SUPER BENJI TERMS AND CONDITIONS
SUPER BENJI TERMS AND CONDITIONS
Introduction
1.1 This Agreement ("Terms and Conditions" or "Agreement") governs the licensing of the software, Super Benji ("Software"), owned and operated by Super Benji Limited ("The Company"), a company registered in England and Wales under company number 15355853, with its registered office located at 2 Harefields, Oxford, OX2 8NS ("Company Address").
1.2 This Agreement constitutes a legally binding contract between The Company and the entity or individual who is agreeing to these Terms ("The User"). The User agrees to be bound by these Terms in consideration for the right to use the Software as outlined herein.
WHEREAS:
1.3 The User acts as a Data Controller.
1.4 The User wishes to subcontract certain Services, which imply the processing of personal data, to The Company.
1.5 The Parties seek to implement a data processing agreement that complies with the requirements of the current legal framework in relation to data processing and with the Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation).
1.6 The Parties wish to lay down their rights and obligations regarding the confidentiality of information, the nature of which shall be specified within this Agreement.
1.7 For the purposes of this Agreement, The Company and The User are collectively referred to as "The Parties." This Agreement forms part of the Contract for Services ("Principal Agreement") between The Parties. By agreeing to these terms, The User is bound by them and acknowledges the rights and obligations as set forth herein.
1.8 Unless otherwise defined herein, capitalised terms and expressions used in this Agreement shall have the following meaning:
1.8.1 “Agreement” means this Data Processing Agreement and all Schedules;
1.8.2 “Personal Data” means any Personal Data about prospects, including names, email addresses, links to social media websites, and any other information which could link to the identity of an individual, or provide additional details about the individual which could be deemed as personal information;
1.8.3 “Contracted Data Processor” means a Subprocessor;
1.8.4 “Data Protection Laws” means EU Data Protection Laws and, to the extent applicable, the data protection or privacy laws of any other country;
1.8.5 “EEA” means the European Economic Area;
1.8.6 “EU Data Protection Laws” means EU Directive 95/46/EC, as transposed into domestic legislation of each Member State and as amended, replaced or superseded from time to time, including by the GDPR and laws implementing or supplementing the GDPR;
1.8.7 “GDPR” means EU General Data Protection Regulation 2016/679;
1.8.8 “Data Transfer” means:
1.8.8.1 a transfer of Personal Data from The Company to a Contracted Data Processor; or
1.8.8.2 an onward transfer of Personal Data from a Contracted Data Processor to a SubContracted Data Processor , or between two establishments of a Contracted Data Processor, in each case, where such transfer would be prohibited by Data Protection Laws (or by the terms of data transfer agreements put in place to address the data transfer restrictions of Data Protection Laws);
1.8.9 “Services” means the automation of emails and other content which Super Benji Limited provides.
1.8.10 “Subprocessor” means any person appointed by or on behalf of Super Benji Limited to process Personal Data on behalf of The Company in connection with the Agreement.
1.8.11 The terms, “Commission”, “Controller”, “Data Subject”, “Member State”, “Personal Data”, “Personal Data Breach”, “Processing” and “Supervisory Authority” shall have the same meaning as in the GDPR, and their cognate terms shall be construed accordingly.
Licence Grant
2.1 The Company grants The User a non-exclusive, non-transferable licence to use the Software as a managed service, limited to one user seat.
2.2 The Company grants The User the right to use all content generated by the Software for the purpose of sales and marketing.
2.3 This licence commences upon The User's acceptance of these Terms and shall continue unless terminated in accordance with these Terms.
Subscription
3.1 Upon subscribing to the Software, the first payment will cover the remainder of the current month, from the date of subscription to the end of that month. Subsequent payments will be due on the anniversary of each month for the upcoming month's usage.
3.2 If payment is not received by the due date, access to services may be revoked immediately.
Managed Service
4.1 The Software is provided as a managed service, and any required changes, updates, or modifications to the Software shall be managed and implemented solely by The Company.
4.2 To request changes or discuss potential modifications to the Software, The User should contact their assigned Customer Success Manager (CSM).
Payments and Cancellation
5.1 Fees for the Subscription Period are specified in a monthly invoice and may be subject to change upon renewal. Any changes in fees will be communicated to The User at least 30 days before the new fees apply.
5.2 Payments are due within 7 days of invoice, with the invoice issued on the anniversary of your subscription. Late payments may be subject to interest and late fees at the maximum rate permitted by law. If your anniversary started on the 31st of the month, the start date will be taken on an alternative date managed by The Company.
5.3 If The User wishes to cancel the Subscription, they must give 30 days’ written notice to The Company, with the exception of the first month of service, whereby The User can decide not to renew the subscription at any time.
5.4 The Company reserves the right to price rises with a minimum 30 day notice period. Price rises will be communicated to The User at least 30 days before the new fees apply. If a price increase exceeds 5% annually, The User has the right to terminate the agreement without penalty within 30 days of receiving notice.
Termination Process
6.1 To terminate the Subscription, The User shall provide a thirty (30) days prior notice to Company, with the exception of the first month of service, whereby The User can decide not to renew the subscription at any time.
6.2 Either party may terminate this agreement with immediate effect upon written notice if the other party breaches any of these Terms and fails to correct the breach within a reasonable period specified in the notice.
Intellectual Property Rights
7.1 All intellectual property rights in the Software and any related documentation are owned by or licensed to The Company. No ownership rights are transferred under these Terms.
7.2 The User retains all rights, title, and interest in and to all data provided to the Company.
7.3 The Company grants The User the right to use all content generated by the Software for the purpose of sales and marketing.
Liability
8.1. The Company shall not be liable for any indirect, special, or consequential damages, including but not limited to loss of profits, business, revenue, goodwill, or data, arising out of or in connection with the use of the Software.
8.2 In a scenario whereby The User has suffered indirect, special or consequential damages, The Company may allow termination of this agreement with no obligation of a final month’s payment
8.3 Any liability of The Company shall be limited to an amount up to a maximum value of fees paid by The User, to The Company, within the six months preceding the date of the violation.
General
9.1 These Terms constitute the entire agreement between The User and The Company regarding the use of the Software.
9.2 These Terms are governed by and construed in accordance with the laws of England and Wales, and each party agrees to submit to the exclusive jurisdiction of the courts of England and Wales.
Contact
10.1 For any queries regarding these Terms or the Software, The User should contact their assigned CSM or The Company at the registered address provided above.
Data Protection (GDPR)
11.1 The Company shall:
11.1.1 comply with all applicable Data Protection Laws in the Processing of Personal Data; and
11.1.2 not Process Personal Data other than on the relevant User’s documented instructions.
11.2 The User instructs The Company to process Personal Data.
11.3 Company shall take reasonable steps to ensure the reliability of any employee, agent or contractor of any Contracted Data Processor who may have access to The Personal Data, ensuring in each case that access is strictly limited to those individuals who need to know / access the relevant Personal Data, as strictly necessary for the purposes of the Principal Agreement, and to comply with Applicable Laws in the context of that individual’s duties to the Contracted Data Processor , ensuring that all such individuals are subject to confidentiality undertakings or professional or statutory obligations of confidentiality.
11.4 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, Company shall in relation to The Personal Data implement appropriate technical and organisational measures to ensure a level of security appropriate to that risk, including, as appropriate, the measures referred to in Article 32(1) of the GDPR.
11.5 In assessing the appropriate level of security, Company shall take account in particular of the risks that are presented by Processing, in particular from a Personal Data Breach.
11.6 Taking into account the nature of the Processing, The Company shall assist The User by implementing appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of The Company obligations, as reasonably understood by The User, to respond to requests to exercise Data Subject rights under the Data Protection Laws. The Company shall store and process all User data within the EEA unless explicitly agreed otherwise in writing.
11.7 The Company shall comply at all times with Article 30 of the GDPR (entitled “Records of processing activities”). The Company shall provide The User with the records applicable to The User or The User Personal Data to User upon the User’s request
11.7.1 promptly notify User if it receives a request from a Data Subject under any Data Protection Law in respect of Personal Data; and
11.7.2 ensure that it does not respond to that request except on the documented instructions of User or as required by Applicable Laws to which The Company is subject, in which case The Company shall to the extent permitted by Applicable Laws inform User of that legal requirement before the The Contracted Data Processor responds to the request.
11.8.1 The Company shall notify The User within 24 hours of becoming aware of a Personal Data Breach affecting The User Personal Data, providing User with sufficient information to allow The User to meet any obligations to report or inform Data Subjects of the Personal Data Breach under the Data Protection Laws.
11.8.2 Company shall cooperate with The User and take reasonable commercial steps as directed by User to assist in the investigation, mitigation and remediation of each such Personal Data Breach.
11.9 Impact Assessment and Prior Consultation. The Company shall provide reasonable assistance to The User with any data protection impact assessments, and prior consultations with Supervising Authorities or other competent data privacy authorities, which is required by article 35 or 36 of the GDPR or equivalent provisions of any other Data Protection Law, in each case solely in relation to Processing of the User Personal Data by, and taking into account the nature of the Processing and information available to, the Contracted Data Processor.
11.10 Subject to this section 9 The Company shall promptly and in any event within 60 business days of the date of cessation of any Services involving the Processing of Personal Data (the “Cessation Date”), delete and procure the deletion of all copies of those Personal Data.
11.11 Subject to this section 10, The Company shall make available to The User on request all information necessary to demonstrate compliance with this Agreement, and shall allow for and contribute to audits, including inspections, by The User or an auditor mandated by The User in relation to the Processing of The Personal Data by the Contracted Data Processor.
11.12 Information and audit rights of The Company only arise under section 11.8 to the extent that the Agreement does not otherwise give them information and audit rights meeting the relevant requirements of Data Protection Law.
11.13 The Company may not transfer or authorise the transfer of Data to countries outside the EU and/or the European Economic Area (EEA) without the prior written consent of The Company. If personal data processed under this Agreement is transferred from a country within the European Economic Area to a country outside the European Economic Area, the Parties shall ensure that the personal data are adequately protected. To achieve this, the Parties shall, unless agreed otherwise, rely on EU approved standard contractual clauses for the transfer of personal data.
11.14 Liability. Notwithstanding anything to the contrary in the Agreement or any agreement between the Parties, the Company's and Company’s affiliates’ liability related to Personal Data, or for any breach of, or related to, this Agreement, violation of Data Protection Law and/or Personal Data Breach occurring in the Company’s, Company affiliates’ and/or their Subprocessor’ systems shall be liable for any amount up to a maximum value of fees paid by The User, to the Company, within the six months preceding the date of the violation.
11.15 Notices. All notices and communications given under this Agreement must be in writing and will be delivered personally, sent by post or sent by email to the address or email address set out in the heading of this Agreement at such other address as notified from time to time by the Parties changing address.
Service Level Agreement.
12.1 In the event of unscheduled downtime exceeding 5% in any calendar month (i.e. ± one day), The Company will seek to send additional messages on future dates to rectify missed messages. This could result in an extension of the campaign end-date of up to 14 days. In the event that messages are not sent, The User shall be entitled to credits in proportion to the messages which have not been sent, up to 100% of the monthly fee.
Non Disclosure Agreement (NDA)
13.1 Each of the parties to this Agreement intends to disclose information (the Confidential Information) to the other party for the purpose of exploring opportunities related to Super Benji clients ("The Purpose")
13.2 Each party to this Agreement is referred to as ("The Recipient") when it receives or uses the Confidential Information disclosed by the other party.
13.3 The Recipient undertakes not to use the Confidential Information disclosed by the other party for any purpose except the Purpose, without first obtaining the written agreement of the other party.
13.4 The Recipient undertakes to keep the Confidential Information disclosed by the other party secure and not to disclose it to any third party except to its employees [and professional advisers] who need to know the same for the Purpose, who know they owe a duty of confidence to the other party and who are bound by obligations equivalent to those in clause 3 above and this clause 4.
13.5 The undertakings in clauses 13.3 and 13.4 above apply to all of the information disclosed by each of the parties to the other, regardless of the way or form in which it is disclosed or recorded but they do not apply to:
13.5.1 any information which is or in future comes into the public domain (unless as a result of the breach of this Agreement); or
13.5.2 any information which is already known to the Recipient and which was not subject to any obligation of confidence before it was disclosed to the Recipient by the other party.
13.6 Nothing in this Agreement will prevent the Recipient from making any disclosure of the Confidential Information required by law or by any competent authority.
13.7 The Recipient will, on request from the other party, return all copies and records of the Confidential Information disclosed by the other party to the Recipient and will not retain any copies or records of the Confidential Information disclosed by the other party.
13.8 Neither this Agreement nor the supply of any information grants the Recipient any licence, interest or right in respect of any intellectual property rights of the other party except the right to copy the Confidential Information disclosed by the other party solely for the Purpose.
13.9 The confidentiality obligations in clauses 13.3 and 13.4 will continue for a period of five years after the termination of this Agreement.