure or organizational form from Provider’s services, products or any parts or components thereof.
- Customer will immediately report to the Provider (i) any technical errors experienced by the Customer in using Responsum via firstname.lastname@example.org and (ii) any security flaws the Customer discovers in Responsum or in any other Provider’s services or materials. The Provider reserves the right, in its sole discretion, to determine what constitutes a security flaw. The Customer will also immediately report any actual or suspected unauthorized access to Responsum using Customer’s User Account credentials. Failure to report such flaws or unauthorized access, particularly prior to public disclosure, will be considered a material breach of this Agreement. The Customer will provide appropriate and reasonable support to the Provider in analyzing the causes and conditions of any program or functional error and/or of any security
- The Customer will comply with any other limitations reasonably imposed by the Provider on the use of Responsum and will at all times uphold a general due care standard. The Customer will respect the letter and the spirit of the programmatic limitations of Responsum and the restrictions of this Agreement. For example, the Customer shall refrain from working around or circumventing any explicit or implicit Responsum limitations.
- Provider holds the right to temporarily block the Customer’s access to Responsum in case of abuse.
3.2.2 Specific terms regarding phishing simulations
- The Customer gives the Provider the approval to carry out phishing simulations against all email addresses and mobile phone numbers as inserted by the Customer (User Accounts) in Responsum, for the duration of the License in accordance with this Agreement. The Provider agrees that all the inserted domains are fully under the Customer’s control and ownership. The Customer confirms that he has got sufficient authority to approve phishing simulations and that he is authorized to and will safeguard the Provider against any accusations that would condemn this approval. The Customer acknowledges that every specific simulation will be presented first for validation and that the Customer will test and approve every phishing scenario before it is being executed. To the greatest extent permitted by applicable law, the Provider can never be held responsible for direct or indirect damage of the Customer or third parties as a consequence of this phishing simulation. The Customer will safeguard the Provider against all types of Customer or third party claims, whether direct or indirect claims, as a consequence of an executed phishing simulation via Responsum.
- The Customer warrants to respect all third-party rights and is solely responsible for the opted phishing The Customer acknowledges that only logo’s and images of fictitious companies can be used in the phishing scenario or template and is solely responsible for including logo’s, images or any other references (directly or indirectly) to existing companies or companies reasonably known to be established in the near future.
3.2.3 Audit, insurance and liability
3.2.4 The Customer shall take out sufficient insurances to cover any risks associated with the use of Responsum.
3.2.5 The Provider cannot be held liable in any way with regard to any and all damages, suits or proceedings, losses, expenses or (legal) costs incurred or suffered by the Customer as a result of the use of Responsum by the Customer (except in relation to alleged breach by Responsum on third party intellectual property rights, as set out in Article 3.1.4). The Customer shall compensate and hold harmless the Provider in respect of any and all damages, suits or proceedings, losses, expenses or (legal) costs incurred or suffered by the Provider as a result of use of Responsum and (if applicable) the IP Rights by Customer or any security flaws in the Customer’s environment.
4. Modifications & alterations
4.1 The Customer acknowledges and agrees that the Provider may modify or alter these Terms and Conditions, and/or the Responsum application from time to time – e.g. based on insights gained during the course of this Agreement, or, based on insights that the Provider has gained through other activities (each a “Modification”).
4.2 Modifications consisting of “updates” to Responsum can comprise qualitative textual modifications to Responsum, e.g. wording of the questions or certain items within Responsum, qualitative functional updates to Responsum applications which may impact usability, as well as quantitative adaptions. Updates to Responsum are at the exclusive authority and privilege of the Provider.
4.3 The Provider will not make use of the Customer’s data in the system for other purposes than providing the services mentioned under this Agreement.
4.4 The Customer will be notified of a Modification through notifications or posts on the Provider website or through a form of direct communication from Provider to Customer.
4.5 If the Customer does not accept a Modification to the Terms and Conditions, it shall notify the Provider within 15 calendar days. The Parties shall try to reach an agreement in good faith. In case of failure to reach an agreement on the Modification to the Terms and Conditions proposed, the Customer shall be entitled to terminate the Agreement by respecting the one month notice period. Any license fees already paid for the running license period shall, however, not be refunded.
4.6 The Customer acknowledges that a Modification of Responsum may have an adverse effect on its functionality. The Provider shall have no liability of any kind to the Customer or any user of Responsum with respect to such Modifications or any adverse effects resulting from such Modifications to the extent that they do not materially affect the basic functionality as defined under this Agreement. Customer’s continued access to or use of Responsum shall constitute a binding acceptance of the Modification(s).
5.1 The Provider and its third party subcontractors/licensors own and retain all IP Rights in and to the Responsum application and other related services, this includes but is not limited to the frameworks it has been built on, and/or any corrections, bug fixes, enhancements, updates, improvements, or modifications thereto and Licensee hereby irrevocably transfers, conveys and assigns to the Provider and its third party subcontractors/licensors all of its right, title, and interest therein. The Provider and its third party subcontractor/licensor shall have the exclusive right to apply for or register any patents, mask work rights, copyrights, and such other proprietary protections with respect thereto. The Customer acknowledges that the License granted under this Agreement does not provide it with any title or ownership to Responsum or the frameworks it has been built on, but only a right of limited use under the terms and conditions of this Agreement.
6. Subscription Fee
6.1 As consideration for the License granted herein, the Customer agrees to pay to the Provider a subscription fee as determined in the Quote. Any subscription fee paid shall not be refundable. All fee amounts mentioned in the Quote, unless otherwise stated, do not include any value added tax or other taxes, which, if required by law, shall be added to the amount due and which shall be payable by the Customer to the Provider. Where applicable, the Customer shall be responsible for payment of all federal, state or local import, usage, value added, withholding or other taxes or duties associated with the supply or use of Responsum or which may be levied or based on the use of Responsum. If the Provider is required to pay any such taxes or fees related to the License, the Customer agrees to promptly reimburse Provider for any such taxes or duties payable by Provider.
6.2 Additional subscriptions beyond those awarded as part of the license package can be purchased from the Provider upon request. The price subscription is specified in the Quote.
7.1 All payments must be made in EURO in immediately available funds and net of any bank charges.
7.2 Unless otherwise provided in a Quote, all payments must be made no later than 30 calendar days from the Invoice Date. Any late payment by the Customer will be subject to a late payment interest by force of law and without the need for prior notice, calculated as from the day after the due date and at an interest rate of 10% per year. In the event that the Provider is compelled to start collection proceedings, an additional penalty equalling 10% on the principal amount outstanding, shall be payable by the Customer to the Provider.
7.3 If the Customer is delinquent on a payment of fees for fifteen (15) days or more, the Provider may suspend its access to Responsum. Complaints concerning invoices must be made in writing within thirty (30) days from the date of the invoice. Invoices will be sent by electronic delivery unless requested otherwise by the Customer.
8. Free trial, upgrading and downgrading terms
8.1 Subscriptions to the Services may begin with a free trial period during which the Customer can try out the Services of Responsum for 30 days from the date of registration (‘Free Trial Period’). When the Free Trial Period has ended, the Customer will only be able to continue using the Services by upgrading to a paid subscription plan. If the Customer does subscribe to a paid subscription plan, access to the Services will be blocked until an upgrade to a paid subscription plan is made.
8.2 Any upgrade or downgrade in plan level will result in the new rate being charged as from the next billing cycle. There will be no prorating for downgrades in between billing cycles.
8.3 Downgrading your subscription plan may cause the loss of features, loss of prior inputted information in certain parts of Responsum or the number of licenses for access to Responsum (User Accounts). The Provider does not accept any liability for such loss.
9.1 The Provider will provide the Customer with Documentation regarding Responsum. This Documentation is to be considered by the Customer as its primary support tool.
9.2 In addition, the Provider will make available its e-mail based support services for Responsum in order to assist in troubleshooting and answering questions of a specific nature regarding Responsum. These support services will always be provided from within the EEA. For the purpose of soliciting support from the Provider, the Customer shall appoint within its organisation one person of contact (and one replacement person of contact in the event that the primary person of contact is not available). All support queries and answers shall be channelled through the Customer’s person of contact. The Customer, in turn, represented by its appointed person of contact, as the case may be, shall provide all support and/or technical assistance to its proper end-users regarding the use of Responsum (including any issues related to the content of the tool). For the avoidance of doubt, The Provider shall not provide support and/or technical assistance directly to the Customer’s end users.
9.3 E-mail support can be requested by the Customer via email@example.com. The Provider will use its best efforts to provide the Customer with the requested support within five (5) business days. Support shall be delivered during normal business hours. Any specific support and service level beyond the standards set out above, may be the subject of specific terms and a support plan between the Parties, which shall then be added to this Agreement as a Quote.
9.4 In case of any issues with the system and only with the consent of the Customer, the Provider can make use of the Customer’s data in the system in order to reconstruct the problem and to be able to provide a suitable solution.
10.1 Responsum may include the Customer in its client list. In addition, Responsum may publish a brief description of the Assignment and use the name, brand and logo of the Customer for publicity, sales purposes and PR activities. In no event, however, may the brief description result in a breach of the confidentiality obligation as defined in section 13.
11. Term and termination
11.1 The Agreement enters into force as of the Effective Date and will be in full force and effect for an initial period as stated in the Quote, depending on the preference of the Customer when ordering the Services.
11.2 Unless the Customer provides notice of termination at least fifteen (15) calendar days prior to the end of the Term, the Agreement shall be automatically extended for the same period as the initial period, which shall entitle the Provider to invoice the Customer for the renewed term.
11.3 The Customer may terminate the Agreement by written notice:
- At any time and for any reason, as long as such termination takes place at least 15 calendar days before expiration of the Term.
- In the event he cannot agree with one of the following circumstances: (i) a change in the offer of the Services, which entails a significant disadvantage for the Customer, (ii) a change of these terms and conditions by Provider in accordance with Article 4.1. Under no circumstances, this entitles the Customer to claim any sort of damages or compensation from Provider;
- In the event Article 9 of the data processing agreement between the Customer and Provider enters into force and the conditions, as determined therein, are met.
11.4 A Party may terminate this Agreement at any time with immediate effect, upon written notice to the other Party in the event that:
- the other Party commits a material breach of any of its obligations under this Agreement which breach is not capable of remedy, or which, if capable of remedy, is not remedied within thirty days after receiving written notice thereof;
- a competent court ruled that the IP Rights are infringing upon the intellectual property rights of a third party and no work-around or license with the third party could be obtained by the Provider;
- the other Party files a petition for bankruptcy or is otherwise insolvent and unable to pay its debts, enters into voluntary or judicial winding up and liquidation (except in the context of group restructuring or reorganisation where the activity is continued), applies for a judicial reorganisation or enters into a global arrangement with its creditors;
- a Force Majeure invoked by a Party has continued for a period exceeding 1 month and the Parties have not been able to reach an equitable solution; or
- the other Party ceases or threatens to cease to carry on its business.
Nothing in this Article shall prevent the Provider from seeking compensation for damage from the Customer in the event of breach by the Customer.
11.5 The Provider may terminate this Agreement at any time with immediate effect, without any termination compensation being due and without prejudice to the right of compensation, upon written notice to the Customer in the event that:
- A change of control occurs with respect to the Customer, meaning the direct or indirect change of ownership, i.e. the acquisition by a company, partnership or any other (legal) entity or a person of the Customer, whether by merger, consolidation, sale or otherwise, in one transaction or any related series of transactions, of control of the Customer, whereby control is defined as the (beneficial) ownership of any shares or other equity interest that represents fifty percent or more of the voting power of all such outstanding shares or equity interest of such company, partnership or any other (legal) entity.
- Provider detects or has substantial reasons to assume that:
- The Customer uses the Services for unauthorized, illegal and/or inappropriate purposes;
- The agreement with the Customer is based on incorrect or false information of the Customer
- If the Customer commits an act of dishonesty, disloyalty or fraud with respect to the Provider, its business or the Services.
11.6 Upon termination of this Agreement the Provider will return Customer’s data in a machine-readable format. Customer considers this format being self-explanatory for people with a certain knowledge of the system. If additional explanation or support is required, this will be provided by the Provider at the rate determined in the Quote.
11.7 Upon termination of this Agreement, and without prejudice to any rights and remedies of Provider under applicable law, and except as otherwise provided herein, the Customer is no longer entitled to use RESPONSUM and agrees to return to the Provider any Confidential Information in the Customer’s possession and shall provide – upon the first request of Provider – evidence of the disposal.
11.8 All terms of this Agreement which, by their nature, are intended to survive termination of this Agreement will survive termination, including confidentiality obligations, ownership terms, limitations of liability and privacy and data protection terms, notwithstanding the expiration or termination of this Agreement for whatsoever reason.
12. Data Protection & Privacy
12.1 In the execution of this Agreement, the Customer and the Provider will adhere to Applicable Data Protection Law.
12.2 Except for certain specific modules, Responsum has not been designed for the processing of personal data. Consequently, Responsum will not actively look for any personal data that might have been uploaded and the Customer will refrain from doing so. Nonetheless, Responsum has been set up in a manner compliant to the Applicable Data Protection Law.
12.3 In case Responsum has been installed on premise at the Customer, the Customer will be responsible for adhering to the Applicable Data Protection Law. Provider thus presumes that the measures taken to that end are considered by the Customer as being sufficient.
12.4 The Customer acknowledges to have received, read and understood the Privacy Statement of the Provider for the processing of the Customer’s Personal Data (including but not limited to processing for contract management or billing purposes).
12.5 Parties agree that the Customer shall comply with all obligations under Applicable Data Protection Law for the processing of personal data in its capacity of controller and, as the case may be, processor. Parties agree that the Provider acts as a data processor for the Customer in the context of the Services provided under this Agreement (i.e. the processing of personal data on behalf of the Customer in the context of Responsum); to this extent the Customer has entered into a Data Processing Agreement with the Provider as set forth in Annex 1.
13.1 Each Party agrees to maintain secret and confidential all Confidential Information that it may acquire from the other Party in the course of this Agreement.
13.2 The Parties may disclose such Confidential Information only to those of their Representatives who need to know such information in order to enable the respective Parties to perform their obligations under this Agreement.
13.3 Each Party shall ensure that all its Representatives who have access to any information of the other Party shall be made aware of and be subject to the same obligation of confidentiality.
13.4 If there is any unauthorized access to, disclosure or loss of, or inability to account for, any Confidential Information of the disclosing Party, the receiving Party will promptly (i) notify the disclosing Party; (ii) take such actions as may be necessary or reasonably requested by the disclosing Party to minimize the disclosure or loss; and (iii) cooperate in all reasonable respects with the disclosing Party to minimize the impact of the disclosure or loss and any damage resulting therefrom.
13.5 The Provider can disclose data stored in the system to the data protection authority or another judicial authority in context of an investigation. Data will only be disclosed upon the Customer’s consent, unless this is prevented by the secrecy of the investigation.
13.6 The provisions of this article 13 shall survive after the termination of this Agreement and continue for a period of 7 years after its termination.
14. Data storage and hosting
14.1 Responsum has adopted state of the art security controls and practices for the systems used for processing (personal) data, designed to protect the confidentiality, integrity and availability of the Customer’s content. However, zero day exploits are hard to detect. Therefore the Customer has the obligation to report to the Provider any potentially suspicious behavior of the system. Such reports can be made at any time via firstname.lastname@example.org.
14.2 Responsum servers are hosted in a data center operated by a vendor located within the EEA. Responsum maintains complete administrative control over the servers and no third parties have logical access to the Customer’s data. Only in the event of maintenance, updates and upgrades to the application or its dependencies, Customer data can be visible by third parties assisting in this process. With these third parties, agreements are in place to safeguard the confidentiality of any information that might be visible to this third party.
15. Force Majeure
15.1 Force Majeure shall mean any unforeseeable event which is beyond the reasonable control of the Parties or any foreseeable occurrence of which the consequences may not be reasonably avoided and which arises after the date of signature of this Agreement and which prevents performance of this Agreement, in whole or in part, by either Party.
15.2 If an event of Force Majeure occurs, performance of the Parties’ obligations under this Agreement which are affected by the Force Majeure shall be suspended for the duration of the event of Force Majeure and the period of performance shall be automatically extended, without penalty, for a period equal to the suspension.
15.3 The Party claiming Force Majeure shall promptly inform the other Party to this effect in writing, explaining its reasons for doing so.
15.4 If an event of Force Majeure occurs, the Parties shall immediately consult with one another with a view to finding an equitable solution and shall use all reasonable efforts to minimize the consequence of the occurrence. If the conditions of Force Majeure prevail for more than 1 month and the Parties have been unable to reach an equitable solution, the other Party shall have the right, pursuant to Article 8.3 of this Agreement, to terminate the Agreement.
16. Full Agreement
This Agreement contains the entire agreement between the Parties in relation to its subject matter and replace and supersede all prior negotiations and agreements. This Agreement may only be amended by means of a written agreement signed by duly authorized representatives of the Parties.
The Customer may not assign its rights or obligations under this Agreement in whole or in part to any third party without the prior approval of the Provider.
18. No waiver
Failure to claim a right or impose a penalty by either Party shall not be construed as a waiver of that right.
Notifications intended for the purposes of exercising rights and obligations arising from this Agreement shall be (i) in writing; (ii) delivered to the Parties at the address of their respective registered offices (unless changed by either Party upon written notice to the other Party), and (ii) effective upon receipt.
20. Conflict of terms
Except as otherwise explicitly provided in this Agreement or an Annex to this Agreement, in case of conflict or inconsistency between a provision in this Agreement and a provision in an Annex to this Agreement, the provision in the Annex shall prevail and control.
If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, that provision shall be modified by the Parties and interpreted so as to best accomplish the original provision to the fullest extent permitted by law, the other provisions will remain in full force.
22. Signature in counterparts
Counterpart signature pages to this Agreement transmitted by electronic mail in portable document format (“PDF”), or by any other electronic means intended to preserve the original graphic and pictorial appearance of a document, will have the same effect as physical delivery of the paper document bearing an original signature.
23. Governing Law and Jurisdiction
23.1 This Agreement will be governed by and construed in accordance with the laws of Belgium, excluding its conflict-of-law rules.
23.2 All disputes arising out of or in connection with this Agreement which cannot be solved amicably, shall be exclusively brought before the Dutch speaking courts of Brussels, Belgium.
Data Processing Agreement
Pursuant to the Regulation 2016/679 of the European Parliament and of the Council of 27 April 2016 on
the protection of natural persons with regard to the processing of personal data and on the free
movement of such data (‘GDPR’) and the Commission Decision 2010/87/EU on Standard contractual
clauses for the transfer of personal data.
The Customer is considered as the Controller, and hereinafter referred to as “Controller”, whereas the Provider is considered as the Processor, hereinafter referred to as “Processor”. The Controller and the Processor will be referred together as the “Parties” and individually as a “Party” hereafter.
Article 1: Definitions
- For the purpose of this Data Processing Agreement, the following definitions apply, next to those already defined in the Agreement
- “Controller” shall mean the natural or legal person, public authority, agency or any other body which, alone or jointly with others, that determines the purposes and means of the processing of Personal Data;
- “Data Subject” shall mean an identified or identifiable natural person;
- “Personal Data” shall mean all information relating to a Data Subject;
- “Personal Data Breach” shall mean a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, Personal Data transmitted, stored or otherwise processed;
- “Processor” shall mean a natural or legal person, public authority, agency or any other body which is authorised to process Personal Data on behalf of the controller;
- “Security Measures” shall mean the appropriate technical and organisational measures to ensure a level of security appropriate to the risk, including measures aimed at protecting Personal Data against inter alia accidental or unlawful destruction or loss, as well as against non-authorised access, alteration or transmission.
- “Services” shall mean the services performed by the Processor in accordance with the Agreement;
- “Sub-processor” shall mean any processor engaged as a subcontractor by the Processor and who agrees to process Personal Data for and on behalf of the Controller in accordance with this Data Processing Agreement;
- “Supervisory Authority” shall mean an independent public authority which is established by a Member State pursuant to Article 51 of the GDPR;
- “Third Party” shall mean any party who is not: a Data Subject, Controller, Processor or Sub-processor under this Data Processing Agreement or a person who is authorised to process Personal Data under the direct authority of the Controller or Processor;
- Any other terms used but not defined hereunder will have the same meaning as in the Agreement or Applicable Data Protection Law (as appropriate).
Article 2: Subject-matter of the Data Processing Agreement
- In order to receive the Services the Controller instructs the Processor with the processing of Personal Data. The Processor commits to process the Personal Data only on documented instructions from the Controller.
- The Processor processes Personal Data in the context of the Services in accordance with the provisions of the License Agreement.
- Both Parties explicitly commit to comply with the provisions of Applicable Data Protection Law and shall not do or omit anything that may cause the other Party to infringe Applicable Data Protection Law.
- Processing Activities. The processing carried out by the Processor in the name and on behalf of the Controller relates to the Services performed by the Processor. The Processing Activities by Licensor as a Processor for Licensee, as follows from the License Agreement and the Annexes inter alia consist of:
- Registration, storage and management of authorized user names/profiles or groups for use of the Services;
- Processing answers and reporting scores of authorized users;
- Sending emails/notifications (e.g. to users).
- Categories of Personal Data and Data Subjects.
- Users of the Licensee (Users of the RESPONSUM application itself)
- First Name
- Last Name
- Email Address
- Active Department
- Login credentials
- User Logging (Last Sign In, role changes, Creation date…) (For accountability purposes and to show to Admins in Configuration – User Management)
- User Role within RESPONSUM (Admin, Management Lead, Process Champion, CxO and/or Experience Center)
- Specific permissions within RESPONSUM (Ex. Access as management lead to certain Sub-modules of RESPONSUM)
- Responsibilities of a user within the Organization related to Privacy and Security Compliance (ex. Responsible to review Processing activities, Legal Advices…)
- Details of the Data Subjects of the Controller (ex. Controllers’ Clients, Members, Employees…) (Specific for the “Data Subject Rights” Module)
- Potentially a Full Name or (preferably) a pseudonymised identifier of the Controllers’ Data Subject the request originates from (Ex. Employee 1367 or Employee John Doe…)
- Controller can upload files of all possible filetypes. These can potentially contain personal identifiers of the Controllers’ Data Subjects. (Full Name, Internal ID, Email address and/or Phone number)
- Related Licensee contractors (not personal data)
- Contact person details (ex. contact person within company that supplies software package…)
- Name and location of the third-party contractor
- Purposes: Personal Data shall only be processed by the Provider in its capacity of Processor, in light of the purposes which are determined in this Data Processing Agreement and Agreement.
- Both Parties shall undertake to adopt appropriate measures to ensure that the Personal Data are not used improperly or acquired by an unauthorised Third Party.
Article 3: Duration of the processing
- This agreement shall apply as long as the Processor processes Personal Data on behalf of the Controller as part of the License Agreement. If the Agreement comes to an end, this Data Processing Agreement will also come to an end.
- In case of a serious violation of this Data Processing Agreement or the applicable provisions of the GDPR, the Controller may order the Processor to stop the processing of Personal Data with immediate effect. In such a case, Parties will discuss in good faith to either suspend or terminate the Data Processing Agreement.
- In the event of termination of the Data Processing Agreement, for whatever cause, or if the Personal Data are no longer relevant for the provision of the Services, the Processor will, at the decision of the Controller, within a reasonable delay, delete all Personal Data or return it to the Controller and delete existing copies, unless Union or Member State law requires storage of the Personal Data.
Article 4: CONTROLLER’S instructions
- The Processor processes the Personal Data only on the documented instructions of the Controller to perform the Services in accordance with the Agreement and the Data Processing Agreement. The Processor shall not further process the Personal Data subject to the Agreement in a manner which is incompatible with these instructions and the provisions laid down in the Agreement.
- The Processor shall be consulted before any changes are made to the instructions. Changes in instructions affecting the Agreement and this Data Processing Agreement must be mutually agreed upon by both Parties.
- The Processor processes the Personal Data in accordance with Article 4.1 of this Agreement, including with regard to transfers of Personal Data to a third country or an international organisation, unless required to do so by Union or Member State law to which Processor is subject; in such a case, the Processor shall inform the Controller of that legal requirement before processing, unless that law prohibits such notification on important grounds of public interest.
Article 5: Assistance to the CONTROLLER
5.1. The Processor shall assist the Controller in ensuring compliance with its obligations pursuant to article 32 – 36 GDPR, taking into account the nature of processing and the information available to the Processor.
Article 6: Information obligations
6.1. The Processor shall provide the Controller, upon its request, with the following information:
- All relevant details regarding its own corporate structure, as well as accurate and up-to-date identifying information on all of Processor’s entities involved in the processing of Personal Data, including the location of their main establishment;
- A list of the current Sub-processors including the location of its main establishment as well as the aspects of the processing for which the Processor relies on the Services of a Sub-processor.
- Geographical details of processing locations, including back-up and redundancy facilities;
- The physical, organisational, technical Security Measures that the Processor has implemented, as set out in Article 11 of this Data Processing Agreement.
Article 7: PROCESSOR’S obligations
- To the extent required by article 28 GDPR, the Processor shall handle all reasonable requests of the Controller concerning the processing of Personal Data related to this Data Processing Agreement, immediately or within a reasonable time (pursuant to the legal obligations defined in the GDPR) and in a proper manner.
- The Processor guarantees that there are no obligations that arise from any applicable legislation that make it impossible to comply with the obligations of this Data Processing Agreement.
- The Processor undertakes to not process Personal Data on behalf of the Controller for another purpose than the performance of the Services and the compliance with the responsibilities of this Data Processing Agreement in accordance with the documented instructions of the Controller; if the Processor, for any reason, cannot comply with this requirement, he shall notify the Controller without delay thereabout.
- The Processor shall notify the Controller without delay if it is of the opinion that an instruction from the Controller violates Applicable Data Protection Law.
- The Processor shall ensure that the Personal Data is only disclosed to the persons who needs it to perform the Services in accordance with the principle of proportionality and the ‘need-to-know’ principle (meaning data is only provided to those persons that need to have the Personal Data to execute the Services as determined in the License Agreement and this Data Processing Agreement).
- The Processor shall undertake to not disclose Personal Data to other persons than the staff of the Controller who need the Personal Data to comply with the obligations of this Data Processing Agreement, and ensures that persons authorised to process the Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
- The Processor has the obligation to create and maintain a record of processing activities related to this Data Processing Agreement pursuant to article 30.2 GDPR.
Article 8: CONTROLLER’S obligations
- The Controller shall render all assistance needed and shall cooperate in good faith with the Processor in order to ensure that all processing of Personal Data complies with the requirements of Applicable Data Protection Law and particularly with the principles relating to processing of Personal Data.
- The Controller shall agree with the Processor on appropriate communication channels in order to ensure that instructions, directions and other communications regarding Personal Data that are processed by the Processor on behalf of the Controller is well received between the Parties. The Controller shall notify the Processor of the identity of the single point of contact at the Controller that the Processor is required to contact in application of this Article 8.2 of this Data Processing Agreement. Non-written instructions (e.g. oral instructions by phone or in person) always have to be confirmed in writing.
- The Controller warrants that it shall not issue any instructions, directions or requests to the Processor, which do not comply with the provisions of applicable law, including but not limited to Applicable Data Protection Law.
- The Controller shall render the assistance needed for the Processor and/or its Sub-processor(s) to comply with a request, order, inquiry or subpoena directed at the Processor or its Sub-processor(s) by a competent national governmental or judicial authority.
- The Controller warrants that it shall not issue instructions, directions or requests to the Processor which would require the Processor and/or its Sub-processor(s) to violate any obligations imposed by applicable mandatory national law (including but not limited to Applicable Data Protection Law) to which the Processor and/or its Sub-processor(s) are subject.
- The Controller warrants that it shall cooperate in good faith with the Processor in order to mitigate the adverse effects of a security incident impacting Personal Data processed by the Processor and/or its Sub-processor(s) on behalf of the Controller.
Article 9: The use of Sub-processors
- The Processor has the right to engage another processor (Sub-processor) provided that this Sub-processor can ensure the implementation of similar technical and organisational measures as provided by the Processor under this Data Processing Agreement and within the limits of the GDPR.
- The same data protection obligations as set out in this Data Processing Agreement between the Controller and the Processor shall be imposed on that Sub-processor by way of a contract or other legal act under Union or Member State law, in particular providing sufficient guarantees to implement appropriate technical and organisational measures in such a manner that the processing will meet the requirements of the GDPR. Where that Sub-processor fails to fulfil its data protection obligations, the Processor shall remain fully liable to the Controller for the performance of the Sub- processor’s obligations.
- The Processor undertakes to inform the Controller of intended changes concerning the addition or replacement of other processors, thereby giving the Controller the opportunity to object to such changes.
If the Controller wishes to exercise its right to object, the Controller shall notify the Processor in writing at latest in a reasoned and documented manner within 15 calendar days upon receipt of Processor’s notice. If the Controller does not object during this period, the new Sub-processor shall be deemed accepted. The Processor shall make reasonable efforts to address or resolve any reasonable Controller’s objection.
- If the Processor is not able to address or resolve the Controller’s objection within a reasonable period (which shall not exceed thirty (30) calendar days following the objection of the Controller), the Controller may terminate the Agreement by providing written notice thereof within a reasonable time or choose to consent with the addition of the Sub-processor.
- As part of this Data Processing Agreement the Processor makes use of, amongst others, the following Sub-processors in order to ensure the performance of the Services to the Data Subjects:
- NSX: Back-end development and Server maintenance
- Mediaan: Front-end development
- Delta Blue: Delivering a vendor and cloud agnostic platform that assists in server management and fully automates the RESPONSUM application life cycle management.
- Upcloud: Hosting services (via Delta Blue cloud)
- Brightest: Testing automation assistance
The Processor has entered into a data processing agreement with these sub processors, containing at least the same obligations as set forth in this Data Processing Agreement.
Article 10: Rights of the Data Subjects
- Taking into account the nature of the processing, the Processor assists the Controller by implementing appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of the Controller’s obligation to respond to requests for exercising the Data Subject’s rights laid down in Chapter III GDPR.
- The Processor shall promptly inform the Controller of any request made by a Data Subject with regard to the Personal Data the Processor and/or its Sub-processor(s) processes on behalf of the Controller, without giving any consequence to such request unless explicitly authorised in writing by the Controller to do so.
- To the extent required by Applicable Data Protection Law, the Processor shall upon request of the Controller render all assistance required and provide all information necessary for the Controller to defend its interests in any proceedings – legal, arbitral or others – brought against the Controller or its staff for any violation of fundamental rights to privacy and protection of Personal Data of Data Subjects in the context of the License Agreement.
Article 11: Security Measures
- Throughout the term of this Agreement, taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, the Processor implements all measures required pursuant to article 32 GDPR to ensure a level of security appropriate to the risk
- In assessing the appropriate level of security, account was taken in particular of the risks that are presented by processing, in particular from accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to Personal Data transmitted, stored or otherwise processed.
- The Processor has implemented, amongst others, but not limiting to, the following general (physical) technical and organisational security measures:
- RESPONSUM employees and our third-party processors have been made aware of how to handle personal data in the event of providing support, troubleshooting potential issues, upgrading the application and any other activities that might require or allows them to have access to the personal data and company information that is being processed by RESPONSUM.
- All builds that are deployed to the production environment have been front-end tested by internal RESPONSUM testers.
- All environments (Development, Acceptance, Demo and production) are completely separated from one another (different server infrastructure, databases…). No data is at any point in time copied from the production environment to any other environment. For testing purposes, only generated data is used.
- Each part of the RESPONSUM application that is open to the public (available via the internet) is protected by a separate VPS that acts as Firewall, Load balancer and is in charge of providing a secure SSL connection to the RESPONSUM Application. (Edge Gateway)
- Direct server (VPS) access is done over SSH and is protected by using personal certificates. This level of “root” access is also strictly limited to users of our staff that requires this access.
- Continuity on the production environment of RESPONSUM is guaranteed by a constant warm back-up solution that can take over from independent (failing) servers (Clustering). This solution is kept in sync constantly with minimal downtime and data loss. This warm back-up is hosted at Upcloud Germany. Additionally, full application snapshots are created and stored for 7 days.
- The following resources have a failover warm back-up component:
- Application server (Additional full Application snapshot two times daily)
- Database (Additional full back-ups two times daily with a retention of 7 days)
- Authentication server (Additional full Application snapshot two times daily)
- RESPONSUM is a multi-tenant environment (One application, one login page, multiple customers) with “Tenants” that are logically separated from one another (based on the user that signs-in to the application)
- User Accounts are managed in a by RESPONSUM maintained open-source identity and access management solution. For all user accounts, a strict default password policy is enforced:
- a) Password length: between 10 and 20 characters
- b) Capitals: At least 1
- c) Numbers: At least 1
- d) Special Character: At least 1
- New user account temporary details are provided via email, but the user is forced to set a personal password upon first login to RESPONSUM.
- Two-factor authentication by use of any standard authenticator apps can be enabled for your own user account and can be enforced (as admin) for other user accounts.
- Back-end administrator portals for management are available on uncommon URL’s and have brute force prevention enabled. 5 failed login attempts in 2 minutes will block the admin account for 2 minutes.
Article 12: Audit
- The Processor makes available to the Controller all information necessary to demonstrate compliance with the obligations laid down in this Data Processing Agreement, and allows for and contributes to audits, including inspections, conducted by the Controller or another auditor mandated by the Controller.
- This right to audit shall not be used more than one time per calendar year, unless the Controller and/or the Supervisory Authority has reasonable grounds to assume that the Processor acts in conflict with this Data Processing Agreement and/or the provisions of Applicable Data Protection Law.
- In any the case the right to audit shall only be performed during normal business hours of the Processor and shall not unreasonably intervene with the Processor’s normal daily functioning and business operations.
- If there is agreement between the Processor and the Controller on a material shortcoming in the compliance with Applicable Data Protection Law and/or the Data Processing Agreement, as revealed in the audit, the Processor shall recover this failure as soon as possible. The Parties can agree to have a plan in place, including a timescale to implement this plan, to respond to the shortcomings revealed in the audit.
- The Controller will bear the costs of any performed audit in the meaning of this article. Although, when the audit has revealed that the Processor is manifestly not compliant to the Regulation and/or the provisions of this Agreement, the Processor shall bear the costs of such audit.
- Assistance by Processor in the context of this audit will be charged at the proposed daily rate specified in the Quote for additional support. It is also possible for the Controller to perform a joint audit (together with other clients) in order to reduce costs.
Article 13: Transfer outside the EEA
13.1. The processor does by default not transfer or store any information within the RESPONSUM application outside of the EEA. All resources running RESPONSUM are located in Belgium or The Netherlands.
13.2. If necessary to comply with the obligations of this or a separate Agreement between the Parties, Parties agree that Personal Data can only be transferred to and/or kept with a recipient outside the European Economic Area (EEA) in a country with an adequacy decision, or when there is no such decision issued by the European Commission when the transfer is governed in accordance with Articles 46, 47, 48 of the GDPR, or Article 49 of the GDPR if any of the derogations apply.
Article 14: Transfer to Third Parties
14.1. All information received by the Processor from the Controller is subject to an obligation of confidentiality when it comes to transfers of this (Personal) Data to Third Parties.
14.2. This obligation of confidentiality does not apply in so far as the Controller has given his prior Explicit Consent to provide information to listed Third Parties or if the transfer of this data to Third Parties is necessary to comply with the Agreement between the Parties.
14.3. The obligation of confidentiality shall also not apply if the Processor is required by law to provide the information to a Third Party. If the Processor is in doubt as to whether it is permitted to provide information to Third Parties, it shall consult the Controller prior to the Transfer
14.4. After termination of this Agreement, this obligation of confidentiality shall continue to apply as long as the (Personal) Data of the Controller is still processed in any way by the Processor.
Article 15: Data Breach Notification
15.1 The Processor shall fully and immediately after detecting a (potential) Data Breach inform the Controller about:
- The time the data breach started,
- The nature and extent of the data breach,
- The service and/or part of the service at which the data breach occurred,
- The nature and extent of the data files involved,
- The impact of the data breach and the associated risk analysis of the expanding effect thereof,
- The expected recovery time of the RESPONSUM service,
- Which measures have been taken (or are proposed to be taken) to mitigate the data breach.
- Which measures have been taken (or will be taken) to prevent such data breaches in the future.
15.2 The Processor shall be prohibited, whether or not in the context of a data breach, from communicating directly with the Controllers’ data subjects and/or report the data breach to the supervisory authorities in name of the Controller, other than on the express written instruction of the Controller, or with his explicit consent.
Article 16: Intellectual Property Rights
- All Intellectual Property Rights as regards to the Personal Data and as regards to the databases which contain these Personal Data are reserved to the CONTROLLER, unless otherwise contractually agreed upon between the Parties.
Article 17: Liability
- Without prejudice to the Principal Agreement, the PROCESSOR is liable for the damage caused by processing only where it has not complied with the obligations of the Regulation specifically directed to processors or where it has acted outside or contrary to lawful instructions of the CONTROLLER.
- Without prejudice to Article 17.1 of this Agreement, the PROCESSOR shall in no case be liable, if it proves that it is not responsible for the event giving rise to the damage.
- If it appears that both the CONTROLLER and the PROCESSOR are responsible for the damage caused by the processing of Personal Data, both Parties shall be liable and pay damages, in accordance with their individual share in the responsibility for the damage caused by the processing.
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