This agreement is between:

  1. We Are Gamechangers, Inc,  a company incorporated in Delaware whose Tax ID number is 36-4910732 (the “GCUSA“); and
  2. The Client, as set out in the Proposal and/or the Engagement Letter (the “Client“),

(each hereinafter referred to as a “party” and together as the “parties“).

Background

  1. GCUSA is a dynamic consultancy that specializes in designing, building and integrating bespoke business systems using the Citrix Podio Platform and in designing and building bespoke web software.
  2. The Client wishes to engage GCUSA to develop the System (as defined below) and assist the Client with the integration of the System within the Client’s business and GCUSA agrees to undertake this project on the terms set out in this Agreement.

It is agreed as follows;

Definitions and interpretation

Words shall have the meanings given to them in this Agreement, including without limitation as set out below:

Acceptance” or “Accepted” means in relation to any System successful, completion of the Acceptance Tests or deemed acceptance in accordance with this Agreement;

Acceptance Tests” means the mutually agreed tests set out in the Proposal to assess whether the System conforms with the Specification;

Authorised Contact” means each authorised representative appointed by each of the Client and GCUSA as their respective contacts, whose details are set out the Proposal, or as otherwise notified to the other party in writing;

Business Day” means a day, other than a Saturday, Sunday or public holiday;

Change” means any change, amendment or alteration to this Agreement;

Change Control Note” means a note which details the impact the proposed Change shall have on any part of this Agreement;

Change Control Procedure” means the procedure for agreeing Changes as set out in this Agreement;

Citrix” means Citrix Systems, Inc whose principal place of business is at 851 West Cypress Creek Road, Fort Lauderdale, FL 33309 United States of America;

Citrix Podio Platform” means the collaborative project management business software provided by Citrix;

Commencement Date” means the date on which the Client signs the Engagement Letter or, in the absence of any signature, is otherwise deemed to have accepted the terms of this Agreement;

Confidential Information” means any and all information that is confidential in nature (whether in oral, written or electronic form) obtained by (or disclosed to) one party relating to the other party (including information relating to its business, finance, technology, know-how, intellectual property, assets, strategy, processes (including manufacturing ones), arrangements or operations (including management, financial, marketing and technical ones), products, suppliers and/or customers and including equivalent information of any Associate of that other party);

Client Materials” means any Client Requirements, software, data, calculations, algorithms, methods, information and other materials created or supplied by the Client;

Client Requirements” means the particular requirements of the Client relating to the System, as set out in the Proposal;

EU Data Protection Laws” means any law applicable relating to the processing, privacy and use of personal data, including: (i) the Data Protection Act 1998 and the Privacy and Electronic Communications (EC Directive) Regulations 2003, SI 2003/2426 (both as amended), and any laws or regulations implementing Directive 95/46/EC (Data Protection Directive) or Directive 2002/581EC; (ii) the General Data Protection Regulation (EU) 2016/679, and/or any corresponding or equivalent national laws or regulations; and/or (iii) any judicial or administrative implementation of any of the above, any guidance, guidelines, codes of practice, codes of conduct or approved certification mechanisms issued by the Information Commissioner’s Office, or other regulatory or supervisory authority responsible for administering Data Protection Laws;

Documentation” means any documentation to be provided by GCUSA for the Client in relation to the operation of the System;

Engagement Letter” means the engagement letter issued by GCUSA to the Client;

Fees” means the fees and other amounts payable under this Agreement and set out in the Proposal;

Force Majeure” means an event or sequence of events beyond a party’s reasonable control (which could not reasonably have been anticipated and avoided by a party) preventing or delaying it from performing its obligations hereunder, including without limitation war, revolution, terrorism, riot or civil commotion, or reasonable precautions against any such; strikes, lockouts or other industrial action, whether of the affected party’s own employees or others; blockage or embargo; acts of or restrictions imposed by government or public authority; explosion, fire, corrosion, flood, natural disaster, or adverse weather conditions. Force Majeure does not include, without limitation, inability to pay, mechanical difficulties, shortage or increase of price of raw materials, over-commitment or market or other circumstances which may make the terms of this Agreement unattractive to a party;

GCUSA Personnel” means the people providing the System or otherwise performing GCUSA’s obligations or exercising its rights under this Agreement;

Good Industry Practice” means the exercise of that degree of care, diligence and skill which would reasonably and ordinarily be expected from a skilled, professional and experienced person engaged in the same type of undertaking under the same or similar circumstances;

Intellectual Property Rights” means any and all copyright, rights in inventions, patents, know-how, trade secrets, trade marks and trade names, service marks, design rights, rights in get-up, database rights and rights in data, semiconductor chip topography rights, the right to sue for passing off, utility models, domain names and all similar rights and, in each case: (a) whether registered or not; (b) including any applications to protect or register such rights; (c) including all renewals and extensions of such rights or applications; (d) whether vested, contingent or future and wherever existing.

Project Plan” means the outline timetable as set out in the Proposal, as may be amended from time to time under the Change Control Procedure;

Proposal” means the proposal document provided by GCUSA to the Client in relation to the project and the provision of the Services;

Services” means the services including system development, consultancy and computer programming which are to be provided by GCUSA to the Client in the performance of this Agreement;

System” means the system to be developed by GCUSA for the Client as described in the Proposal as well as all associated Documentation but, for the avoidance of doubt, excluding any and all Third Party Software;

Specification” means the specification for the relevant System agreed between the parties and set out in the Proposal (or as otherwise agreed);

Test Period” means the period of thirty (30) days from delivery of the System to the Client or such longer period as may be agreed between the parties;

Third Party Software” means any software programs or applications supplied to the Client by third parties and not by GCUSA including for the avoidance of doubt, the Citrix Podio Platform which is supplied to the Client by Citrix;

TAX” means any tax imposed by local or federal governments; and

Year” means each successive period of twelve (12) months beginning on the Commencement Date.

    1. Interpretation

In this Agreement, unless the context otherwise requires:

      1. the singular includes the plural and vice versa;
      2. references to clauses are to clauses of this Agreement;
      3. references to persons include individuals, trusts, partnerships, unincorporated bodies, government entities, companies and/or corporations (in each case whether or not having separate legal personality);
      4. ‘including’ (or similar words) means including without limitation;
      5. references to this Agreement or any specified clause in this Agreement are to this Agreement or the specified clause as in force for the time being and as amended, varied, novated or supplemented from time to time in accordance with this Agreement;
      6. clause headings do not affect their interpretation;
      7. references to legislation (including any subsidiary legislation) include any modification or re-enactment thereof;
      8. references to books, records or other information include paper, electronically or magnetically stored data, film, microfilm, and information in any other form; and
      9. any schedule, orders or other documents agreed by the parties in future which are not referred to in this Agreement shall not form part of this Agreement unless expressly incorporated by agreement in writing between the parties in accordance with the terms of this Agreement.
      10. Priority
            1. In the event of any conflict or inconsistency between different parts of this Agreement, the following descending order of priority applies:
              1. the terms and conditions in the main body of this Agreement;
              2. the Engagement Letter; and
              3. the Proposal.
            2. Subject to the above order of priority between documents, later versions of documents shall prevail over earlier ones if there is any conflict or inconsistency between them.
    1. Commencement and Term
      1. This Agreement commences and takes effect from the Commencement Date identified above.
      2. This Agreement shall continue from the Commencement Date until the System has been Accepted by the Client (the “Term“) at which point it shall end unless terminated earlier in accordance with clause 22 (Termination).
    2. Supply obligations
      1. The Client engages GCUSA to develop, provide and integrate the System for the Client and GCUSA agrees to develop, provide and integrate that System for the Client in accordance with this Agreement.
      2. Each of GCUSA and the Client shall comply with their respective designated responsibilities specified in this Agreement including the Proposal.
      3. GCUSA shall use all reasonable commercial endeavours to:
        1. ensure that  the System materially complies with the Specification and Client Requirements;
        2. submit the System to the Client for Acceptance Tests as set out in clause 6; and
        3. provide the System (including any Documentation) so as to meet or exceed any agreed quality standards.
      4. GCUSA shall procure that all advice and recommendations given by GCUSA Personnel shall be made in good faith and upon the basis of information provided by the Client and otherwise in accordance with Good Industry Practice.
    3. Client obligations
      1. The Client shall pay for the System as set out in the Proposal.
      2. So far as is reasonably necessary for GCUSA to perform its obligations under this Agreement, the Client shall provide or procure for GCUSA and/or GCUSA Personnel:
        1. access to premises and facilities for delivery of the System or Services;
        2. access to the Client’s software, systems and data including, for the avoidance of doubt, the Client’s Citrix Podia Platform subscription;
        3. access to (and cooperation by) the Client’s personnel and those of its third party representatives (if any); and
        4. reasonable precautions to protect the health and safety of GCUSA Personnel whilst on the Client’s premises.
      3. The Client undertakes to ensure that the computer and operating system and any other hardware or software which GCUSA is asked by the Client to use or modify for the purposes of performing GCUSA’s obligations under this Agreement is either the property of the Client or is legally licensed to the Client and that GCUSA is authorised to use the same. For the avoidance of doubt, this shall include the Citrix Podia Platform which is licensed to the Client by Citrix.
      4. The Client acknowledges that the System is to be provided at the Client’s request and the Client shall be responsible for verifying that the System is suitable for its own needs.
      5. The Client grants to GCUSA a non-exclusive, perpetual, revocable, royalty free licence to use the Client’s name and logo in GCUSA’s marketing materials.
    4. Acceptance Tests
      1. The Client shall perform the Acceptance Tests within the Test Period. GCUSA shall be given reasonable notice of and be entitled to attend the Acceptance Tests.
      2. If the System being tested performs in accordance with the agreed Specification or other agreed test standards and meets the agreed testing criteria for the Acceptance Tests, it shall be deemed to have passed the Acceptance Tests. If the System fails to pass the Acceptance Tests, the Client shall cooperate with GCUSA in identifying in what respects the System failed to conform to the Specification or otherwise failed to pass the Acceptance Tests. The System shall not be deemed to have failed the Acceptance Tests by reason of any failure to provide any facility or function not specified in the Specification or other agreed test standards.
      3. If GCUSA is unable to remedy any failure of the System so that it conforms with the Specification within a further test period agreed by the parties (the “Extended Test Period“), then:
        1. the Client shall be entitled forthwith to reject the System without further liability to GCUSA; and
        2. GCUSA shall promptly repay to the Client the Fees that the Client has paid to GCUSA in respect of the rejected System;

provided that in the case of a minor non-conformity with the Specification or other agreed test standards, the Client shall not unreasonably delay in its Acceptance of the System so long as GCUSA uses its reasonable endeavours in accordance with Good Industry Practice to rectify such non-conformity as soon as possible. For the purposes of this clause, ’minor non-conformity’ means a cosmetic defect or a failure of the System to conform with the Specification but which does not have a material effect on any specified functionality.

      1. Confirmation of Acceptance shall be promptly issued by the Client when the relevant System has passed all the Acceptance Tests.
      2. Save where the Client has rejected the System as stated above, the Client’s Acceptance of the System shall occur at the earliest of:
        1. The Client providing written Acceptance of the System to GCUSA;
        2. the System passing the Acceptance Tests in accordance with this clause;
        3. the System being used in a live environment or in commercial use; and
        4. the expiration of the Test Period and of the Extended Test Period (if any) in circumstances where the Client has failed to complete the Acceptance Tests, unless the Client’s failure or inability to complete the Acceptance Tests during such Test Period or Extended Test Period (if any) is attributable to some act or default of GCUSA.
  1. Time for performance

Except as expressly stated, time shall not be of the essence in respect of the parties’ obligations under this Agreement and any timescales provided by GCUSA are indicative only.

      1. Intellectual Property Rights
        1. In consideration of the Fees payable under this Agreement GCUSA assigns to the Client all of GCUSA’s Intellectual Property Rights in the System and Documentation which are created by GCUSA exclusively for the Client pursuant to this Agreement. However, without prejudice to the foregoing, GCUSA shall remain entitled to use the knowledge and skills learned by it in the creation of the System and to use such knowledge and skills in the service of other clients.
        2. Except as expressly agreed in this clause 8, no Intellectual Property Rights of either party are transferred or licensed as a result of this Agreement.
        3. Each party shall be entitled to use in any way it deems fit any skills, techniques or know how acquired or developed or used in performance of this Agreement provided always that such skills, techniques or know how do not:
          1. infringe the other party’s Intellectual Property Rights now or in the future; or
          2. disclose or breach the confidentiality of the other party’s Confidential Information.
      1. Fees and expenses
        1. The Client shall pay GCUSA the Fees as set out in the Proposal.
        2. All amounts due under this Agreement are exclusive of TAX (if applicable), sales or other tax applicable which shall be paid in addition by the Client at the rate and in the manner for the time being prescribed by law..
        3. GCUSA shall invoice the Client electronically to the email address notified by the Client in writing to GCUSA for sums as and when due in accordance with the Proposal
        4. The Client shall pay such sums in full without set-off or counterclaim within thirty (30) days from the date of invoice.
        5. Where sums due hereunder are not paid in full by the due date, GCUSA may, without limiting its other rights, charge interest on such sums at the rate of 5% a year.
        6. Interest shall apply from the due date for payment until actual payment in full, whether before or after decree.
    1. Limits on liability
      1. The parties expressly agree that GCUSA shall not be liable in any way for any fault, problem or issue with the System which arises as a result of any fault, problem or issue with Third Party Software.
      2. Subject to the following clauses, in no event shall the aggregate liability of any party to the other (whether it contract, delict (including negligence) or otherwise) and in respect of all claims, losses and damages arising under or in connection with this Agreement exceed:
        1. $500 USD in respect of any one claim or series of related claims; and
        2. provided that this shall be subject to an overall limit of the total amount payable under this Agreement in respect of any and all claims, losses and damages arising under or in connection with this Agreement.
      3. The above limits on liability shall apply in respect of any indemnities provided by either party under this Agreement, but shall not apply in relation to a party’s liability for a breach of their obligations under clause 26.
      4. Each party’s liability to the other in contract, delict (including negligence), misrepresentation (whether innocent or negligent), breach of statutory duty or otherwise arising out of or in connection with this Agreement shall not extend to any:
        1. loss of profits;
        2. loss of business opportunity;
        3. loss of productivity;
        4. loss of goodwill;
        5. loss of data;
        6. loss of anticipated savings; or
        7. any special, indirect or consequential loss or damage whatsoever.
      5. The parties agree that the limitations on liability in this Agreement are reasonable given their respective commercial positions and ability to purchase relevant insurance in respect of risks under this Agreement.
      6. Notwithstanding the above or other limitations and exclusions of liability set out in this Agreement, neither party excludes or limits any liability for:
        1. personal injury (including sickness and death) to the extent that such injury results from the negligence or wilful default of a party or its employees; or
        2. fraud or fraudulent misrepresentation; or
        3. any other liability to the extent the same cannot be excluded or limited by law.
      7. Client Requirements and Specification
        1. In the event that the Client reasonably requires amendment to the Specification, GCUSA shall amend the Specification accordingly but only to the extent that such amendments are within the scope of the Client’s Requirements as previously notified to GCUSA.
        2. If the Client’s requested amendments to the Specification change the scope of the Client Requirements as previously notified, GCUSA shall be entitled to request a Change to any price which may have been agreed between the parties in respect of the Specification and any reasonable and necessary time extensions or alterations to the extent reasonably required to accommodate such change in scope. Any such Change shall be agreed between the parties in accordance with the Change Control Procedure. This process shall repeat until the Specification is agreed (both parties acting reasonably).
    2. Title and risk in the System
      1. Title in System shall pass from GCUSA to the Client upon actual delivery of the System to the Client and payment by the Client in full.
      2. Risk in the System shall pass from GCUSA to the Client upon the earlier of payment for the System in full or actual delivery of the System to the Client.
    3. GCUSA Personnel
      1. GCUSA shall ensure that it has sufficient, suitable, experienced and appropriately qualified GCUSA Personnel to perform this Agreement.
      2. GCUSA Personnel shall at all times remain the employees or sub-contractors of GCUSA and shall remain under the overall control of GCUSA. GCUSA and the Client acknowledge and agree that GCUSA Personnel are not employees of the Client, nor shall anything in this Agreement deem them employees of the Client.
    4. Costs

Except for the payments specifically agreed in this Agreement, each party is responsible for its legal and other costs in relation to the preparation and performance of this Agreement.

    1. Representations
      1. GCUSA confirms to the Client that:
        1. GCUSA has the right, power and authority to enter into this Agreement and to supply the System and perform the Services;
        2. the System shall, on delivery, conform and perform according to the Specification in all material respects;
        3. the Documentation shall provide users with adequate instructions to enable them to effectively use the System;
        4. any Services shall be performed:
          1. 15.1.4.1.by suitably qualified and competent personnel who shall exercise all due skill and care and all due diligence in the execution thereof;
          2. 15.1.4.2.in accordance with Good Industry Practice;
          3. 15.1.4.3.so as to conform with all statutory requirements and applicable regulations relating to the Services and the System;
          4. 15.1.4.4.in such a way as not to cause any fault or malfunction in any related software, equipment or system of the Client; and
          5. 15.1.4.5.in such a way as not to cause any interruption to the business processes of the Client (other than any agreed and unavoidable interruption which is required in order to perform the Services in a proper and efficient manner).
      2. The representations specified in clause 15.1.2 above are:
        1. subject to the Client giving notice to GCUSA as soon as it is reasonably able upon becoming aware of the breach of representation; and
        2. in the case of a representation as to conformance and performance according to the Specification, subject to such notice must be given within two (2) months of the date of delivery of the System.

When notifying GCUSA of a breach the Client shall use its reasonable endeavours to provide GCUSA with such documented information, details and assistance as GCUSA may reasonably request.

      1. All warranties and any other representations as to the System, whether statutory or implied, are hereby expressly excluded to the fullest extent permitted by law.
      2. GCUSA shall not be liable under this clause or be required to remedy any problem arising from or caused by any modification (whether by way of alteration, deletion, addition or otherwise) made to any part of the System by anyone other than GCUSA without its express prior written consent.
      3. Any representations given by GCUSA in this Agreement with respect to the performance of any System (if any) shall be subject to the Client using the System properly in compliance with this Agreement and the Documentation, and shall not apply to the extent that:
        1. 7.15.5.1.the Client has failed to install any update, fix or improvement which has previously been provided to it; or
        2. 7.15.5.2.the defect or error is wholly caused by any equipment or Third Party Software (such as the Citrix Podio Platform) used in connection with the System.
      4. The Client acknowledges that GCUSA is not and cannot be aware of the extent of any potential loss or damage to the Client resulting from any failure of the System to conform to the Specification or any failure by GCUSA to discharge its obligations under this Agreement.
      5. Unless otherwise agreed in writing, GCUSA does not warrant or represent that the System shall be:
        1. 7.15.7.1.uninterrupted or error free; or
        2. 7.15.7.2.compatible with other software or equipment .
      1. Non-solicitation
        1. Neither party shall (except with the written consent of the other) directly or indirectly solicit or entice away from the employment of the other (or attempt to do so) any person employed or engaged by such other party in the provision or receipt of the any System under this Agreement at any time during the term of this Agreement or for a period of twelve (12)  months after the termination or expiry of this Agreement.
        2. If a party breaches the above clause, it shall pay to the other party as compensation an amount equal to twelve (12) months’ salary of the relevant employee or contractor (as the case may be), and the parties acknowledge that this represents a genuine pre-estimate of the loss likely to be suffered through breach of this clause.
        3. If the periods above are held by a court or tribunal of competent jurisdiction to be void or unenforceable, such provisions shall apply with such modification to the relevant wording and/or reduction in the length of the period as required to make them valid and enforceable.
    1. Entire agreement

This Agreement, the Engagement Letter and the Proposal contains the whole agreement between the parties relating to its subject matter and supersedes any prior agreements, representations or understandings between them unless expressly incorporated by reference in this Agreement. Each party acknowledges that it has not relied on, and shall have no remedy in respect of, any representation (whether innocent or negligent) made but not expressly embodied in this Agreement. Nothing in this clause limits or excludes any liability for fraud or fraudulent misrepresentation.

 

    1. Force Majeure
      1. A party shall not be liable if delayed in or prevented from performing its obligations under this Agreement due to Force Majeure, provided that it:
        1. promptly notifies the other of the Force Majeure event and its expected duration, and
        2. uses reasonable endeavours to minimise the effects of that event.
      2. If, due to Force Majeure, a party:
        1. is unable to perform a material obligation, or
        2. is delayed in or prevented from performing its obligations for a continuous period of more than ninety (90) days,

the other party may, within a further ten (10) days terminate this Agreement on notice, otherwise this Agreement shall continue in full force and effect.

      1. Further assurance

Each party shall, at its own cost, do all further acts and execute all further documents necessary to give effect to this Agreement.

      1. Termination
        1. Either party may without prejudice to its other rights and remedies by notice in writing to the other party immediately terminate this Agreement if the other:
          1. is in material or persistent breach of any of its obligations under this Agreement and if that breach is capable of remedy and the other has failed to remedy that breach within fourteen (14) days after receiving written notice requiring it to remedy that breach; or
        2. The Client may without prejudice to its other rights and remedies by notice in writing to GCUSA immediately terminate this Agreement if GCUSA ceases carrying on its business; or
        3. In the event of termination of this Agreement for any reason, each party shall within seven (7) days of such termination return (or, at the other party’s option, destroy) all the other party’s Confidential Information in its possession or under its control and all copies of such information; and
        4. If this Agreement expires or is terminated in whole or in part for any reason GCUSA shall, subject to payment of reasonable fees, provide all reasonable assistance to the Client to ensure the orderly migration of this Agreement or replacement services to the Client or, at the Client’s request, a replacement supplier. The remaining provisions of this clause shall not prejudice or restrict the generality of this obligation.
        5. Immediately on termination of this Agreement, GCUSA shall return to the Client all Client Materials together with all other materials and assets and other information provided to GCUSA.
        6. Termination of this Agreement for whatever reason shall not operate to affect any provisions that expressly or by implication survive termination.
    1. Notices
      1. Notices under this Agreement must be in writing and sent to the other party’s Authorised Contact at the address specified in the Proposal or at the beginning of the Agreement (or such other applicable address agreed by the parties from time to time in writing). Notices may be given, and shall be deemed received if correctly addressed:
        1. by first-class post: two (2) Business Days after posting;
        2. by airmail: seven (7) Business Days after posting;
        3. by hand: on delivery;
        4. by email: on receipt of a delivery return mail from the correct address within 24 hours from delivery (if no notice of delivery failure is received).
    2. EU Data Protection Laws
      1. For the purposes of this clause 25, the terms “Controller”, “Data Controller”, “Data Processor”, “Data Subjects”, “Personal Data”, “Processor” and “Processing” (including any derivatives thereof) shall have the meanings given to them in the Data Protection Laws;
      2. In the event that GCUSA is required to Process any Personal Data on behalf of the Client as Processor or Data Processor in relation to the Services (“Client Personal Data”), GCUSA shall:
        1. Process the Client Personal Data in accordance with the Data Protection Laws, the terms of this Agreement and the Client’s instructions (and not otherwise unless alternative Processing instructions are agreed between the parties in writing) except where otherwise required by applicable law (and shall inform the Client of that legal requirement before processing, unless applicable law prevents it doing so on important grounds of public interest);
        2. if GCUSA believes that any instruction received by it from the Client is likely to infringe the Data Protection Laws, it shall promptly inform the Client and be entitled to cease to provide the relevant Services until the parties have agreed appropriate amended instructions which are not infringing;
        3. taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of the Processing of the Client Personal Data to be carried out under or in connection with this Agreement, as well as the risks of varying likelihood and severity for the rights and freedoms of natural persons and the risks that are presented by the Processing, especially from accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to the Client Personal Data transmitted, stored or otherwise Processed, GCUSA shall implement appropriate technical and organisational security measures appropriate to the risk, including (as appropriate) those matters mentioned in the Data Protection Laws;
        4. not permit any Processing of the Client Personal Data by any sub-contractor without the written authorisation of the Client and, where the Client’s written authorisation is given, ensure that such sub-contractors are subject to written contractual obligations concerning the Client Personal Data which are no less onerous than those imposed on GCUSA under this Agreement;
        5. ensure that all persons authorised by GCUSA to Process the Client Personal Data are subject to a duty of confidentiality in respect of the Client Personal Data;
        6. not Process and/or transfer the Client Personal Data to countries outside the European Union or to any international organisation without the prior written authorisation of the Client;
        7. in accordance with the Data Protection Laws, make available to the Client such information that is in its possession or control as is necessary to demonstrate GCUSA’s compliance with the obligations placed on it under this clause 25 and to demonstrate compliance with the obligations on each party imposed by the relevant provisions of the Data Protection Laws, and allow for and contribute to audits, including inspections, by the Client (or another auditor mandated by the Client) for this purpose (subject to a maximum of one audit request in any twelve (12) month period under this Clause 15.2.7); and
        8. at the end of the provision of the Services relating to the Processing of Client Personal Data, at the Client’s cost and the Client’s option, GCUSA shall either return all of the Client Personal Data to the Client or securely dispose of the Client Personal Data (and thereafter promptly delete all existing copies of it) except to the extent that any applicable law requires GCUSA to store such Client Personal Data.
      3. GCUSA shall (at the Client’s cost):
        1. assist the Client in ensuring compliance with the Client’s obligations pursuant to the relevant obligations under the Data Protection Laws, taking into account the nature of the Processing and the information available to GCUSA; and
        2. taking into account the nature of the processing, assist the Client (by appropriate technical and organisational measures), insofar as this is possible, for the fulfilment of the Client’s obligations to respond to requests for exercising the Data Subjects’ rights under the relevant provisions of the Data Protection Laws in respect of any Client Personal Data.
      4. The Client shall at all times comply with all Data Protection Laws in connection with the processing of Client Personal Data. The Client shall ensure all instructions given by it to GCUSA in respect of Client Personal Data (including the terms of this Agreement) shall at all times be in accordance with Data Protection Laws.
      5. Processing of the Client Personal Data by the GCUSA under this Agreement shall be for the following subject-matter, duration, nature and purposes and involve the following types of Personal Data and categories of Data Subjects.
        1. Subject-matter of processing: GCUSA Processes the Client Personal Data as necessary to deliver and provide the Services.
        2. Duration of the processing: The Term of this Agreement or as otherwise agreed between the parties.
        3. Nature and purpose of the processing: Data is processed for client business systems and practices.
        4. Type of Personal Data: Names, Email Addresses, Phone Numbers, Home Addresses, Work Addresses, Social Media Account Names, Passwords, Companies House Information
      6. The Client shall indemnify and keep indemnified GCUSA against all losses, claims, damages, liabilities, fines, sanctions, interest, penalties, costs, charges, expenses, compensation paid to Data Subjects, demands and legal and other professional costs (calculated on a full indemnity basis and in each case whether or not arising from any investigation by, or imposed by, a supervisory authority) arising out of or in connection with any breach by the Client of its obligations under this Clause 25.
    3. Confidential information
      1. Each party shall maintain the confidentiality of the other party’s Confidential Information and shall not without the prior written consent of the other use, disclose, copy or modify the other party’s Confidential Information (or permit others to do so) other than as necessary for the performance of its rights and obligations under this Agreement.
      2. Each party undertakes to:
        1. disclose the other party’s Confidential Information only to those of its officers, employees, agents and contractors (including GCUSA Personnel) to whom and to the extent to which such disclosure is necessary for the purposes contemplated under this Agreement; and
        2. to procure that such persons are made aware of and agree in writing to observe the obligations in this clause.
      3. Each party shall give notice to the other of any unauthorised misuse, disclosure, theft or loss of the other party’s Confidential Information immediately upon becoming aware of the same.
      4. The provisions of this clause shall not apply to information which:
        1. is or comes into the public domain through no fault of the recipient, its officers, employees, agents or contractors;
        2. is lawfully received by the recipient from a third party free of any obligation of confidence at the time of its disclosure;
        3. is independently developed by the recipient, without access to or use of such information; or
        4. is required by law, by court or governmental or regulatory order to be disclosed provided that the relevant party, where possible, notifies the other party at the earliest opportunity before making any disclosure.
      5. The obligations under this clause shall survive the variation, expiry or termination of this Agreement for a period of five (5) years thereafter.
    4. Relationship

The parties are independent businesses and not partners, principal and agent, or employer and employee, or in any other relationship of trust to each other.

    1. Severability
      1. Each clause of this Agreement is severable and distinct from the others. If any clause in this Agreement (or part thereof) is or becomes illegal, invalid or unenforceable under applicable law, but would be legal, valid and enforceable if the clause or some part of it was deleted or modified (or the duration of the relevant clause reduced):
        1. the relevant clause (or part thereof) shall apply with such deletion or modification as may be required to make it legal, valid and enforceable; and
        2. without limiting the foregoing, in such circumstances the parties shall promptly and in good faith seek to negotiate a replacement provision consistent with the original intent of this Agreement as soon as possible.
      1. Compliance with law

Each party shall comply and shall (at its own expense unless expressly agreed otherwise) ensure that in the performance of its duties under this Agreement, its employees, agents and representatives will comply with all applicable laws and regulations, provided that neither party shall be liable for any breach of this clause 29 to the extent that such breach is directly caused or contributed to by any breach of this Agreement by the other party (or its employees, agents and representatives).

      1. Assignation and subcontracting

No party may assign, subcontract or encumber any right or obligation under this Agreement, in whole or in part, without the other’s prior written consent.

      1. Succession

This Agreement shall be binding upon, and enure to the benefit of, each of the parties, their respective personal representatives, trustees or executors and their respective successors in title.

      1. Variation

No amendment or variation of this Agreement shall be valid unless agreed in writing by an authorised signatory of each party.

 

      1. Change control
        1. All amendments or variations or other changes to this Agreement shall take place in accordance with the following Change Control Procedure:
          1. Either party may submit at any time a request for Change to the other party.
          2. Where GCUSA originates a Change, it shall provide with the Change request, a Change Control Note.
          3. Where the Client originates a proposed Change, it shall provide GCUSA with such information (as is within the Client’s reasonable possession or control) which GCUSA reasonably considers is relevant to such Change or may assist GCUSA in the preparation of the Change Control Note. GCUSA shall provide the Client within fourteen (14) days of receiving the request for a Change (or such other period as may be agreed between the parties) with a Change Control Note.
          4. The recipient of an Change request shall act reasonably and in good faith in deciding whether to accept or decline it in its sole discretion, but in any event do so within fourteen (14) days of receipt of the Change request (or such later time as may be agreed) indicating acceptance of the change, or setting out in full its reasons for declining.
          5. Where the Client and GCUSA agree to implement a Change, the costs of implementing a Change shall be paid in addition to the amounts due for providing the System as set out in the Change Control Note, except where the parties (acting reasonably) agree in writing that the Change is attributable to some act or default of GCUSA or GCUSA Personnel in which case the Change shall be at GCUSA’s expense.
          6. The parties shall have no obligations in respect of a Change Control Note unless they expressly agree to do so by them both executing the Change Control Note or otherwise agree to do so in writing.
      2. Waiver
        1. Any rights, powers or remedies conferred upon a party by this Agreement shall be in addition to and without prejudice to all other rights, powers and remedies available to the party under general law (except expressly excluded in this Agreement).
        2. Unless otherwise expressly agreed, no delay, act or omission by either party in exercising any right or remedy shall be deemed a waiver of that, or any other, right or remedy.
    1. Set-off
      1. Neither party may set off any amount the other owes it against any amount it owes the other party in relation to this Agreement unless otherwise agreed.
      2. All payments under this Agreement shall be made without set-off or counterclaim, free and clear of and without deduction of any taxes, levies, duties, charges and withholdings of any kind now or in future imposed in any jurisdiction. If a party is compelled by law to deduct or withhold any taxes, levies, duties, charges and withholdings of any kind, it shall pay to the other such additional amount as will ensure that the other is paid the full amount it would have received but for such deduction or withholding.
    2. Dispute resolution
      1. The parties will attempt in good faith to negotiate a settlement to any dispute between them arising out of or in connection with this Agreement within thirty (30) days of either party notifying the other of the dispute and such efforts will involve the escalation of the dispute to the senior management of each party.
      2. If the dispute cannot be resolved by the parties pursuant to clause 36.1 the parties will refer it to mediation pursuant to the procedure set out in clause 36.4.
      3. The obligations of the parties under this Agreement will not cease, or be suspended or delayed by the reference of a dispute to mediation and each party and their representatives will comply fully with the requirements of this Agreement at all times.
      4. The procedure for mediation and consequential provisions relating to mediation are as follows:
        1. a neutral adviser or mediator (the “Mediator”) will be chosen by agreement between the parties
        2. The parties will within fourteen (14) days of the appointment of the Mediator meet with him in order to agree a programme for the exchange of all relevant information and the structure to be adopted for negotiations to be held.
        3. Unless otherwise agreed, all negotiations connected with the dispute and any settlement agreement relating to it will be conducted in confidence and without prejudice to the rights of the parties in any future proceedings.
        4. If the parties reach agreement on the resolution of the dispute, the agreement will be recorded in writing and will be binding on the parties once it is signed by their duly authorised representatives.
        5. If the parties fail to reach agreement in the structured negotiations within thirty (30) days of the Mediator being appointed, or such longer period as may be agreed by the parties, then any dispute or difference between them may be referred to the Courts.
      5. Nothing in this dispute resolution procedure will prevent the parties from seeking from any court of competent jurisdiction an interim order restraining the other party from doing any act or compelling the other party to do any act.
    3. Counterparts

This Agreement may be executed in any number of counterparts but shall not be effective until each party has executed at least one counterpart. Each counterpart shall constitute an original of this Agreement but all the counterparts shall together constitute one and the same agreement. In the event of execution in counterpart, the date of this Agreement is the last date of delivery of all counterparts which, for ease of reference may be noted on the front page of this Agreement.

Data Sub Processors

We are required by law to provide our customers with an updated list of our sub-processors that we use to provide the best possible service to you. We are confident that these providers (data processors) have a highly robust approach to data protection, understand the obligations of the GDPR and are well prepared to meet them. In many cases we have new Data Agreements with individual Sub Processors which specifically cover GDPR obligations.

Name

Type of Processing

Place of Processing

Siteground

Infrastructure/Hosting

EU

Digital Ocean

Infrastructure/Hosting

EU

Google

Infrastructure/Email

EU

Citrix Podio

Infrastructure/System

EU

Citrix ShareFile

Infrastructure/Storage

EU

Citrix RightSignature

Infrastructure/System

EU

GlobiFlow

Infrastructure/System

US

GlobiMail

Infrastructure/Email

US

ProcFu

Infrastructure/System

US

thatapp.io

Infrastructure/System

US

(Last Update: October 2020)