Terms and conditions for clients using MyGorkana, and specific Gorkana definitions and details about our media database, monitoring, analysis and social media services.
A signed Order Confirmation from both parties will constitute acceptance of this Agreement. Any changes or additions to an Order Confirmation, these Standard Terms and Conditions or Schedule 1 must be agreed in writing by both parties.
Gorkana reserves the right to determine whether or not such changes are included within the Charges.
1. DEFINITIONS
Analysis Services means analysis of Input Material, as well as Cuttings and Mentions delivered by Gorkana in Monitoring and Social Media Services, in accordance with the Client’s requirements set out in the Order Confirmation or otherwise agreed in writing
Automated Analysis means Analysis Services that are processed programmatically
Charges mean the charges payable by the Client to Gorkana for the Services as set out in the Order Confirmation
CLA means The Copyright Licensing Agency, 5th Floor, Shackleton House, 4 Battle Bridge Lane, London, SE1 2HX (www.cla.co.uk)
Client means the person or persons named as the Client in the Order Confirmation for whom Gorkana has agreed to provide the Services in accordance with this Agreement
Client Content means any and all content, software and other information or materials owned or licensed by Client and provided by Client to Gorkana for use pursuant to this Agreement including the Client Data and the Input Material;
Client Data means the data inputted onto the Media Database by the Client or on its behalf (including the Client’s activity reports and additional journalist information inputted by the Client)
Commencement Date shall have the meaning set out in the Order Confirmation;
Confidential Information means any information or materials of any kind and in any form (whether disclosed before or after the date of this Agreement) relating to amongst others the disclosing party or any associated company of the disclosing party including information or materials (or copies thereof) relating to the disclosing party’s business plans, intellectual property (to the extent that the same are not in the public domain), customers or suppliers lists, formats, plans or proposals or any other information whose confidential nature can be reasonably ascertained or presumed by the receiving party
Copyright Body means the NLA, CLA or other copyright owners or publishers, CRM means a software feature that is part of the Database Service which allows the Client to log their interactions with journalists
Cutting means an article from any media source other than Social Media, including but not limited to printed press or printed or digital editions of journals, magazines, periodicals, broadcast or other sources of news or current affairs;
Database Licensed Materials means any of the following: the Media Database, the Gorkana Data, Gorkana alerts, Forward Features, Media Requests and CRM
Database Services means the provision of Database Licensed Materials as set out in the Order Confirmation
Excessive Volume means monthly volumes of Cuttings at least 250% of the applicable Volume Band set out in the Order Confirmation
Excessive Volume Charge means a charge equivalent to the Volume Band charge which Gorkana shall have the right to add to the Charges each time the number of Cuttings that the Client is actually receiving reaches Excessive Volume in any month during the Term
Fair Usage Limits is a Mentions limit placed on Social Media Query – based Subscriptions as decided upon by Gorkana to ensure the optimal performance of the Service for all Clients
Fixed Term means an Agreement that has a 12 month Initial Term or as defined in the Order Confirmation
Force Majeure means in relation to either of the parties hereto any circumstances beyond the reasonable control of that party
Forward Features means a service of searchable data on planned features and supplements from a range of publications and media across the UK including email updates of relevant forward feature synopsis information
Gorkana Alert means a daily alerts service covering the UK, Europe and the US hich details editorial changes in the media and focuses on (a) editorial changes from Monday to Thursday and (b) responsible editorial members on duty on the national newspapers over the weekend on Friday
Gorkana Content means any and all content, software and other information or materials owned or licensed by Gorkana and provided by Gorkana to Client for use or otherwise used by Gorkana pursuant to this Agreement including the Database Licensed Materials, the Media Database, the Gorkana Websites; Gorkana Data means journalist and influencers data researched by Gorkana from UK based media or other region specific media and subscribed to by Client (applicable if Database Services have been selected in the Order Confirmation and Gorkana Data included in Schedule 1). Gorkana Data outside of UK based media may have specific sector focus.
At the date of this Agreement, the European data covers mainly financial and trade media within France, Germany, Italy, Switzerland, Austria, Belgium Netherlands and Luxembourg; while the US data covers mainly financial services, legal professional and healthcare data although Gorkana reserves the right to change the scope and size of this coverage during the Term.
Initial Term shall have the meaning set out in the Order Confirmation
Input Material means any and all necessary Cuttings, documents, pictures or other images, or other materials, and any data or other information provided by or on behalf of the Client to Gorkana to enable Gorkana to provide the Services
Intellectual Property Rights means all present and future rights associated with works of authorship including patent rights and other industrial property rights, trade marks, designs, trade or business names, domain names, copyright
and moral rights, database rights, topography rights, rights in know-how, trade secrets, rights of confidence and any other intellectual property rights or right of a similar nature anywhere in the world, whether arising by operation of law or otherwise, registered or unregistered, now known or hereafter invented and including applications for such rights and all extensions, renewals and reversions of such rights
International Monitoring means Monitoring Services from Northern Irish and non UK publications and media outlets
Managed Radar means a Service under which Gorkana will provide set up and ongoing maintenance of the Client’s Social Media Service
Media Analysis Report means any report provided by Gorkana as part of the deliverable of the Analysis Services (applicable if Analysis Services have been selected in the Order Confirmation and Media Analysis Report included within Schedule 1) ,whether in documentary or electronic form
Media Database means Gorkana’s proprietary database combining the Gorkana Data and Gorkana’s press release distribution tool, accessible by means of the Gorkana Websites
Media List means a media list maintained and monitored by Gorkana, an updated copy of which is available at www.gorkana.com, that serves as a guide to the print publications, broadcast stations, programmes, newswires, internet sources and/or other media monitored by Gorkana
Media Request(s) means a service of requests from journalists for case studies, expert comment, competition prizes, interviewees or products sent to Gorkana from journalists for distribution on a daily basis which includes tailored sector based email alerts
Mentions means the WebPages or sections of WebPages that are found as a result of Queries set up on Social Media Services
Permitted User means an individual employee or third party contractor of the Client who is authorised in writing by Gorkana and the Client to receive or access the Services
Query / Queries means a word or phrase tracked for Mentions in Social Media Services
Query-based subscription means a Service where a Client can subscribe to a defined number of Queries and where the Mentions are subject only to a Fair Usage Limit
Renewal Term shall have the meaning set out in clause 2.1
Rights Restricted Material means third party material and/or content in respect of which Gorkana does not own or has not been granted the necessary or relevant rights, permissions or licenses for use pursuant to this Agreement
Services means the services to be provided by Gorkana under this Agreement as selected in the Order Confirmation and as more particularly described in Schedule 1;
Social Media means user generated content shared online through multiple channels including Twitter, blogs, video sharing sites, forums and message boards
Social Media Services means the tracking of Mentions in Social Media through the provision of a self service dashboard platform on mygorkana.com in accordance with the Client’s requirements set out in the Order Confirmation or otherwise agreed in writing
Streaming Broadcast means the broadcast Cuttings delivery that allows the consumption of video or audio content by the client
Territory means the United Kingdom
Volume Band means the agreed maximum number of Cuttings per month for the Monitoring Services or the Analysis Services as set out in the Order Confirmation (applicable if Monitoring Services and/or Analysis Services have been selected within the Order Confirmation).
2.1 This Agreement shall commence on the Commencement Date and continue for the Initial Term and will renew for subsequent one (1) year periods (each a “Renewal Term” and together with the Initial Term, the “Term”) unless either party provides written notice to the other party at least thirty (30) days prior to the expiration of the then-current Initial Term or subsequent Renewal Term. Gorkana will send the Client a renewal notice, at least two (2) months in advance of the end of the Initial or Renewal Term.2.2 Without prejudice to Gorkana’s rights pursuant to clauses 5.7 to 5.8 (inclusive), if Gorkana wishes to vary or amend any contractual terms or Charges in this Agreement, it shall send to the Client, at least two (2) months in advance of the end of the Initial or Renewal Term, a written notice for the subsequent Renewal Term containing any variation in contractual terms or charges (a “Revision“), as part of or in addition to the renewal notice referenced in clause 2.1. The Client may reject the terms of any Revision and terminate this Agreement in writing provided it delivers notice of such termination to Gorkana at least thirty (30) days prior to the expiration of the then-current Initial Term or subsequent Renewal Term. If the Client accepts the terms of the Revision or does not respond to Gorkana within the foregoing time period (which shall constitute deemed acceptance), then this Agreement shall renew for a period of one (1) year on the revised terms contained in the Revision.
3. SUPPLY OF THE SERVICES
3.1 Gorkana shall provide the Services from the Commencement Date in accordance with this Agreement. Gorkana shall not be considered to be in breach of any of its obligations under this Agreement to the extent that performance of its obligations is prevented or delayed by any act or omission of Client nor shall Gorkana be liable for any losses sustained or incurred by the Client that arise from (a) such prevention or delay, (b) the Client’s fraud or negligence, or (c) any Input Material or instructions provided by the Client which are incomplete, incorrect, inaccurate, illegible, out of sequence or in the wrong form.
Without prejudice to the generality of the foregoing, the Client agrees and acknowledges that in the event that the Client fails to provide or delays in providing Gorkana with access to such data, information and/or materials necessary for the performance of Gorkana’s obligations pursuant to this Agreement, any applicable timescales to be achieved by Gorkana pursuant to the terms of this Agreement will be extended by such period as is reasonable and commensurate to the failure or delay caused by the Client.
3.2 Gorkana shall be entitled to assume that individuals employed by the Client have the necessary expertise and full authority to contractually bind the Client, request and approve changes or additions to the Services or this Agreement and otherwise act on Client’s behalf in relation to the Services, unless advised in writing to the contrary by the Client.
3.3 Gorkana will offer such reasonable support and training to the Client as necessary for Client to comprehend and use the Services effectively but reserves the right to charge for any further support and training.
3.4 If additional charges apply under both clause 3.2 and 3.3, Gorkana shall not be required to carry out the change to the Services or additional training and support until the Client and Gorkana have agreed the additional charges in writing.
4. CLIENT OBLIGATIONS
4.1 The Client shall:
4.1.1 Co-operate with Gorkana in all matters relating to the Services;provide, in a timely manner, the Client Content and such other material, information and data as Gorkana may reasonably require to perform its obligations under this Agreement, and ensure that it is accurate in all material respects.
4.2 Neither party shall, without the prior written consent of the other party, at any time from the date of this agreement to the expiry of one (1) year after the termination of this Agreement, solicit or entice away from the other party or employ or attempt to employ any person who is, or has been, engaged as an employee or consultant of the other party, other than as a result of a general advertising or other general recruitment campaign not specifically targeted at the other party’s employees.
4.3 The Client is prohibited from making any permanent copy of any software used in the delivery of the Services or reverse engineering or decompiling any such software, or making derivative works incorporating any of the elements of it, or modifying or adapting it in any way, or extracting or re-utilising any data, save as is provided for in this Agreement.
5. CHARGES
5.1 In consideration of Gorkana providing the Services, the Client shall pay to Gorkana the Charges as specified in the Order Confirmation, and any additional sums that are agreed in writing between Gorkana and the Client for the provision of the Services.
5.2 Where the Client requests that the Services are provided to and/or invoiced to a third party, the Client shall remain liable for the payment of any Charges that relate to these Services.
5.3 All charges quoted to the Client for the provision of the Services are exclusive of any value added tax or applicable local sales tax for which the Client shall be additionally liable at the applicable rate from time to time.
5.4 Unless otherwise agreed, all fees due under the Agreement shall be made by the Client in pounds sterling and the Client shall be liable for any exchange rate fluctuations and currency conversion or other banking charges.
5.5 The Charges shall be paid by the Client within thirty (30) days of the date of Gorkana’s invoice. If payment is not made on the due date, Gorkana shall be entitled, without limiting any other rights it may have, to charge interest on the outstanding amount (both before and after any judgement) at the rate of four per cent (4%) above the base rate of Barclays plc from the due date until the outstanding amount is paid in full.
5.6 Gorkana shall have the right to vary all Charges pursuant to clause 2.2.
5.7 Those aspects of the Services with charges based on Volume Bands of Cuttings will be specified in the Order Confirmation. These charges will be maintained by Gorkana for the duration of the Initial Term or Renewal Term subject to the average monthly volume of Cuttings not exceeding the relevant Volume Band set out in the Order Confirmation.
If (a) the average volume of Cuttings during any consecutive three (3) month period of the Term exceeds the applicable Volume Band or (b) the Client requests a change to the Services that will result in the monthly volume of Cuttings averaging above the Volume Band, then the parties will, acting in good faith, negotiate a revised Volume Band and Charges to apply through to the end of the current Initial or Renewal Term. If the parties are unable to agree a revised Volume Band and Charges, Gorkana may either (a) restrict the Services to bring the Cutting volumes within the Volume Band or (b) terminate this Agreement, upon written notice to the Client.
If in any month during the Term, the Client receives or is likely to receive an Excessive Volume of Cuttings, then Gorkana shall have the right, upon notification to the Client, to either (a) restrict the Services to bring the Cutting volumes within the applicable Volume Band or (b) increase the Charges for that month of Excessive Volume to include an Excessive Volume Charge.
5.8 Notwithstanding charges for Monitoring or Analysis Services can be based on Volume Bands of Cuttings, certain types of Cuttings will be charged in arrears on a variable price basis based on actual volume. These include but are not limited to Streaming Broadcast and International Monitoring Services sourced by Gorkana from third party suppliers. Any variable price charged Cuttings will be set out in the Order Confirmation.
6. INTELLECTUAL PROPERTY RIGHTS
6.1 All Intellectual Property Rights belonging to a party prior to the signing of this Agreement will remain vested in that party. Gorkana will own all rights (including all Intellectual Property Rights) in the Gorkana Content. The Client will own all rights (including all Intellectual Property Rights) in the Client Content.
6.2 Nothing in this Agreement shall operate to transfer any Intellectual Property Rights from Gorkana to the Client.
6.3 Subject to the Services selected in the Order Confirmation and any restrictions related thereto, Gorkana hereby grants to the Client during the Term and in the Territory a non-exclusive, non-transferable licence to use such of the Gorkana Content for the Client’s internal business use in the normal and proper course of its business as is strictly necessary to receive the benefit of the Services selected in the Order Confirmation and as more particularly described in Schedule 1.
6.4 The Client may print a reasonable number of extracts from the Services in hard copy solely for internal business purpose provided any and all copyright and proprietary notices are kept intact. The Client may not otherwise copy, alter, vary or modify or transfer its rights to use the Services to any third party unless Gorkana has given its prior written consent.
6.5 The Client agrees that it shall not at any time pass, whether directly or indirectly, to any competitor or potential competitor of Gorkana the Gorkana Content or any other information concerning Gorkana, the Services or its system or methodologies.
6.6 The Client shall promptly notify Gorkana in the event that it becomes aware of any unauthorised use of the Services or any actual or suspected infringement of any of Gorkana’s Intellectual Property Rights.
6.7 Gorkana reserves the right to suspend provision of the Services and the Client’s access to the Gorkana Content or any of them on becoming aware of any legal regulation, claim, or restriction which requires it to do so or which may expose it to any liability or claim if it does not do so. In this situation, Gorkana shall inform the Client in writing of such suspension of the Client’s access. If such suspension continues for more than thirty (30) days, the Client shall be entitled to terminate this Agreement forthwith by notice in writing to Gorkana. Gorkana shall, in the event of termination under this clause and provided the Client is not at fault, without prejudice to any of the Client’s other rights and remedies arising under this Agreement refund to the Client any Charges paid on a pro-rata basis from the date on which the Services are suspended up to and including the date on which termination of this Agreement takes effect or the Service recommences (as the case may be).
7. ACCESS RIGHTS
7.1 Access to the Services and the Gorkana Websites is limited to Permitted Users and those specific systems and time periods authorised by Gorkana. Use of the Services and the Gorkana Websites during other time periods or by individuals not authorised by Gorkana is expressly prohibited.
7.2 Permitted Users accessing the Services and the Gorkana Websites externally shall do so only through secured systems. Gorkana will allocate each Permitted User with a unique username and password.
In the event that any Permitted User with access to any of the Gorkana Websites ceases to be employed by the Client, or if the Client wishes to replace any individual, it shall notify Gorkana in writing and may nominate an alternative person to become a Permitted User. On receipt of such notice, Gorkana shall immediately cancel the relevant usernames and passwords and (where a new person is nominated by the Client) shall issue to the new person a fresh username and password to allow that person to gain access to the Service.
7.3 The Client shall use all commercial efforts to scan any Client Content it provides to Gorkana for any viruses, Trojan horses, disabling code, malware or similar hostile items. The Client agrees that, in the event a virus or similar item is found to have been introduced by the Client, the Client shall assist Gorkana (at the Client’s sole expense) in eliminating them, mitigating their effects and restoring the affected systems to their prior state.
8. REPRESENTATIONS AND WARRANTIES
8.1 Each party warrants, represents and undertakes to the other that:
8.1.1 it has full power and authority to enter into this Agreement;
8.1.2 it has not entered into (and will not enter into) any agreement with any third party which might conflict with the terms of this Agreement;
8.1.3 it is able to grant the rights granted or purported to be granted under the Agreement and is able fully to perform its obligations hereunder;
8.2 Gorkana represents and warrants that:
8.2.1 it shall use reasonable skill and care in the performance of its obligations under this Agreement.
8.2.2 it shall use commercially reasonable efforts to maximise the functioning time of the Gorkana Websites, and in the event of any downtime arising will strive to restore operation as soon as reasonably practicable, but any warranty, term or condition in respect of the content or operation of the Gorkana Websites is hereby specifically excluded.
8.3 The warranties expressly set out in this Agreement are the entire and exclusive warranties made by Gorkana to the Client with respect to the Services and Gorkana Content.
Without prejudice to Gorkana’s other obligations under this Agreement, to the maximum extent permitted by governing law, all other warranties and representations in respect of the Services and Gorkana Content, whether express or implied, are excluded, and, in particular, Gorkana does not warrant that the operation of the Services and Gorkana Content will be uninterrupted or error-free; or that the Services and Gorkana Content are of satisfactory quality, fit for any particular purpose, accurate or complete; or that use by the Client of the Services and Gorkana Content with any other software unless expressly authorised by Gorkana, or with inappropriate hardware, will not cause any disturbance to the Services and Gorkana Content or to such other software.
8.4 The Client represents and warrants that:
8.4.1 the Client Content including all information it provides upon registration, or at any time, about itself, its affiliates and users, is true, accurate, current and complete and that it will ensure that this information is kept accurate and up to date at all times.
Gorkana may alter the Permitted User passwords from time to time upon reasonable prior written notice of the fact of alteration and the new password being given to the Client or with immediate effect if Gorkana reasonably believes a password is no longer secure;
8.4.2 it shall not upload, post, publish, transmit or transfer to any of the Gorkana Websites any Input Material, software, files or other material which: (a) is misleading, inaccurate, defamatory, illegal, obscene, threatening, deceptive, abusive, profane or offensive (or is likely to be perceived as such); (b) is in breach of any Intellectual Property Rights, or damaging to data, software or the performance of the Media Database or other Services, or adversely affects the performance or availability of the Media Database or other Services; (c) is in breach of any applicable law or regulation; (d) contains any unauthorised advertising, promotion or solicitation; or (e) materially misrepresents facts which may be damaging or injurious to Gorkana or its clients or users. Gorkana reserves the right to remove any such software, files or material which would contravene these prohibitions;
8.4.3 it shall not allow any person other than the Permitted User access to any of Gorkana’s password restricted online platforms, password, or user ID or account given to the Client by Gorkana or assist any other person to do so;
8.4.4 it shall not reproduce, copy (including electronically), distribute, display, sell, publish, broadcast, circulate, delivery or transmit any content or material which Gorkana has identified as Rights Restricted Material either internally or to any third party; and
8.4.5 it shall be responsible for ensuring that its systems are capable of accessing the Services. Accordingly, Gorkana shall not be responsible for any failure of the Client to access any element of the Services due to a failure of the Client’s systems or computer equipment, or third party systems and / or equipment employed by the Client.
9 LIMITATION OF LIABILITY
9.1 Nothing in this Clause 9 shall limit either party’s liability for death or personal injury resulting from such party’s negligence or for fraud.
9.2 Gorkana shall only be liable to the Client for direct loss caused by the negligence, wilful misconduct or wilful default of Gorkana or its employees, officers and/or directors.
9.3 Neither party shall be liable, in contract, tort (including negligence) or for breach of statutory duty or in any other way for:
9.3.1 any loss arising from or in connection with loss of profits, contracts or business or failure to realise anticipated savings; or
9.3.2 any loss of goodwill or reputation; or
9.3.3 any indirect or consequential losses,suffered or incurred by the other party arising out of or in connection with any matter under this Agreement.
9.4 The entire aggregate liability of Gorkana to the Client under or in connection with the Agreement, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise in respect of all claims in any consecutive 12 month period, shall not exceed the amount of the Charges paid by the Client in that period.
10. ASSIGNMENT/SUBCONTRACTING
10.1 Neither party shall without the prior written consent of the other party, assign at law or in equity (including by way of a charge or declaration of trust), sub-license or deal in any other manner with this Agreement or any rights under this Agreement, or sub-contract any or all of its obligations under it or purport to do any of the same provided that the other party’s consent need not be obtained in relation to the assignment of this Agreement in connection with a merger, corporate reorganisation, or sale of all or substantially all of its assets or stock as long as the assignee agrees in writing to be bound by this Agreement.
10.2 Nothing in this Agreement shall prevent Gorkana from carrying out the Services or any similar services for any other person, firm or company.
11. TERMINATION
11.1 Either Gorkana or the Client shall be entitled forthwith to terminate this Agreement by written notice to the other if:
11.1.1 the other party commits any material breach of any of the provisions of this Agreement, and in the case of a breach capable of remedy, fails to remedy the same within thirty (30) days after receipt of a written notice giving full particulars of the breach and requiring it to be remedied; or
11.1.2 an encumbrance takes possession or a receiver is appointed over any of the property or assets of that other party; or
11.1.3 that other party makes any voluntary arrangement with its creditors or becomes subject to an administration order; or
11.1.4 that other party goes into liquidation (except for the purposes of amalgamation or reconstruction);or
11.1.5 Gorkana will be entitled to terminate if any invoice remains unpaid for forty five (45) days after it has been sent to the Client.
11.2 Sections 5, 6, 7, 8, 9, 10, 11, 12, 17 and 19 will survive the termination of this Agreement for any reason. The termination of this Agreement will not affect any claims or remedies either party may have for breaches of this Agreement that occurred before its termination. Upon any termination of this Agreement: (a) any licences or rights granted by Gorkana to Client shall immediately cease; (b) all Permitted User accounts will be rendered void; (c) Client will cease using the Services and the Gorkana Websites and will immediately pay Gorkana any Charges due and payable to Gorkana under or in connection with this Agreement; (d) at the request of Gorkana, Client will return or destroy all copies of any Gorkana Content and any other information or materials owned or licensed by Gorkana and provided to Client for use or otherwise used by Client pursuant to this Agreement.
12. CONFIDENTIALITY
12.1 The parties shall each at all times during the continuance of this Agreement and after its termination:
12.1.1 use all reasonable endeavours to keep all Confidential Information confidential and not disclose any Confidential Information to any other person except to its officers, employees, representatives and professional advisers and those of members of its group of companies from time to time as strictly necessary to comply with its obligations pursuant to this Agreement, or as required by law, regulation or request of any governmental or regulatory authority, copyright holder or licensing body;
12.1.2 not use any Confidential Information for any purpose other than the performance of its obligations under this Agreement.
12.2 Upon receipt of a written request, the parties undertake to return immediately to the other all copies of the Confidential Information and to expunge all Confidential Information from any device containing it.
12.3 Notwithstanding clause 12.1 above, either party shall be entitled to disclose Confidential Information of the other:
12.3.1 to their respective insurers or legal advisors;
12.3.2 to a third party to the extent that this is required by any court of competent jurisdiction, or by a governmental or regulatory authority,
12.3.3 provided that in the case of sub-clause 12.3.2 where reasonably practicable (and without breaching any legal or regulatory requirement) not less than two (2) business days’ notice in writing is first given to the other party.
13. FORCE MAJEURE
13.1 Neither Gorkana nor the Client shall be deemed to be in breach of this Agreement or otherwise be liable to the other by reason of any delay in performance or non-performance by any of its obligations hereunder to the extent that such delay or non-performance is due to any Force Majeure, and the time for performance of that obligation shall be extended accordingly.
13.2 In the event that such delay or non-performance continues for a period of fourteen (14) days, the Client shall be entitled to terminate the Agreement forthwith by written notice to Gorkana.
14. NOTICES
14.1 All notices to be sent from one party to the other in connection with the Agreement shall be delivered by hand or sent by post to the address of the relevant party or such other address as may be notified by either party to the other from time to time.
The address for Gorkana is as follows: Gorkana, 5 Churchill Place, Canary Wharf, London, E14 5HU.
14.2 Notices sent by post shall be deemed to have been received two days after posting.
14.3 Gorkana shall also accept notice by email to Client’s dedicated account director, account manager or Client service executive provided that a read receipt is sent by Gorkana.
15. WAIVER
15.1 No failure or delay by either party in exercising any of its rights under these Conditions shall be deemed to be a waiver of that right, and no waiver by either party of any breach of these Conditions by the other shall be considered as a waiver of any subsequent breach of the same or any other provision.
16. ENTIRE AGREEMENT
16.1 This Agreement constitutes the entire agreement between the parties, supersede any previous agreement or understanding. In the event of any subsequent terms agreed between the parties which appear to conflict with this Agreement then this Agreement shall take precedence unless the subsequent Agreement expressly varies this Agreement.
17. REMEDY
17.1 The parties acknowledge and agree that (a) Confidential Information, the Gorkana Content and the Services contain valuable trade secrets and proprietary information; (b) any actual or threatened use of the foregoing in violation of this Agreement, or any actual or threatened breach of Section 8 by either party, will constitute immediate, irreparable harm to the non-breaching party for which monetary damages would be an inadequate remedy; and (c) the non-breaching party will be entitled to injunctive relief as an appropriate remedy to any breach and threatened use.
18. NO PARTNERSHIP
Nothing in this Agreement shall be construed as constituting a partnership, joint venture, association, or other co-operative entity or agency relationship between the parties and neither party shall have any authority to act on behalf of the other nor to bind the other in any way, except as expressly permitted by the provisions of this Agreement.
19. GOVERNING LAW AND JURISDICTION
19.1 The Agreement shall be construed in accordance with and governed by English Law and shall be subject to the exclusive jurisdiction of the English Courts.
SCHEDULE 1 – SERVICES
DATABASE SERVICES
In addition to the terms and conditions set out in the Standard Terms and Conditions, the Client shall comply with the following specific terms and restrictions with respect to any use of the Database Services:
1. Client Obligations
The Client shall comply with all reasonable instructions as to the use of the Database Licensed Materials which may be given by Gorkana to the Client from time to time in writing or posted on the Media Database from time to time, and shall comply with all applicable laws in exercising its rights under this Agreement.
2. General
Gorkana reserves the right to revise or amend the format and/or content of the Database Licensed Materials from time to time but shall, if possible, provide the Client with advance written notice of any such changes.
If Gorkana does so amend the format and/or content of the Database Licensed Materials, it shall use commercially reasonable efforts to ensure that there is no adverse change in the content, quality or performance of the Database Licensed Materials.
MONITORING SERVICES
In addition to any terms and conditions set out in the Standard Terms and Conditions, the Client shall comply with the following specific terms and restrictions with respect to any use of the Monitoring Services:
1. Volume Bands
1.1 Where the Monitoring Services charges are fixed based on agreed Volume Bands, credits for irrelevant Cuttings will not be given. However, the number of any irrelevant Cuttings will be taken into account when reviewing average volumes as part of Section 3 of these Terms and Conditions provided that any Cuttings are returned to Gorkana within seven (7) days of their original provision where the reason for the return of the Cutting is a genuine fault on the part of Gorkana.
2. General
2.1 Where Monitoring Services are charged on variable basis, Gorkana will credit the Client in respect of such of the charges as may be due on any Cuttings that are returned to Gorkana within seven (7) days of its original provision where the reason for the return of the cutting is a genuine fault on the part of Gorkana;
2.2. Gorkana reserves the right without notice to not supply Cuttings or other information or material which it reasonably considers unlawful, in breach of applicable regulations, obscene, defamatory or breaches the Intellectual Property Rights or other rights of third parties.
2.3. Whilst Gorkana shall use its reasonable endeavours to accurately maintain the Media List, it reserves the right to vary the media that are covered by the Services at any time and without notice.
2.4 Whilst Gorkana will use its reasonable endeavours to provide the Client with a reasonably acceptable level of accuracy and timeliness in performing the Services, and will apply such time, attention, resources, trained personnel and skill as may be reasonably necessary or appropriate for the due and proper performance of the Services hereunder, the Client acknowledges and accepts that, having due regard to the manner in which the Media List is monitored and the Cuttings are collected, and the volume of material from which the Cuttings are derived, and where applicable Gorkana is relying upon third party suppliers when performing the Services, no warranty, guarantee or representation is made by Gorkana that the Monitoring Services will be complete, accurate and/or fit for the purpose;
2.5. Gorkana is licensed by the Copyright Bodies including the NLA, the CLA, and other copyright owners or publishers (including the Financial Times) to scan print publications and/or digital content, electronically copy and distribute articles found. The Copyright Bodies reserves the right to prevent Gorkana from distributing Rights Restricted Material to Clients. The Client acknowledges that Gorkana is unable to supply such material to the Client. Unless licensed by the relevant Copyright Body or copyright owner the Client shall not:
2.5.1 further reproduce, copy (including electronically), distribute, display, sell, publish, broadcast, circulate, delivery or transmit Copies (whether in electronic or hard copy) either internally or to any third party (with the exception of licensed Public Relations Consultancies and/or Trade/Professional Associations) so as to infringe the intellectual property rights vested in the relevant Copyright Body.
2.5.2 use EFax software and/or equipment to receive Copies.
2.6 The Client will destroy all Copies in respect of which the Client has been notified directly or indirectly by the relevant Copyright Body as potentially or actually causing legal liability to third parties. The Client will treat such notices as confidential.
2.7 To the extent that the Client requires an electronic service then the Client must:
2.7.1 limit the access to Copies for its own use to Permitted Users only;
2.7.2 obtain a licence issued by the relevant Copyright Body, including but limited to:
(i) the NLA if the service relates to print or digital content for which the NLA has responsibility, and produce such to Gorkana on demand unless the Client only has one Permitted User who accesses the service.
(ii) the CLA if the service relates to print or digital content for which the CLA has responsibility, where client accesses any individual digital Cutting more than once or make more than a single copy printed out (whether by the access of multiple users or one user making multiple accesses or otherwise);
2.7.3 not remove, conceal or alter any copyright notices contained on the Copies as delivered;
2.7.4 not store Cuttings in electronic form as part of any library or archive of information;
2.7.5 provide a statement at Gorkana’s request setting out the number of Permitted Users and confirming that Cuttings supplied have not been dealt with or used other than by Permitted Users.
2.8 The Client hereby agrees and acknowledges that Gorkana is required under the terms of the licences that it has signed with the NLA, the CLA or other copyright owner or Publisher (including the Financial Times) to provide the relevant organisation with the contact details and certain additional information in respect of any Client to whom the Monitoring Services are supplied electronically.
Accordingly, the Client hereby consents to the provision by Gorkana to the relevant Copyright Body or other copyright owner or publisher the Client’s name, address and any other necessary information including, but not limited to, the date on which delivery started, a description of the service (electronic or hard copy), and details of Cuttings supplied.
In the case of electronic delivery the average number of Permitted Users and the number of times each cutting was viewed by Permitted Users will also be reported. The Copyright Bodies or applicable copyright owner or publisher may contact the Client directly using the information supplied in these circumstances.
2.9. All Cuttings, transcripts, recorded material, article summaries and translations are supplied for the private use of the Client and shall not be reproduced, circulated, resold or copied (whether in whole or in part) without the Client obtaining the prior written approval where relevant of the copyright holder or broadcast authority (as the case may be).
2.10. For the avoidance of doubt, Gorkana shall not be responsible for obtaining any of the consents for the Client referred to in this section.
2.11. Gorkana shall not be liable for any claims or proceedings brought against the Client by any publisher of copyrighted material or by any other copyright holder that results from the Client’s use of delivered Cuttings without the consent of the relevant copyright holder (where required), or from any other breach of copyright by the Client
2.12. Due to the terms of licences with Copyright Bodies pursuant to which Gorkana is able to provide the Monitoring Services, Gorkana shall not be obliged to store any electronic copy of a Cutting without subscription of My Archive after 28 days from publication and may earlier withdraw any Cutting previously available if required to do so by a Copyright Body.
ANALYSIS SERVICES
In addition to the terms and conditions set out in the Standard Terms and Conditions, the Client shall comply with the following specific terms and restrictions with respect to any use of the Analysis Services:
Client Obligations
1.1 Where the Input Material for Analysis Services are not provided by Gorkana, the Client shall at its own expense supply Gorkana with the Input Material within sufficient time to enable Gorkana to provide Analysis Services in accordance with these Terms and Conditions.
The Client shall be responsible for the accuracy of all Input Material provided by itself or on its behalf by third parties apart from Gorkana.
The Client may request the return of the Input Material. Otherwise, after delivery of the Media Analysis Report Gorkana shall be free to dispose of the Input Material without any liability to the Client.
1.2 Each time that the Client uses the Media Analysis Report, or any part of it, the following acknowledgement shall be added: “Source: ©Gorkana [year in which media analysis report generated]”.
SOCIAL MEDIA SERVICES
In addition to the terms and conditions set out in the Standard Terms and Conditions, the Client shall comply with the following specific terms and restrictions with respect to any use of the Social Media Services:
1. General
1.1. Clients on a Mentions-based Subscription will be sent email notifications as they approach their Mention limit. If they breach the limit Gorkana will contact them to ask them whether they would like to upgrade their account or reduce their Queries.
1.2 The Client may use all data received through proper use of the Social Media Service for its own business purposes, and for no other purpose.
The Client agrees not to use the Social Media Service for any purpose for which it is not authorised, or for any illegal, immoral or offensive purpose, or for any purpose which infringes a third party’s rights, and not to use the Service to communicate any material which is obscene, defamatory, offensive, abusive, illegal, in breach of a third party’s rights or otherwise unacceptable to Gorkana, or for spamming, hacking or any other such activities.
1.3. Where a Query in a Query-based subscription is deemed by Gorkana to track multiple large brands or is a Query that in any other way is so large that it degrades the performance of the Service for the Client or for other customers of Gorkana, then Gorkana reserves the right to provide only a sample of Mentions for this Query.
Examples of Queries for which Gorkana may exercise this right include, but are not limited to, tracking all social media websites for common words like “the” or “lol” or trying to track all European airline companies in a single Query. Where Gorkana has applied this Fair Usage Policy it will make best efforts to contact you first to inform you and discuss ways in which Gorkana can track all Mentions.
GDPR CUSTOMER ADDENDUM
1. VARIATION
1.1 The parties agree that the Agreement (as defined below) shall be varied to include this Addendum.
1.2 In the event of any conflict between the provisions of the Agreement and the provisions of this Addendum, the provisions of this Addendum shall take precedence.
2 DEFINITIONS AND INTERPRETATION
2.1 Save as otherwise defined below, defined terms in this Addendum shall have the meaning given to them in the Agreement.
2.2 In this Addendum, the following terms shall have the meanings set out below:
2.2.1 “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity, and “control” means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity;
2.2.2 “Agreement” means any agreement entered into between Customer and Company in relation to the provision of the Services;
2.2.3 “Applicable Laws” means the laws and regulations of any Member State of the European Union or the laws of the European Union applicable to the parties and any other applicable law, including but not limited to the Data Protection Legislation and the Privacy Legislation;
2.2.4 “Company Data” has the meaning given to it in the Agreement, if any;
2.2.5 “Company Personal Data” means any Personal Data included in Gorkana Data or Company Data (as applicable), as are provided to the Customer under the Agreement and as further specified in Part I of Annex I to this Addendum;
2.2.6 “Customer Personal Data” means any Personal Data included in Client Data or Customer Data (as applicable), as are provided to the Company under the Agreement and as further specified in Part II of Annex I to this Addendum;
2.2.7 “Data Protection Legislation” means (i) the EU Data Protection Directive (95/46/EC) as transposed into domestic legislation of each Member State as amended, replaced or superseded from time to time including by the GDPR and laws implementing or supplementing the GDPR; and (ii) to the extent applicable, the data protection laws of any other country, including the United Kingdom if and when the United Kingdom ceases to be a Member State;
2.2.8 “Data Controller” has the meaning set out in the GDPR;
2.2.9 “Data Processor” has the meaning set out in the GDPR;
2.2.10 “Data Subject” has the meaning set out in the GDPR;
2.2.11 “e-Privacy Legislation” means (i) the EU Privacy and Electronic Communications Directive (2002/58/EC) as transposed into domestic legislation of each Member State as amended, replaced or superseded from time to time; and (ii) to the extent applicable, the privacy laws of any other country, including the United Kingdom if and when the United Kingdom ceases to be a Member State;
2.2.12 “GDPR” means General Data Protection Regulation ((EU) 2016/679);
2.2.13 “Joint Controller” has the meaning set out in the GDPR;
2.2.14 “Personal Data” has the meaning set out in the GDPR;
2.2.15 “Personal Data Breach” has the meaning set out in the GDPR;
2.2.16 “Restricted Transfer” means a transfer of Personal Data from the Data Controller to the Data Processor, or from the Data Processor to a Sub-Processor, or from the Data Controller to another Data Controller, where such transfer would, in the absence of Standard Contractual Clauses, be prohibited by Data Protection Legislation;
2.2.17 “Services” means the on-demand relationship management platform and services that are subscribed to by Customer, as further described in the Agreement;
2.2.18 “Standard Controller to Controller Contractual Clauses” means the standard contractual clauses at Schedule 2 to this Addendum;
2.2.19 “Standard Controller to Processor Contractual Clauses” means the standard contractual clauses at Schedule 1 to this Addendum;
2.2.20 “Sub-processor” means any person appointed by or on behalf of the Data Processor to process Personal Data on behalf of the Data Controller in connection with the Agreement.
3 DATA PROTECTION – GENERAL
3.1 Both parties will comply with all requirements of the Data Protection Legislation applicable to their role as Data Processor or Data Controller, as applicable. This Addendum is in addition to, and does not relieve, remove or replace, a party’s obligations under the Data Protection Legislation.
4 CUSTOMER PERSONAL DATA
4.1 The parties acknowledge that for the purposes of the Data Protection Legislation and this Addendum the Customer is the Data Controller and the Company is the Data Processor in respect of Customer Personal Data.
4.2 The obligations contained in this Addendum shall apply to any Affiliate of the Company who processes data under the Agreement.
4.3 Annex I sets out the scope, nature and purpose of processing by the Company, the duration of the processing and the types of Personal Data and categories of Data Subject.
4.4 Without prejudice to the generality of clause 4.1, the Customer will ensure that it is lawful to enable the transfer of the Customer Personal Data to the Company for the duration and for the purposes of the Agreement.
4.5 Without prejudice to the generality of clause 4.1, the Company shall, in relation to any Customer Personal Data processed in connection with the performance by the Company of its rights and obligations under the Agreement:
4.5.1 process that Customer Personal Data only on the written instructions of Customer, including but not limited to any instructions contained in any Agreement unless the Company is obliged to process such Personal Data by the Applicable Laws. Where the Company is relying on the Applicable Laws as the basis for processing Customer Personal Data, the Company shall, insofar as is permissible under such Applicable laws, promptly notify the Customer of its obligations before performing the processing required by the Applicable Laws;
4.5.2 ensure that it has in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of Customer Personal Data and against accidental loss or destruction of, or damage to, Customer Personal Data, such as are appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Customer Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Customer Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it). The Company shall make available details of these technical and organisation measures on its website;
4.5.3 take all reasonable steps to ensure the reliability of all personnel who have access to and/or process Customer Personal Data and shall ensure that all such personnel are obliged to keep the Customer Personal Data confidential and that access to Personal Data is limited to those individuals who need to have access to Customer Personal Data for the purposes of the Agreement and to comply with Applicable Laws;
4.5.4 be bound by the Standard Controller to Processor Contractual Clauses, which are hereby incorporated into this Addendum, in respect of any Restricted Transfer of Customer Personal Data from the Customer to the Company. Such Standard Controller to Processor Contractual Clauses shall come into effect upon the commencement of the relevant Restricted Transfer;
4.5.5 shall not otherwise enter into any Restricted Transfer unless the prior written consent of the Customer has been obtained and the Standard Controller to Processor Contractual Clauses are used in relation to such transfer;
4.5.6 notify the Customer without undue delay on becoming aware of a Personal Data Breach involving Customer Personal Data or upon receipt of a request or complaint from a Data Subject involving Customer Personal Data;
4.5.7 assist the Customer, at the Customer’s cost (save where such assistance is required as a result of a breach by the Company of its obligations under this Addendum and/or the Agreement in which case such costs will be borne by the Company), in responding to any request from a Data Subject (but shall not respond to any such request without the Customer’s prior written consent, unless otherwise required by the Data Protection Legislation)and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators; and
4.5.8 within one month of termination of the Agreement, at the written direction of the Customer, delete or return Customer Personal Data and copies thereof to the Customer unless required by Applicable Law to store the Customer Personal Data.
4.6 The Company shall maintain complete and accurate records and information (“Records”) to demonstrate its compliance with this Addendum and will allow the Customer by its own personnel or by an independent auditor, who executes Customer’s standard non-disclosure agreement, to access all such Records during the term of the Agreement and for one year after termination provided:
4.6.1 any such access for the purposes of auditing or otherwise inspecting the Records shall be on not less than thirty (30) days written notice at any time during normal business hours and not more than once during any twelve (12) month period unless:
4.6.1.1 the Customer has reasonable grounds to suspect that a Personal Data Breach has occurred involving Customer Personal Data; or
4.6.1.2 the Customer is required or requested to carry out an audit by Data Protection Legislation or a regulatory authority responsible for the enforcement of Data Protection Legislation in any country; and
4.6.2 the Customer shall make (and shall ensure that any independent auditor makes) reasonable endeavours to avoid causing any damage, injury or disruption to the Company’s premises, equipment, personnel and business during the audit;
4.6.3 the Customer shall submit a detailed audit plan to the Company upon giving notice of an audit, setting out details of the proposed scope and duration of the audit, such audit plan to be agreed between the parties (acting reasonably);
4.6.4 if the scope of the requested audit has been addressed in an audit carried out by a recognised independent third party auditor within twelve (12) months of the Customer’s request, and the Company provides written confirmation that there have been no material changes in the controls and systems to be audited, the Customer agrees to accept that audit report in lieu of carrying out its own audit; and
4.6.5 the Customer shall bear the costs of the audit, save where the Company is found to be in breach of its obligations under this Addendum in which case the Company will bear the cost of the audit.
4.7 The Customer hereby consents to the Company appointing Sub-Processors in connection with the provision of the Services. The Company shall make available on its website a list of current Sub-Processors and shall notify the Customer via its website when a Sub-processor is replaced or added to this list. Upon notification, the Customer shall have 10 days to object to the appointment of the new Sub-processor. If the Customer objects on reasonable grounds, the Customer shall have the right to terminate the Agreement immediately on notice.
4.8 The Company confirms that it has entered or (as the case may be) will enter with any appointed Sub-Processor into a written agreement incorporating terms which are substantially similar to those set out in this Addendum. As between the Customer and the Company, the Company shall remain fully liable for all acts or omissions of any Sub-Processor appointed by it pursuant to clause 4.7.
4.9 The Company may, at any time on not less than 30 days’ notice, revise this Addendum by replacing it with any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme.
5 COMPANY PERSONAL DATA
5.1 The parties acknowledge that for the purposes of the Data Protection Legislation and this Addendum, the Company and the Customer are Joint Controllers in respect of Company Personal Data.
5.2 Without prejudice to the generality of clause 5.1, the Customer shall, in relation to any Company Personal Data processed in connection with the performance by the Customer of its rights and obligations under the Agreement:
5.2.1 process the Company Personal Data only in accordance with the provisions of the Agreement and this Addendum;
5.2.2 ensure that it has in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of Company Personal Data and against accidental loss or destruction of, or damage to, Company Personal Data, such as are appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Company Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Company Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it). The Customer shall make available details of these technical and organisation measures to Company upon Company’s request;
5.2.3 take all reasonable steps to ensure the reliability of all personnel who have access to and/or process Company Personal Data and shall ensure that all such personnel are obliged to keep the Company Personal Data confidential and that access to Company Personal Data is limited to those individuals who need to have access to Company Personal Data for the purposes of the Agreement and to comply with Applicable Laws;
5.2.4 be bound by the Standard Controller to Controller Contractual Clauses, which are hereby incorporated into this Addendum, in respect of any Restricted Transfer of Company Personal Data from the Company to the Customer. Such Controller to Controller Standard Contractual Clauses shall come into effect upon the commencement of the relevant Restricted Transfer;
5.2.5 notify the Company without undue delay on becoming aware of a Personal Data Breach involving Company Personal Data or upon receipt of a request or complaint from a Data Subject involving Company Personal Data;
5.2.6 assist the Company, at the Company’s cost (save where such assistance is required as a result of a breach by the Customer of its obligations under this Addendum and/or the Agreement in which case such costs will be borne by the Customer), in responding to any request from a Data Subject which relates to the Company’s processing of Company Personal Data (but shall not respond to any such request without the Company’s prior written consent, unless otherwise agreed between the parties or required by the Data Protection Legislation) and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
5.2.7 subject to clause 5.2.5, respond to any request or complaint from a Data Subject which relates to the Customer’s own use of Company Personal Data;
5.2.8 carry out any step reasonably required by Company in order to ensure its compliance with the Data Protection Legislation and/or the Agreement; and
5.2.9 upon termination of the Agreement, delete or return Company Personal Data in accordance with the Agreement, unless required by Applicable Law to store the Company Personal Data.
5.3 The parties agree that, in relation to any Company Personal Data, the Company shall
5.3.1 be responsible for providing any Data Subjects with any information required under the Data Protection Legislation; and
5.3.2 subject to the Customer complying with its obligations set out in clauses 5.2.5 and 5.2.6 above, be responsible for responding to any requests or complaints from Data Subjects which relate to the Company’s processing of Company Personal Data, unless otherwise agreed between the parties.
If and to the extent that Customer holds any Personal Data in relation to a Data Subject identified in Company Personal Data but where such Personal Data is not Company Personal Data (“Additional Data”), Customer will be responsible for compliance with all applicable Data Protection Legislation in respect of such Additional Data.
6 WARRANTIES AND INDEMNITIES
6.1 The parties warrant that they will comply with the obligations contained in this Addendum.
6.2 The Customer warrants that it will comply with all Applicable Laws in its use of the Services.
6.3 Each party hereby indemnifies and shall keep indemnified the other party against any and all losses, damages, liabilities, claims, penalties, fines, awards, costs and expenses (including reasonable legal fees) caused by any breach of the warranties contained in this Addendum.
6.4 The Company’s liability under the indemnity contained in clause 6.3 shall be subject to the limitation of liability contained in the Agreement.
6.5 In the event of a breach by the Customer of the warranty contained in clause 6.2, in addition to any other rights it may have under this Addendum or the Agreement, the Company shall be entitled to terminate the Agreement upon immediate notice.
6.6 Each party warrants that it has full power and authority to enter into this Addendum and the Company warrants that it has full power and authority to bind the data importer (as defined in the Standard Controller to Processor Contractual Clauses) to the terms of those clauses.
ANNEX I
PROCESSING, PERSONAL DATA AND DATA SUBJECTS
Part I: Company Data
| Nature and Purpose of processing | Customer may process Company Data as necessary to receive the Services and comply with its obligations under the Agreement. |
| Duration of the processing | Subject to clause 5.2.8, Customer may process Company Data for the duration of the Agreement, unless otherwise agreed by the parties. |
| Types of personal data | Name, title, email address, business phone number, mobile phone number, employer, social media handles |
| Categories of data subject | Individual media contacts including journalists and other media ‘influencers’, analysts, politicians, government officials or representatives |
Part II: Customer Data
| Nature and Purpose of processing | Company may process Customer Personal Data as necessary to perform the Services and comply with its obligations under the Agreement. |
| Duration of the processing | Subject to clause 4.5.8, Company may process Customer Data for the duration of the Agreement, unless otherwise agreed by the parties. |
| Types of personal data | Name, title, email address, business phone number, mobile phone number, social media handles |
| Categories of data subject | Customer’s users of the Company’s services; individual media, political, financial analyst, customer shareholder and advisor contacts provided by Customer |
SCHEDULE 1
STANDARD CONTROLLER TO PROCESSOR CONTRACTUAL CLAUSES
Standard Contractual Clauses (processors)
For the purposes of Article 26(2) of Directive 95/46/EC for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection
The data exporter is: the Customer
The data importer is: Cision US Inc., PR Newswire Association LLC or any other Company Affiliate which imports data under the Agreement
each a “party”; together “the parties”,
HAVE AGREED on the following Contractual Clauses (the Clauses) in order to adduce adequate safeguards with respect to the protection of privacy and fundamental rights and freedoms of individuals for the transfer by the data exporter to the data importer of the personal data specified in Appendix 1.
Background
The data exporter has entered into a data processing addendum (“DPA”) with the data importer. Pursuant to the terms of the DPA, it is contemplated that services provided by the data importer will involve the transfer of personal data to data importer. Data importer is located in a country not ensuring an adequate level of data protection. To ensure compliance with Directive 95/46/EC and applicable data protection law, the controller agrees to the provision of such Services, including the processing of personal data incidental thereto, subject to the data importer’s execution of, and compliance with, the terms of these Clauses.
Clause 1
Definitions
For the purposes of the Clauses:
(a) ‘personal data’, ‘special categories of data’, ‘process/processing’, ‘controller’, ‘processor’, ‘data subject’ and ‘supervisory authority’ shall have the same meaning as in Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data;
(b) ‘the data exporter’ means the controller who transfers the personal data;
(c) ‘the data importer’ means the processor who agrees to receive from the data exporter personal data intended for processing on his behalf after the transfer in accordance with his instructions and the terms of the Clauses and who is not subject to a third country’s system ensuring adequate protection within the meaning of Article 25(1) of Directive 95/46/EC;
(d) ‘the subprocessor’ means any processor engaged by the data importer or by any other subprocessor of the data importer who agrees to receive from the data importer or from any other subprocessor of the data importer personal data exclusively intended for processing activities to be carried out on behalf of the data exporter after the transfer in accordance with his instructions, the terms of the Clauses and the terms of the written subcontract;
(e) ‘the applicable data protection law’ means the legislation protecting the fundamental rights and freedoms of individuals and, in particular, their right to privacy with respect to the processing of personal data applicable to a data controller in the Member State in which the data exporter is established;
(f) ‘technical and organisational security measures’ means those measures aimed at protecting personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing.
Clause 2
Details of the transfer
The details of the transfer and in particular the special categories of personal data where applicable are specified in Appendix 1 which forms an integral part of the Clauses.
Clause 3
Third-party beneficiary clause
1. The data subject can enforce against the data exporter this Clause, Clause 4(b) to (i), Clause 5(a) to (e), and (g) to (j), Clause 6(1) and (2), Clause 7, Clause 8(2), and Clauses 9 to 12 as third-party beneficiary.
2. The data subject can enforce against the data importer this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where the data exporter has factually disappeared or has ceased to exist in law unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law, as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity.
3. The data subject can enforce against the subprocessor this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity. Such third-party liability of the subprocessor shall be limited to its own processing operations under the Clauses.
4. The parties do not object to a data subject being represented by an association or other body if the data subject so expressly wishes and if permitted by national law.
Clause 4
Obligations of the data exporter
The data exporter agrees and warrants:
(a) that the processing, including the transfer itself, of the personal data has been and will continue to be carried out in accordance with the relevant provisions of the applicable data protection law (and, where applicable, has been notified to the relevant authorities of the Member State where the data exporter is established) and does not violate the relevant provisions of that State;
(b) that it has instructed and throughout the duration of the personal data processing services will instruct the data importer to process the personal data transferred only on the data exporter’s behalf and in accordance with the applicable data protection law and the Clauses;
(c) that the data importer will provide sufficient guarantees in respect of the technical and organisational security measures specified in Appendix 2 to this contract;
(d) that after assessment of the requirements of the applicable data protection law, the security measures are appropriate to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing, and that these measures ensure a level of security appropriate to the risks presented by the processing and the nature of the data to be protected having regard to the state of the art and the cost of their implementation;
(e) that it will ensure compliance with the security measures;
(f) that, if the transfer involves special categories of data, the data subject has been informed or will be informed before, or as soon as possible after, the transfer that its data could be transmitted to a third country not providing adequate protection within the meaning of Directive 95/46/EC;
(g) to forward any notification received from the data importer or any subprocessor pursuant to Clause 5(b) and Clause 8(3) to the data protection supervisory authority if the data exporter decides to continue the transfer or to lift the suspension;
(h) to make available to the data subjects upon request a copy of the Clauses, with the exception of Appendix 2, and a summary description of the security measures, as well as a copy of any contract for subprocessing services which has to be made in accordance with the Clauses, unless the Clauses or the contract contain commercial information, in which case it may remove such commercial information;
(i) that, in the event of subprocessing, the processing activity is carried out in accordance with Clause 11 by a subprocessor providing at least the same level of protection for the personal data and the rights of data subject as the data importer under the Clauses; and
(j) that it will ensure compliance with Clause 4(a) to (i).
Clause 5
Obligations of the data importer
The data importer agrees and warrants:
(a) to process the personal data only on behalf of the data exporter and in compliance with its instructions and the Clauses; if it cannot provide such compliance for whatever reasons, it agrees to inform promptly the data exporter of its inability to comply, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;
(b) that it has no reason to believe that the legislation applicable to it prevents it from fulfilling the instructions received from the data exporter and its obligations under the contract and that in the event of a change in this legislation which is likely to have a substantial adverse effect on the warranties and obligations provided by the Clauses, it will promptly notify the change to the data exporter as soon as it is aware, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;
(c) that it has implemented the technical and organisational security measures specified in Appendix 2 before processing the personal data transferred;
(d) that it will promptly notify the data exporter about:
(i) any legally binding request for disclosure of the personal data by a law enforcement authority unless otherwise prohibited, such as a prohibition under criminal law to preserve the confidentiality of a law enforcement investigation,
(ii) any accidental or unauthorised access, and
(iii) any request received directly from the data subjects without responding to that request, unless it has been otherwise authorised to do so;
(e) to deal promptly and properly with all inquiries from the data exporter relating to its processing of the personal data subject to the transfer and to abide by the advice of the supervisory authority with regard to the processing of the data transferred;
(f) at the request of the data exporter to submit its data processing facilities for audit of the processing activities covered by the Clauses which shall be carried out by the data exporter or an inspection body composed of independent members and in possession of the required professional qualifications bound by a duty of confidentiality, selected by the data exporter, where applicable, in agreement with the supervisory authority;
(g) to make available to the data subject upon request a copy of the Clauses, or any existing contract for subprocessing, unless the Clauses or contract contain commercial information, in which case it may remove such commercial information, with the exception of Appendix 2 which shall be replaced by a summary description of the security measures in those cases where the data subject is unable to obtain a copy from the data exporter;
(h) that, in the event of subprocessing, it has previously informed the data exporter and obtained its prior written consent;
(i) that the processing services by the subprocessor will be carried out in accordance with Clause 11;
(j) to send promptly a copy of any subprocessor agreement it concludes under the Clauses to the data exporter.
Clause 6
Liability
1. The parties agree that any data subject, who has suffered damage as a result of any breach of the obligations referred to in Clause 3 or in Clause 11 by any party or subprocessor is entitled to receive compensation from the data exporter for the damage suffered.
2. If a data subject is not able to bring a claim for compensation in accordance with paragraph 1 against the data exporter, arising out of a breach by the data importer or his subprocessor of any of their obligations referred to in Clause 3 or in Clause 11, because the data exporter has factually disappeared or ceased to exist in law or has become insolvent, the data importer agrees that the data subject may issue a claim against the data importer as if it were the data exporter, unless any successor entity has assumed the entire legal obligations of the data exporter by contract of by operation of law, in which case the data subject can enforce its rights against such entity.
The data importer may not rely on a breach by a subprocessor of its obligations in order to avoid its own liabilities.
3. If a data subject is not able to bring a claim against the data exporter or the data importer referred to in paragraphs 1 and 2, arising out of a breach by the subprocessor of any of their obligations referred to in Clause 3 or in Clause 11 because both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, the subprocessor agrees that the data subject may issue a claim against the data subprocessor with regard to its own processing operations under the Clauses as if it were the data exporter or the data importer, unless any successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law, in which case the data subject can enforce its rights against such entity. The liability of the subprocessor shall be limited to its own processing operations under the Clauses.
Clause 7
Mediation and jurisdiction
1. The data importer agrees that if the data subject invokes against it third-party beneficiary rights and/or claims compensation for damages under the Clauses, the data importer will accept the decision of the data subject:
(a) to refer the dispute to mediation, by an independent person or, where applicable, by the supervisory authority;
(b) to refer the dispute to the courts in the Member State in which the data exporter is established.
2. The parties agree that the choice made by the data subject will not prejudice its substantive or procedural rights to seek remedies in accordance with other provisions of national or international law.
Clause 8
Cooperation with supervisory authorities
1. The data exporter agrees to deposit a copy of this contract with the supervisory authority if it so requests or if such deposit is required under the applicable data protection law.
2. The parties agree that the supervisory authority has the right to conduct an audit of the data importer, and of any subprocessor, which has the same scope and is subject to the same conditions as would apply to an audit of the data exporter under the applicable data protection law.
3. The data importer shall promptly inform the data exporter about the existence of legislation applicable to it or any subprocessor preventing the conduct of an audit of the data importer, or any subprocessor, pursuant to paragraph 2. In such a case the data exporter shall be entitled to take the measures foreseen in Clause 5 (b).
Clause 9
Governing Law
The Clauses shall be governed by the law of the Member State in which the data exporter is established.
Clause 10
Variation of the contract
The parties undertake not to vary or modify the Clauses. This does not preclude the parties from adding clauses on business related issues where required as long as they do not contradict the Clause.
Clause 11
Subprocessing
1. The data importer shall not subcontract any of its processing operations performed on behalf of the data exporter under the Clauses without the prior written consent of the data exporter. Where the data importer subcontracts its obligations under the Clauses, with the consent of the data exporter, it shall do so only by way of a written agreement with the subprocessor which imposes the same obligations on the subprocessor as are imposed on the data importer under the Clauses. Where the subprocessor fails to fulfil its data protection obligations under such written agreement the data importer shall remain fully liable to the data exporter for the performance of the subprocessor’s obligations under such agreement.
2. The prior written contract between the data importer and the subprocessor shall also provide for a third-party beneficiary clause as laid down in Clause 3 for cases where the data subject is not able to bring the claim for compensation referred to in paragraph 1 of Clause 6 against the data exporter or the data importer because they have factually disappeared or have ceased to exist in law or have become insolvent and no successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law. Such third-party liability of the subprocessor shall be limited to its own processing operations under the Clauses.
3. The provisions relating to data protection aspects for subprocessing of the contract referred to in paragraph 1 shall be governed by the law of the Member State in which the data exporter is established.
4. The data exporter shall keep a list of subprocessing agreements concluded under the Clauses and notified by the data importer pursuant to Clause 5 (j), which shall be updated at least once a year. The list shall be available to the data exporter’s data protection supervisory authority.
Clause 12
Obligation after the termination of personal data processing services
1. The parties agree that on the termination of the provision of data processing services, the data importer and the subprocessor shall, at the choice of the data exporter, return all the personal data transferred and the copies thereof to the data exporter or shall destroy all the personal data and certify to the data exporter that it has done so, unless legislation imposed upon the data importer prevents it from returning or destroying all or part of the personal data transferred. In that case, the data importer warrants that it will guarantee the confidentiality of the personal data transferred and will not actively process the personal data transferred anymore.
2. The data importer and the subprocessor warrant that upon request of the data exporter and/or of the supervisory authority, it will submit its data processing facilities for an audit of the measures referred to in paragraph 1.
APPENDIX 1 TO THE STANDARD CONTROLLER TO PROCESSOR CONTRACTUAL CLAUSES
This Appendix forms part of the Clauses
The Member States may complete or specify, according to their national procedures, any additional necessary information to be contained in this Appendix
Data exporter
The data exporter is:
The Customer
Data importer
The data importer is:
Cision US Inc., PR Newswire Association LLC or any other Company Affiliate to which imports data under the Agreement
Data subjects
The personal data transferred concern the following categories of data subjects:
Customer’s users of the Company’s services; individual media contacts including journalists and other media ‘influencers’, political, financial analyst, customer shareholder and advisor contacts provided by Customer
Categories of data
The personal data transferred concern the following categories of data:
Name, title, email address, business phone number, mobile phone number, social media handles.
Special categories of data (if appropriate)
The personal data transferred concern the following special categories of data: Not applicable.
Processing operations
The personal data transferred will be subject to the following basic processing activities:
Company may process Customer Data as necessary to perform the Services and comply with its obligations under the Agreement.
APPENDIX 2 TO THE CONTROLLER TO PROCESSOR STANDARD CONTRACTUAL CLAUSES
This Appendix forms part of the Clauses.
Description of the technical and organisational security measures implemented by the data importer in accordance with Clauses 4(d) and 5(c):
See www.cision.com and/or www.cision.co.uk
SCHEDULE 2
STANDARD CONTROLLER TO CONTROLLER CONTRACTUAL CLAUSES
Standard contractual clauses for the transfer of personal data from the Community to third countries (controller to controller transfers)
Data transfer agreement
Between
The Company
(hereinafter the data exporter)
and
The Customer
(hereinafter data importer)
each a party; together the parties.
DEFINITIONS
For the purposes of the clauses:
(a) personal data, special categories of data/sensitive data, process/processing, controller, processor, data subject and supervisory authority/authority shall have the same meaning as in Directive 95/46/EC of 24 October 1995 (whereby the authority shall mean the competent data protection authority in the territory in which the data exporter is established);
(b) the data exporter shall mean the controller who transfers the personal data;
(c) the data importer shall mean the controller who agrees to receive from the data exporter personal data for further processing in accordance with the terms of these clauses and who is not subject to a third country’s system ensuring adequate protection;
(d) clauses shall mean these contractual clauses, which are a free-standing document that does not incorporate commercial business terms established by the parties under separate commercial arrangements.
The details of the transfer (as well as the personal data covered) are specified in Annex B, which forms an integral part of the clauses.
1. OBLIGATIONS OF THE DATA EXPORTER
The data exporter warrants and undertakes that:
(a) The personal data have been collected, processed and transferred in accordance with the laws applicable to the data exporter.
(b) It has used reasonable efforts to determine that the data importer is able to satisfy its legal obligations under these clauses.
(c) It will provide the data importer, when so requested, with copies of relevant data protection laws or references to them (where relevant, and not including legal advice) of the country in which the data exporter is established.
(d) It will respond to enquiries from data subjects and the authority concerning processing of the personal data by the data importer, unless the parties have agreed that the data importer will so respond, in which case the data exporter will still respond to the extent reasonably possible and with the information reasonably available to it if the data importer is unwilling or unable to respond. Responses will be made within a reasonable time.
(e) It will make available, upon request, a copy of the clauses to data subjects who are third party beneficiaries under clause 3, unless the clauses contain confidential information, in which case it may remove such information. Where information is removed, the data exporter shall inform data subjects in writing of the reason for removal and of their right to draw the removal to the attention of the authority. However, the data exporter shall abide by a decision of the authority regarding access to the full text of the clauses by data subjects, as long as data subjects have agreed to respect the confidentiality of the confidential information removed. The data exporter shall also provide a copy of the clauses to the authority where required.
2. OBLIGATIONS OF THE DATA IMPORTER
The data importer warrants and undertakes that:
(a) It will have in place appropriate technical and organisational measures to protect the personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, and which provide a level of security appropriate to the risk represented by the processing and the nature of the data to be protected.
(b) It will have in place procedures so that any third party it authorises to have access to the personal data, including processors, will respect and maintain the confidentiality and security of the personal data. Any person acting under the authority of the data importer, including a data processor, shall be obligated to process the personal data only on instructions from the data importer. This provision does not apply to persons authorised or required by law or regulation to have access to the personal data.
(c) It has no reason to believe, at the time of entering into these clauses, in the existence of any local laws that would have a substantial adverse effect on the guarantees provided for under these clauses, and it will inform the data exporter (which will pass such notification on to the authority where required) if it becomes aware of any such laws.
(d) It will process the personal data for purposes described in Annex B, and has the legal authority to give the warranties and fulfil the undertakings set out in these clauses.
(e) It will identify to the data exporter a contact point within its organisation authorised to respond to enquiries concerning processing of the personal data, and will cooperate in good faith with the data exporter, the data subject and the authority concerning all such enquiries within a reasonable time. In case of legal dissolution of the data exporter, or if the parties have so agreed, the data importer will assume responsibility for compliance with the provisions of clause 1(e).
(f) At the request of the data exporter, it will provide the data exporter with evidence of financial resources sufficient to fulfil its responsibilities under clause 3(which may include insurance coverage).
(g) Upon reasonable request of the data exporter, it will submit its data processing facilities, data files and documentation needed for processing to reviewing, auditing and/or certifying by the data exporter (or any independent or impartial inspection agents or auditors, selected by the data exporter and not reasonably objected to by the data importer) to ascertain compliance with the warranties and undertakings in these clauses, with reasonable notice and during regular business hours. The request will be subject to any necessary consent or approval from a regulatory or supervisory authority within the country of the data importer, which consent or approval the data importer will attempt to obtain in a timely fashion.
(h) It will process the personal data, at its option, in accordance with:
(i) the data protection laws of the country in which the data exporter is established, or
(ii) the relevant provisions of any Commission decision pursuant to Article 25(6) of Directive 95/46/EC, where the data importer complies with the relevant provisions of such an authorisation or decision and is based in a country to which such an authorisation or decision pertains, but is not covered by such authorisation or decision for the purposes of the transfer(s) of the personal data, or
(iii) the data processing principles set forth in Annex A.
Data importer to indicate which option it selects:
(i) the data protection laws of the country in which the data exporter is established.
(i) It will not disclose or transfer the personal data to a third party data controller located outside the European Economic Area (EEA) unless it notifies the data exporter about the transfer and
(i) the third party data controller processes the personal data in accordance with a Commission decision finding that a third country provides adequate protection, or
(ii) the third party data controller becomes a signatory to these clauses or another data transfer agreement approved by a competent authority in the EU, or
(iii) data subjects have been given the opportunity to object, after having been informed of the purposes of the transfer, the categories of recipients and the fact that the countries to which data is exported may have different data protection standards, or
(iv) with regard to onward transfers of sensitive data, data subjects have given their unambiguous consent to the onward transfer.
3. LIABILITY AND THIRD PARTY RIGHTS
(a) Each party shall be liable to the other parties for damages it causes by any breach of these clauses. Liability as between the parties is limited to actual damage suffered. Punitive damages (i.e. damages intended to punish a party for its outrageous conduct) are specifically excluded. Each party shall be liable to data subjects for damages it causes by any breach of third party rights under these clauses. This does not affect the liability of the data exporter under its data protection law.
(b) The parties agree that a data subject shall have the right to enforce as a third party beneficiary this clause and clauses clause 1(b), clause 1(d), clause 1(e), clause 2(a), clause 2(c), clause 2(d), clause 2(e), clause 2(h), clause 2(i), clause 3(a), clause 5, clause 6(d)and clause 7 against the data importer or the data exporter, for their respective breach of their contractual obligations, with regard to his personal data, and accept jurisdiction for this purpose in the data exporter’s country of establishment. In cases involving allegations of breach by the data importer, the data subject must first request the data exporter to take appropriate action to enforce his rights against the data importer; if the data exporter does not take such action within a reasonable period (which under normal circumstances would be one month), the data subject may then enforce his rights against the data importer directly. A data subject is entitled to proceed directly against a data exporter that has failed to use reasonable efforts to determine that the data importer is able to satisfy its legal obligations under these clauses (the data exporter shall have the burden to prove that it took reasonable efforts).
4. LAW APPLICABLE TO THE CLAUSES
These clauses shall be governed by the law of the country in which the data exporter is established, with the exception of the laws and regulations relating to processing of the personal data by the data importer under clause 2(h) which shall apply only if so selected by the data importer under that clause.
5. RESOLUTION OF DISPUTES WITH DATA SUBJECTS OR THE AUTHORITY
(a) In the event of a dispute or claim brought by a data subject or the authority concerning the processing of the personal data against either or both of the parties, the parties will inform each other about any such disputes or claims, and will cooperate with a view to settling them amicably in a timely fashion.
(b) The parties agree to respond to any generally available non-binding mediation procedure initiated by a data subject or by the authority. If they do participate in the proceedings, the parties may elect to do so remotely (such as by telephone or other electronic means). The parties also agree to consider participating in any other arbitration, mediation or other dispute resolution proceedings developed for data protection disputes.
(c) Each party shall abide by a decision of a competent court of the data exporter’s country of establishment or of the authority which is final and against which no further appeal is possible.
6. TERMINATION
(a) In the event that the data importer is in breach of its obligations under these clauses, then the data exporter may temporarily suspend the transfer of personal data to the data importer until the breach is repaired or the contract is terminated.
(b) In the event that:
(i) the transfer of personal data to the data importer has been temporarily suspended by the data exporter for longer than one month pursuant to clause 6(a);
(ii) compliance by the data importer with these clauses would put it in breach of its legal or regulatory obligations in the country of import;
(iii) the data importer is in substantial or persistent breach of any warranties or undertakings given by it under these clauses;
(iv) a final decision against which no further appeal is possible of a competent court of the data exporter’s country of establishment or of the authority rules that there has been a breach of the clauses by the data importer or the data exporter; or
(v) a petition is presented for the administration or winding up of the data importer, whether in its personal or business capacity, which petition is not dismissed within the applicable period for such dismissal under applicable law; a winding up order is made; a receiver is appointed over any of its assets; a trustee in bankruptcy is appointed, if the data importer is an individual; a company voluntary arrangement is commenced by it; or any equivalent event in any jurisdiction occurs
then the data exporter, without prejudice to any other rights which it may have against the data importer, shall be entitled to terminate these clauses, in which case the authority shall be informed where required. In cases covered by clause 6(b)(i), clause 6(b)(ii), or clause 6(b)(iv) above the data importer may also terminate these clauses.
(c) Either party may terminate these clauses if
(i) any Commission positive adequacy decision under Article 25(6) of Directive 95/46/EC (or any superseding text) is issued in relation to the country (or a sector thereof) to which the data is transferred and processed by the data importer, or
(ii) Directive 95/46/EC (or any superseding text) becomes directly applicable in such country.
(d) The parties agree that the termination of these clauses at any time, in any circumstances and for whatever reason (except for termination under clause 6(c) does not exempt them from the obligations and/or conditions under the clauses as regards the processing of the personal data transferred.
7. VARIATION OF THESE CLAUSES
The parties may not modify these clauses except to update any information in Annex B, in which case they will inform the authority where required. This does not preclude the parties from adding additional commercial clauses where required.
8. DESCRIPTION OF THE TRANSFER
The details of the transfer and of the personal data are specified in Annex B. The parties agree that Annex B may contain confidential business information which they will not disclose to third parties, except as required by law or in response to a competent regulatory or government agency, or as required under clause 1(e). The parties may execute additional annexes to cover additional transfers, which will be submitted to the authority where required. Annex B may, in the alternative, be drafted to cover multiple transfers.
Annex A.
DATA PROCESSING PRINCIPLES
1. Purpose limitation: Personal data may be processed and subsequently used or further communicated only for purposes described in Annex B or subsequently authorised by the data subject.
2. Data quality and proportionality: Personal data must be accurate and, where necessary, kept up to date. The personal data must be adequate, relevant and not excessive in relation to the purposes for which they are transferred and further processed.
3. Transparency: Data subjects must be provided with information necessary to ensure fair processing (such as information about the purposes of processing and about the transfer), unless such information has already been given by the data exporter.
4. Security and confidentiality: Technical and organisational security measures must be taken by the data controller that are appropriate to the risks, such as against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, presented by the processing. Any person acting under the authority of the data controller, including a processor, must not process the data except on instructions from the data controller.
5. Rights of access, rectification, deletion and objection: As provided in Article 12 of Directive 95/46/EC, data subjects must, whether directly or via a third party, be provided with the personal information about them that an organisation holds, except for requests which are manifestly abusive, based on unreasonable intervals or their number or repetitive or systematic nature, or for which access need not be granted under the law of the country of the data exporter. Provided that the authority has given its prior approval, access need also not be granted when doing so would be likely to seriously harm the interests of the data importer or other organisations dealing with the data importer and such interests are not overridden by the interests for fundamental rights and freedoms of the data subject. The sources of the personal data need not be identified when this is not possible by reasonable efforts, or where the rights of persons other than the individual would be violated. Data subjects must be able to have the personal information about them rectified, amended, or deleted where it is inaccurate or processed against these principles. If there are compelling grounds to doubt the legitimacy of the request, the organisation may require further justifications before proceeding to rectification, amendment or deletion. Notification of any rectification, amendment or deletion to third parties to whom the data have been disclosed need not be made when this involves a disproportionate effort. A data subject must also be able to object to the processing of the personal data relating to him if there are compelling legitimate grounds relating to his particular situation. The burden of proof for any refusal rests on the data importer, and the data subject may always challenge a refusal before the authority.
6. Sensitive data: The data importer shall take such additional measures (e.g. relating to security) as are necessary to protect such sensitive data in accordance with its obligations under clause 2.
7. Data used for marketing purposes: Where data are processed for the purposes of direct marketing, effective procedures should exist allowing the data subject at any time to “opt-out” from having his data used for such purposes.
8. Automated decisions: For purposes hereof “automated decision” shall mean a decision by the data exporter or the data importer which produces legal effects concerning a data subject or significantly affects a data subject and which is based solely on automated processing of personal data intended to evaluate certain personal aspects relating to him, such as his performance at work, creditworthiness, reliability, conduct, etc. The data importer shall not make any automated decisions concerning data subjects, except when:
(a) (i) such decisions are made by the data importer in entering into or performing a contract with the data subject, and
(ii) (the data subject is given an opportunity to discuss the results of a relevant automated decision with a representative of the parties making such decision or otherwise to make representations to that parties.
or
(b) where otherwise provided by the law of the data exporter.
Annex B.
DESCRIPTION OF THE TRANSFER
Data subjects
The personal data transferred concern the following categories of data subjects:
Individual media contacts including journalists and other media ‘influencers’, analysts, politicians, government officials or representatives
Purposes of the transfer(s)
The transfer is made for the following purposes:
Customer may process Company Data as necessary to receive the Services and comply with its obligations under the Agreement.
Categories of data
The personal data transferred concern the following categories of data:
Name, title, email address, business phone number, mobile phone number, employer, social media handles
Recipients
The personal data transferred may be disclosed only to the following recipients or categories of recipients:
Customer’s authorised users (under the Agreement).