UK REPRESENTATIVE APPOINTMENT – TERMS OF SERVICE

Shoosmiths Privacy Services Limited

These terms and conditions (“Terms of Service”) are entered into between (1) Shoosmiths Privacy Services Limited (a company incorporated in England and Wales under company number 12970199 whose registered office is at 100 Avebury Boulevard, Milton Keynes, United Kingdom MK9 1FH) (“SPS”) and (2) the legal entity subscribing to the Service as identified in the Confirmation of Appointment Email (“Customer”).

1 INTERPRETATION

1.1 The following words and phrases shall have the following meanings:

 

"Affiliate"	in relation to a Party, any direct or indirect holding company of such Party from time to time, or any direct or indirect subsidiary of such Party or of any such holding company from time to time; in which respect a company or corporate entity is a "subsidiary" of another company or corporate entity, its “holding company”, if that other company or corporate entity holds or controls the majority of voting rights in it or has the right to appoint or remove the majority of its directors;
"Annual Fee"	as defined in clause 5.2;
"Appointment Date"	whichever is the later of: (a) 31 December 2020, or (b) the date on which the Customer has uploaded the Mandatory Information and first paid the Annual Fee or the Monthly Fee (as applicable);
"Article 27 Representative"	a representative in the United Kingdom for the purposes of and within the meaning of Article 27 of the UK GDPR;
"Authorised Users"	those employees and/or individual contractors of Customer nominated by Customer as such and who are granted user access by SPS to the Platform;
"Business Day"	a day other than a Saturday, Sunday or public holiday in England;
"Customer Data"	collectively, (a) all data and information uploaded by any Authorised Users to the Platform and (b) communications received by SPS from the Supervisory Authority or any UK Data Subject, and Customer’s responses to such communications (as relayed via SPS), pursuant to the Service;
"Confidential Information"	all information disclosed by or on behalf of a Party (in whatever medium, including in written, oral, visual or electronic form and whether before or after the date of these Terms of Service) including all business, financial, commercial, technical, operational, organisational, legal, management and marketing information;
"Confirmation of Appointment Email"	the email labelled as such and which is sent to Customer immediately following online appointment of SPS by Customer;
"Data Processing Annex"	the terms governing the processing of Personal Data under these Terms of Service, as set out in Annex 2;
"Data Protection Law"	all applicable law and regulation concerning data protection and privacy in or relating to the United Kingdom from time to time, including the UK Data Protection Act 2018 and the UK GDPR;
"Data Protection Questionnaire"	a questionnaire relating to Customer’s business and data processing activities, in the form supplied or made available by SPS to Customer;
"Documentation"	guidance notes, templates and other documentation originated and made available by SPS to Customer via the Platform (but excluding Customer Data);
"Fees"	Annual Fees or Monthly Fees, as applicable;
"Indemnities"	collectively, SPS and all Affiliates of SPS, and its and their officers, members, directors, agents, contractors and employees;
"Insolvency Event"	in relation to a Party, any of the following matters or events in the United Kingdom, or any matters or events under the laws applicable to that Party that would be the nearest equivalent to the following matters or events in the United Kingdom: (a) that Party being dissolved or struck off from the register of companies at which its registration is maintained; (b) that Party having a winding up order made against it, or convening a meeting, passing a resolution or taking any other step with a view to its winding-up, except for the purpose of its solvent reconstruction, reorganisation, merger or consolidation; (c) a receiver (including fixed charge or court appointed), administrative receiver, manager, insolvency practitioner or similar officer being appointed over the whole or a substantial part of the undertaking, property or assets of that Party; (d) that Party being unable or being deemed unable to pay its debts as they fall due; (e) that Party entering into or proposing to enter into a composition, scheme of arrangement or voluntary arrangement with any of its creditors in respect of all or a material part of (or of a particular type of) its debts; (f) a court application or order being made for the appointment of an administrator, or a notice of intention to appoint an administrator being given or an administrator being appointed, over that Party; or (g) any event or step being taken or arising preparatory to or in anticipation of any of the foregoing;
"Intellectual Property"	all inventions (whether patentable or not), patents, utility models, designs (both registered and unregistered and including rights in semiconductor topographies), copyright, database rights, trade and service marks (both registered and unregistered) together with all applications for (and associated rights to claim priority), rights to the grant of and extensions of the same, and all other intellectual and industrial property including but not limited to all similar or analogous rights throughout the world, in each case for the full term of the relevant right;
"Losses"	all costs, expenses, damages, losses or other liabilities, including all interest, fines, penalties, legal and other professional fees and expenses, awarded against, suffered, incurred or paid by the Indemnitees or any of them;
"Mandatory Documents"	collectively, (a) (if required to be maintained by Customer under Article 30 of the UK GDPR) a duplicate copy of Customer’s current and up-to-date Record of Processing Activities; and (b) the Data Protection Questionnaire, duly completed by Customer;
"Monthly Fee"	as defined in clause 5.2;
"Party"	a contracting party to these Terms of Service;
"Personal Data"	has the same meaning as set out in the Data Protection Law;
"Platform"	SPS’s online platform implemented for Customer’s use, which is made available to Authorised Users for the storage, viewing, uploading and downloading of Mandatory Documents and of copies of all communications to or from the Supervisory Authority and any UK Data Subject in the course of the UK Representative Appointment;
"Record of Processing Activities"	a written record of processing activities, in electronic form, within the meaning of, and containing the elements stipulated in, Article 30 of the UK GDPR;
"Representative Email Address"	an email address to be selected by Customer and agreed by SPS, utilising an email domain name owned by SPS in the format [XX]@dataprivacyrep.com where [XX] shall comprise Customer’s company or trading name;
"Service"	the services provided by SPS pursuant to these Terms of Service, including the UK Representative Duties and the provision of access to the Platform;
"Software"	the software applications and programs owned by or licensed to SPS or its Affiliates which (in whole or part) provide the functionality and features of the Platform and related databases;
"Staff"	officers, employees and consultants;
"Staff Banding"	means the following banding of numbers of Staff: 1-20; 21-80; 81-250; 251-1,500; 1,501 or greater;
"Sub-Processor Schedule"	the Schedule to the Data Processing Annex, setting out the sub-processors to be used by SPS in the provision of the Service;
"Supervisory Authority"	the Information Commissioner’s Office, being the responsible body in the UK for regulation of data protection matters;
"UK Data Subject"	any data subject (being an identified or identifiable natural person, within the meaning of Data Protection Law) in the United Kingdom;
"UK GDPR"	the EU General Data Protection Regulation (2016/679) as amended and incorporated into English law by the UK Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2019;
"UK Representative Appointment"	as defined in clause 3.1;
"UK Representative Duties"	as defined in clause 3.1 and Annex 1; and
"Virus"	any thing or device (including any malicious code, worm, trojan horses or virus) which is intended to designed to disable, damage, erase, disrupt, prevent, impair or otherwise adversely affect the normal operation of or access to any computer programme, software, database or contents thereof, hardware or equipment, network or telecommunications service.

 

2 CONTRACT FORMATION AND APPOINTMENT DATE

2.1 These Terms of Service are deemed to incorporate the Customer and Fee details and any other transactional details contained in the Confirmation of Appointment Email, and shall collectively comprise the entire agreement between the Parties relating to its subject matter.  All references in this document to these Terms of Service shall be interpreted accordingly.

2.2 To the fullest extent permissible under applicable law, these Terms of Service shall apply to the exclusion of any and all other conditions, agreements or arrangements which Customer may seek to impose or incorporate, or which may otherwise be implied by trade, custom, practice or course of dealing.

2.3 These Terms of Service shall commence on the date of their acceptance by Customer, except that (without prejudice to clause 3.8) the UK Representative Appointment shall commence on the Appointment Date.  Customer acknowledges that the UK Representative Appointment is subject to and conditional upon (a) payment by Customer of the first Annual Fee or Monthly Fee; and (b) Customer having uploaded the Mandatory Documents to the Platform.

2.4 The UK Representative Appointment shall not in any event commence prior to 23:00 (UK local time) on 31 December 2020.

3 UK REPRESENTATIVE APPOINTMENT

3.1 With effect from the Appointment Date, Customer designates SPS as its Article 27 Representative, and SPS hereby undertakes, for so long as it is so designated, to perform and discharge its statutory functions as such as specified in the Annex 1 (the “UK Representative Duties”) but no other or wider duties (collectively, the “UK Representative Appointment”).

3.2 Pursuant to and for the duration of the UK Representative Appointment:

3.2.1 Customer hereby mandates SPS to act as the primary point of contact with (a) the Supervisory Authority and (b) UK Data Subjects, in respect of (and only in respect of) matters relating to the processing of personal data by Customer insofar as it falls within the jurisdiction of the Supervisory Authority;

3.2.2 Customer may hold out SPS to the Supervisory Authority, to UK Data Subjects and to the general public as having been appointed by Customer in the capacity of its Article 27 Representative; and Customer may publish or provide the Representative Email Address (including within its privacy notices and policies) to enable SPS to be contacted in such capacity;

3.2.3 Customer shall ensure that the Mandatory Documents remain accurate, complete and up to date at all times, and Customer shall accordingly upload to the Platform any revisions to the Mandatory Documents as may be necessary from time to time;

3.2.4 Customer shall ensure that the Record of Processing Activities complies with Article 30 of the UK GDPR, and shall not contain any Personal Data; and

3.2.5 (without prejudice to clause 3.3) Customer shall promptly provide all information or responses reasonably required by SPS in order to perform and discharge its UK Representative Duties.

3.3 Customer shall not instruct SPS, or knowingly take any steps or measures, which have the intention or effect of preventing, frustrating, hindering or delaying SPS in the performance and discharge of the UK Representative Duties.  In the event that, in SPS’s reasonable opinion, any instructions steps or measures made or taken by Customer will or may have such effect, SPS reserves the right to notify Customer and recommend such alternative instructions or alternative steps or measures as reasonably required to enable Customer to perform and discharge the UK Representative Duties.  In the event that Customer does not give such alternative instructions or take such alternative steps or measures as reasonably required by SPS, then SPS may terminate these Terms of Service on giving at least 7 days’ notice in writing to Customer.

3.4 If, as at the date of commencement of the UK Representative Appointment, Customer employs at least 250 persons, it shall promptly notify SPS if at any time thereafter it reduces its total employees to fewer than 250 persons.  If so notified, SPS shall contact Customer to discuss whether Customer (and SPS in the capacity of Customer’s Article 27 Representative) wishes to continue to maintain a Record of Processing Activities.

3.5 Neither the UK Representative Appointment, nor the undertaking by SPS to perform the UK Representative Duties, nor the performance by SPS of any of its other obligations under these Terms of Service, shall in or of itself: (a) create any office, branch or other place of establishment of Customer in the United Kingdom; (b) affect Customer’s responsibility or liability (whether as controller or processor of personal data) to ensure its compliance with Data Protection Law (save in respect of its obligation to appoint a representative under Article 27 of UK GDPR); (c) prejudice any legal actions initiated by any third party against Customer in respect of Customer’s non-compliance with Data Protection Law; or (d) establish any substitutive liability of SPS in place of Customer.

3.6 Customer acknowledges and agrees that: (a) the Service is provided by SPS and no other entity; (b) SPS is a wholly-owned subsidiary of Shoosmiths LLP (a UK law firm), but SPS is not itself a law firm and is not regulated by any legal regulator, and is not authorised to provide legal advice to Customer; and accordingly Customer shall not benefit under these Terms of Service from the regulatory protections which a client of a law firm has; (c) Customer shall not become a client of Shoosmiths LLP pursuant to these Terms of Service, or by virtue of any communications, acts or steps made or taken by SPS in the performance of its obligations under these Terms of Service; and (d) Shoosmiths LLP assumes no duty of care or other legal responsibility to Customer by virtue of or in respect of any services provided by SPS under or in connection with these Terms of Service.

3.7 Customer may at any time request, or SPS may recommend, that Customer obtains professional legal advice in respect of any matter relating to its UK activities or operations.  In such event, SPS shall, with Customer’s prior consent, refer such matter to Shoosmiths LLP.  Any services provided by Shoosmiths LLP fall outside the scope of the Service and are subject to the execution of a letter of engagement between Customer and Shoosmiths LLP, and subject to Customer providing further client identification verification to Shoosmiths LLP in accordance with UK anti-money laundering regulations.  Customer is under no obligation to instruct Shoosmiths LLP.

3.8 Customer acknowledges and agrees that SPS reserves the right to decline to act (or continue to act) as the Article 27 Representative for any entity, in circumstances in which:

3.8.1 such entity appears on, or is controlled by or connected to any person appearing on, any financial, anti-money laundering, human rights, or other sanctions list published from time to time by the UK Government or falls within the definition of a politically exposed person (as defined under English law from time to time); or

3.8.2 in SPS’s sole opinion the identity of such entity and/or nature of its business is unclear or cannot reasonably be verified, or would or may bring SPS into disrepute or be contrary to its policies; and 
in any such circumstances SPS may, upon giving notice in writing to Customer, terminate these Terms of Service with immediate effect.

3.9 Customer agrees that the UK Representative Appointment is personal to Customer, and is not provided to or for the benefit of any Affiliate of Customer or any other person or entity.  In the event that any Affiliate of Customer also wishes to appoint SPS to be its Article 27 Representative, such appointment shall be subject to separate agreement between such Affiliate and SPS.

4 USE OF THE PLATFORM

4.1 SPS hereby grants to Customer the right to enable the Authorised Users to use the Platform and the Documentation, solely for and in connection with the UK Representative Appointment, and in accordance with and subject to the provisions of this clause 4.

4.2 SPS shall use reasonable endeavours to make the Platform available to Authorised Users at all times, except in respect of scheduled site maintenance (which wherever possible shall occur on days other than Business Days), and provided always that:

4.2.1 SPS reserves the right with or without notice to suspend any facilities of or availability to the Platform in the event of any emergency (including in the event of any actual, threatened or suspected security breach);

4.2.2 SPS does not warrant or represent that Customer's use of the Platform will be uninterrupted or error-free; and

4.2.3 SPS shall not be responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including any interruption or failure in internet or telecommunications networks, hardware or providers; and Customer acknowledges that the Platform may be subject to limitations, delays and other problems inherent in the use of such communications facilities.

4.3 Customer shall ensure that the Authorised Users use the Platform and the Documentation in accordance with the provisions of these Terms of Service.  Customer shall be responsible and liable to SPS in respect of all acts, omissions and defaults of (a) all such Authorised Users (whether or not employed by Customer and, if employed, whether or not acting within the course of their employment) and (b) all other individuals connected or related to Customer who access or seek to access the Platform, whether or not authorised to do so.

4.4 Customer shall not, in the course of the use of the Platform (whether or not such use is authorised by it or carried out by an Authorised User, and whether or not intentionally), access, store, distribute or transmit (a) any Viruses or (b) any material that: is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive; facilitates illegal activity; depicts sexually explicit images; promotes unlawful violence; is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; is otherwise illegal or causes damage or injury to any person or property; or the use or analysis of which breaches or would breach Customer’s obligations under the Data Processing Annex.

4.5 Unless expressly permitted otherwise under these Terms of Service, Customer shall not:

4.5.1 (save as otherwise permitted under mandatory applicable law) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Platform, any Software or any Documentation, in any form or media or by any means;

4.5.2 (save as otherwise permitted under mandatory applicable law) attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Platform or Software;

4.5.3 access all or any part of the Platform or Documentation in order to build a product or service which emulates or competes with the Service, or use the Platform and/or Documentation to provide services to third parties;

4.5.4 (save in respect of the uploading, downloading, copying, disseminating and otherwise using any Customer Data on the Platform) exploit, share, transfer, license or distribute the Platform (or any aspect of it) or any Documentation, or otherwise make the Platform or Documentation available to any third party except the Authorised Users; or

4.5.5 attempt to obtain, or assist third parties in obtaining, access to the Platform and/or Documentation.

4.6 Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Platform and/or the Documentation.  In the event of any such unauthorised access or use, Customer shall promptly notify SPS.

4.7 SPS hereby reserves the right to suspend or terminate Customer's access (or that of one or more Authorised Users) to the Platform in the event of any acts or omissions by Customer (including any Authorised User) in breach of its obligations under this clause 4, without incurring any liability to Customer by reason of such suspension or termination. 

5 FEES

5.1 Customer may, for any payment of Fees, choose to pay either by credit or debit card via SPS’s dedicated payment portal or by direct bank transfer.  SPS does not accept any other method of payment.   In the case of direct bank transfer, Customer may contact SPS at [email protected] (or such other email address notified by SPS) to obtain SPS’s bank details.   If Customer wishes to have payment made by any third party on its behalf, it should notify SPS in advance to ensure the payment is accepted.

5.2 Customer may choose to pay Fees either on an annual basis in advance (“Annual Fees”) or on a recurring monthly basis in advance (“Monthly Fees”).  Customer shall pay the Annual Fees or Monthly Fees (as applicable) corresponding to its Staff Banding, in accordance with SPS’s then-applicable Fee tariff or as otherwise agreed by the Parties.   At the time of its first payment, the Fees applicable to Customer shall be as specified in the Confirmation of Appointment Email (or as otherwise agreed in writing by the Parties).

5.3 If at any time the Staff Banding applicable to Customer changes due to a change in the total number of Customer’s Staff, then it shall promptly notify SPS by email with details of the new Staff Banding applicable to it.  If so notified, SPS shall apply an adjusted Annual Fee or Monthly Fee (as applicable), in accordance with its then-applicable fee tariffs, at the time of the next applicable payment date in order to reflect the new Staff Banding applicable to Customer.  Customer shall not be entitled to any pro-rata refund of Fees in respect of any reduction in Customer’s Staff during any part of a subscription term.

5.4 With effect from 31 December 2021, SPS may increase its Fee tariff in every 12 month period commencing on 31 December by up to 5% of the Fees applicable in the immediately preceding 12 month period.  SPS may also review and adjust its Fee tariff as it reasonably thinks fit, in view of prevailing market conditions, once in every three years commencing (and with effect from) 31 December 2023.  Any increase shall be notified in writing by SPS to Customer at least 30 days in advance.

5.5 Customer shall pay Fees in the currency stated in the Confirmation of Appointment Email (or as otherwise agreed in writing by the Parties).

5.6 All Fees payable are non-refundable, except as otherwise specified in clauses 3.8, 11.6.1, 11.6.2 and 12.2.   All Fees are payable in full and unconditionally, and without set-off or counterclaim.  If Customer is required to make any withholding by way of withholding tax it shall gross up the payment to SPS so that SPS receives the sum that it would have received had not such withholding been made.

5.7 All amounts payable under these Terms of Service are stated exclusive of value added tax or any goods or services tax or other sales tax that may be payable by reference to the relevant principal amount(s), all of which taxes shall (if and to the extent applicable) be payable by Customer in addition to the relevant principal amount(s).

5.8 SPS reserves the right to charge interest on a daily basis on all unpaid sums from the due date for payment until payment in full is received, whether before or after judgment, at a rate of 3% over the then current base lending rate of Royal Bank of Scotland plc from time to time.

6 INTELLECTUAL PROPERTY

6.1 As between the Parties, SPS and/or its Affiliates and/or its or their respective licensors shall own all Intellectual Property in and to the Platform, the Documentation and the Software (but in all cases excluding the Customer Data) (collectively “SPS IPR”).  Except as expressly stated herein, these Terms of Service do not grant Customer any rights to, under or in, any SPS IPR.

6.2 To the extent that any SPS IPR does not, by operation of the law, vest automatically in SPS but is owned by Customer, Customer hereby irrevocably assigns or shall procure the assignment of the same to SPS by way of present and (where possible) future assignment with full title guarantee.  Customer shall do or procure to be done all such things and execute or procure the execution of all such documents which may be necessary or desirable to vest such rights in SPS absolutely.

7 CONFIDENTIALITY

7.1 SPS shall keep all Confidential Information of Customer confidential, and not without the prior written consent of Customer disclose or permit the disclosure of the same to any third party other than (a) its or their respective personnel on a strictly need to know basis, or (b) to the extent of any disclosure required to be made in the performance of the UK Representative Duties.

7.2 The provisions of clause 7.1 shall not apply to any Confidential Information that:

7.2.1 SPS can reasonably demonstrate was known to SPS or in its possession before that information was disclosed by or acquired from Customer;

7.2.2 is in or enters the public domain through no default of SPS or any person on its behalf, with effect from the date that the relevant Confidential Information enters the public domain; or

7.2.3 SPS receives from a third party without similar obligations of confidence in circumstances where the third party did not obtain that information as a result of a breach of an obligation of confidence.

7.3 The provisions of clause 7.1 above shall not apply to any information which is required to be disclosed by any applicable law or by order of any court of competent jurisdiction or any government body, agency or regulatory body, to the extent of the required disclosure, provided that SPS shall use all reasonable endeavours to give Customer as much notice of the disclosure as it reasonably can to enable Customer to seek a protective order or other action protecting such information from disclosure and shall disclose only that portion of the information that it is legally obliged to disclose.

7.4 The receiving Party shall notify the disclosing Party promptly if it becomes aware that any of the Confidential Information falls within the provisions of clause 7.2.

8 CUSTOMER DATA AND DATA PROTECTION

8.1 Without prejudice to clause 8.3, Customer shall own all right, title and interest in and to all Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of Customer Data.

8.2 SPS shall follow its procedures for the backup of Customer Data as set out in its system security policies from time to time.  In the event of any loss or damage to Customer Data, SPS shall use all reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by SPS in accordance with its backup procedures.  SPS shall not however be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by (a) Customer or any Affiliate of Customer, or any officers employees agents or representatives of Customer or any such Affiliate,  or  any person acting on behalf of or employed or engaged by Customer (whether or not an Authorised User); or (b) any third party (other than any third party sub-contracted by SPS to perform services related to Customer Data maintenance and back-up).  Customer shall ensure that it retains on its own systems copies of each and every version of its Record of Processing Activities which it uploads to the Platform, and accordingly Customer shall not rely upon SPS to provide any backup service to Customer in respect of any such version.  Customer shall promptly provide to SPS, upon SPS’ written request, a replacement of any then-current version of its Record of Processing Activities.

8.3 In respect of the processing by SPS of any Personal Data on behalf of Customer, each Party shall comply with its respective obligations as set out in Annex 2 (Data Processing Annex).

9 INDEMNITY

9.1 Customer shall indemnify the Indemnitees, and shall defend and hold the Indemnitees harmless, in full and on demand, from and against all Losses arising out of or in connection with the UK Representative Appointment; provided that this indemnity shall not apply to (and to the extent of) any Losses which would not have arisen but for (a) SPS’s failure to perform or negligent performance of the UK Representative Duties (in circumstances in which such failure or negligence was not a direct result of Customer’s breach of these Terms of Service) or (b) SPS’s breach of its obligations under the Data Processing Annex.

9.2 SPS shall promptly notify Customer of any matter for which SPS seeks indemnification under clause 9.1 (a “Claim”), and shall give Customer sole authority to defend or settle the Claim, provided that no settlement shall be made which prejudices SPS’s rights or places SPS under any additional obligations or duties without the prior written approval of SPS (such approval not to be unreasonably withheld or delayed).   SPS shall, at Customer’s cost and expense, provide all reasonable co-operation to Customer in connection with the defence and settlement of such Claim.

10 LIMITATION OF LIABILITY

10.1 Nothing in these Terms of Service excludes or restricts the liability of either Party (in this clause, the "first Party") to the other Party for: (a) death or personal injury caused by the negligence of the first Party; (b) fraud or fraudulent misrepresentation of the first Party; or (c) any other matter in respect of which it would be unlawful for the first Party to exclude or restrict liability.

10.2 All warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from these Terms of Service.

10.3 Subject to clause 10.1, and save as otherwise expressly provided in these Terms of Service, SPS shall not be liable to Customer or its Affiliates or any of its or their respective officers, employees, contractors or agents (whether in contract, tort (including negligence) or otherwise, and howsoever arising):

10.3.1 for any damage or loss arising or attributable to any errors, inaccuracies or omissions in the Mandatory Documents as uploaded by Customer from time to time on to the Platform or otherwise disclosed to SPS;

10.3.2 for any loss or degradation of the availability or functionality of the Platform, or loss or corruption of any Customer Data, due to circumstances outside Customer’s reasonable control; or

10.3.3 in respect of any communications or disclosures made by SPS to third parties, or any actions or omissions taken or omitted to be taken by SPS, in accordance with Customer's instructions.

10.4 Subject to clause 10.1, neither SPS nor any Affiliate of SPS shall be liable to Customer or its Affiliates or any of its or their respective officers, employees, contractors or agents, whether in contract, tort (including negligence) or otherwise, for: (a) any loss (whether direct or indirect) of profits, business, goodwill, revenue, contracts, business opportunity, anticipated savings or data (including corruption of data and cost of restoration of data); or (b) any special, indirect, consequential or punitive loss, damage, cost or expense; in each case however arising under or in connection with these Terms of Service.

10.5 Subject to clauses 10.1 to 10.4 inclusive, the total and aggregate liability of SPS to (collectively) Customer and its Affiliates and all of its and their respective officers, employees, contractors and agents, whether in contract, tort (including negligence) or otherwise, arising under or in connection with these Terms of Service, shall be limited: (a) in respect of the UK Representative Duties, to the sum of £1,000,000 (one million pounds sterling); and (b) in all other respects, to the sum of £100,000 (one hundred thousand pounds sterling).

11 DURATION AND TERMINATION

11.1 If Customer pays Annual Fees, SPS shall provide the Service with effect from the Appointment Date and for successive calendar years thereafter subject to Customer’s payment of corresponding successive Annual Fees.

11.2 If Customer pays Monthly Fees, SPS shall provide the Service with effect from the Appointment Date and for successive calendar months thereafter subject to Customer’s payment of corresponding successive Monthly Fees.  At the time of obtaining payment of the first Monthly Fee, SPS or its nominated payment services provider shall obtain authorisation from Customer to charge recurring Monthly Fees for each successive month thereafter, on or around the same day of the month as the first Monthly Fee.  Customer may cancel such authorisation at any time.

11.3 In the event that Customer fails to pay a further Annual Fee or Monthly Fee prior to the expiry of the then-current annual or monthly subscription term, these Terms of Service shall automatically terminate upon the expiry of that subscription term.

11.4 Either Party may terminate these Terms of Service:

11.4.1 immediately upon giving notice in writing to the other Party, if the other Party commits a material breach of any of its obligations under these Terms of Service which breach is either not capable of remedy or which is capable of remedy but has not been remedied within 30 days after being notified in writing to do so (for which purposes, a breach shall be considered capable of remedy if the Party in breach can comply with the provision in question in all respects other than as to the time of performance, where time of performance is not of the essence);

11.4.2 immediately upon giving notice in writing to the other Party, if any Insolvency Event occurs, arises or is otherwise taken or occasioned with respect to the other Party; or

11.4.3 pursuant to clause 12.2.

11.5 Customer may terminate these Terms of Service at any time upon giving at least 30 days’ notice in writing to SPS.

11.6 SPS may terminate these Terms of Service:

11.6.1 upon giving at least 14 days’ notice in writing to Customer, in the event that SPS reasonably considers that (whether due to any ruling or guidance of any court, government agency or authority, or any change or clarification in or addition to Data Protection Law, or any professional legal advice received by SPS, or otherwise) that SPS, in its capacity as Customer’s Article 27 Representative, will or will be likely to bear any liability for breaches of applicable Data Protection Law by Customer or in respect of any claims, actions, enforcements or penalties arising from any such breaches;

11.6.2 immediately upon giving notice in writing to Customer in circumstances in which this sub-clause is triggered prior to the Appointment Date, or upon giving at least 14 days’ notice in writing to Customer in all other cases, in the event that SPS reasonably considers that the provision or continued provision by SPS of the Service to Customer will or may detrimentally affect the name or reputation of SPS or any Affiliate of SPS; or

11.6.3 in accordance with its rights to do so under any of clause 3.3 or clause 3.8 of these Terms of Service or paragraph 6.12 of the Data Processing Annex.

11.7 In the event of termination by SPS under any of clauses 3.8, 11.6.1, 11.6.2 or 12.2 of these Terms of Service, if Customer has an annual subscription for which Annual Fees have been pre-paid in full, SPS shall repay to Customer a proportion of those Annual Fees as corresponds to the unexpired period of time covered by such pre-paid Fees as at the effective date of termination (calculated on a linear basis and to the nearest day, by reference to the unexpired number of days as a proportion of the entire period to which the pre-paid Fees relate).  To the fullest extent permissible by applicable law, such repayment by SPS shall represent the total and aggregate liability of SPS to Customer in respect of termination under the relevant clause, and shall be in full and final settlement of any and all claims of Customer (whether arising in contract, negligence or otherwise, and whether present or future, or known or unknown) arising in respect of termination under such clause.

11.8 In the event of expiry or termination of these Terms of Service:

11.8.1 the UK Representative Appointment shall thereupon terminate, and SPS shall no longer be designated as Customer’s Article 27 Representative, and SPS shall cease the performance of all further UK Representative Duties;

11.8.2 SPS shall deactivate the Representative Email Address and shall no longer be responsible for forwarding to Customer any communications received via the Representative Email Address; and Customer shall promptly, and in any event within 7 days of the date of expiry or termination, amend its privacy notice and policies (and any other material issued to the Supervisory Authority or the general public) to remove reference to the Representative Email Address; and

11.8.3 all permissions and rights of access to the Platform granted to Authorised Users shall be irrevocably revoked, provided that the Authorised Users shall be entitled to access for not less than 7 days from the date of such expiry or termination solely for the purposes of downloading any Customer Data contained on it; and

11.8.4 SPS shall, in accordance with its data retention policies (and subject to the proviso in clause 11.8.3), delete all Customer Data on the Platform.

11.9 Termination or expiry of these Terms of Service for any reason, whether under this clause or not, shall be without prejudice to the accrued rights and liabilities of the Parties as at the date of such termination or expiry.

11.10 The provisions of clauses 3.5, 3.6, 5 to 10 inclusive, 11.7, 11.8, 11.9, 13 and 14, and any other provision of these Terms of Service which expressly or by implication is intended to remain in force after the expiry or termination of these Terms of Service, shall remain in full force and effect after such expiry or termination.

12 FORCE MAJEURE

12.1 SPS shall not be liable to Customer if it is prevented from or delayed in performing its obligations under these Terms of Service by any acts or events beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes, war or terrorism (or substantive threat thereof), riot or civil unrest, malicious damage or accident, unforeseeable failure of a third party provider or internet or telecommunications or power networks, unforeseeable breakdown of plant or machinery which is used or necessary for use by SPS in the performance of its obligations hereunder, fire, flood, storm, earthquake, subsidence, epidemic or pandemic, other natural physical disaster or catastrophe, or any ruling law order or direction of any court of competent jurisdiction or governmental or regulatory agency or authority in connection with any of the foregoing; in all cases provided that SPS shall promptly notify Customer in writing of such act or event and (if known) its anticipated duration, and provided that SPS shall furthermore use reasonable endeavours to mitigate the effect of any such act or event.

12.2 If SPS is prevented or constrained, due to any act or event referred to in clause 12.1, from continuing in its capacity as the Article 27 Representative of Customer, SPS shall promptly notify Customer in writing; and either Party may at any time thereafter terminate these Terms of Service on giving at least 7 days’ notice in writing to the other Party.

13 DISPUTE RESOLUTION

13.1 Save in respect of any applications for interim injunctive or other interim relief, disclosure or legal precedent pursuant to clause 13.4, neither Party may commence any legal action, claim or formal dispute resolution procedure in relation to any dispute or difference between them under or in connection with these Terms of Service (in this clause, a “Dispute”) until it has attempted to settle the Dispute in accordance with this clause.

13.2 The Parties shall attempt in good faith to resolve any Dispute as follows:

13.2.1 the Dispute may be referred in writing, by either Party on notifying the other Party, to the relevant day-to-day operational contacts of each of the Parties for resolution;

13.2.2 if the Dispute cannot be resolved by such managers of the Parties within 14 days after the Dispute has been so referred, then either Party may escalate the Dispute to senior executives (having board level or senior management responsibility) of each of the Parties (each a “Senior Executive”); and the Parties shall instruct their respective Senior Executives to liaise including by telephone or video conferences (as appropriate) as soon as reasonably possible thereafter and to use all reasonable endeavours to resolve such Dispute;

13.2.3 if and to the extent that the Senior Executives of the Parties have not resolved such Dispute within 28 days of escalation of such Dispute to them, then such Dispute may be referred by either Party to and finally determined by arbitration before an arbitration tribunal composed of a single arbitrator jointly appointed by the Parties or, failing agreement of the Parties, by the President for the time being (or any successor in office) of the Law Society of England and Wales.

13.3 Any reference of a matter to arbitration shall be determined in accordance with the rules of the London Court of International Arbitration, which shall apply to any arbitration under these Terms of Service wherever such arbitration shall be conducted.  London, England shall be the seat of the arbitration, but hearings may be held at such other places as the Parties and the arbitrator may agree or as the arbitrator shall deem appropriate after consultation with the Parties.  The Parties agree that the arbitrator so appointed (in accordance with this clause) shall have the discretion to award all costs relating to the arbitration proceedings in favour of the successful Party.

13.4 Nothing in this clause shall prevent either Party from instigating legal proceedings where an order for an interim injunction or other interim relief, disclosure or legal precedent is required, in which respect each of the Parties irrevocably submits to the non-exclusive jurisdiction of the English courts and waives any objection to proceedings in such courts on the grounds of venue or on the grounds that proceedings have been brought in an inappropriate forum.

14 GENERAL

14.1 In these Terms of Service, unless otherwise specified or the context otherwise requires: (a) words importing the singular only shall include the plural and vice versa, and words importing the whole shall be treated as including a reference to any part; (b) reference to these Terms of Service or to any other document is a reference to these Terms of Service or to that document as modified, amended, varied, supplemented, assigned, novated or replaced from time to time as permitted by the provisions of these Terms of Service; (c) reference to any provision of law is a reference to that provision as modified or re-enacted from time to time; (d) reference to any statutory provision includes a reference to any subordinate legislation made under that provision from time to time; and (e) reference to any statutory provision or legal term for any action, remedy, method of judicial proceeding, legal document, legal status, court, official or any legal concept, state of affairs or thing shall in respect of any jurisdiction other than England be deemed to include that which most closely approximates in that jurisdiction to the English statutory provision or legal term.

14.2 Any phrase in these Terms of Service introduced by the term "include", "including", "in particular" or similar expression will be construed as illustrative and will not limit the sense of the words preceding that term.  Headings used in these Terms of Service are for reference only and shall not affect its construction or interpretation.  In these Terms of Service, a reference to: (a) a “person” includes any individual, firm, company, corporation, body corporate, government, state or agency of trust or foundation, or any association, partnership or unincorporated body of two or more of the foregoing (whether or not having separate legal personality and wherever incorporated or established); and (b) "written" or "in writing" includes emails and faxes, but excludes all other content or messages sent by mobile phone or via any instant messaging or similar platform.

14.3 No variation of these Terms of Service shall be effective unless it is in writing and signed by the authorised representatives of each of the Parties.

14.4 No failure or delay by a Party to exercise any right or remedy provided under these Terms of Service or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

14.5 Unless expressly stated otherwise in these Terms of Service, the rights and remedies provided under these Terms of Service are in addition to, and not exclusive of, any rights or remedies provided by applicable law.

14.6 If any provision (or part of a provision) of these Terms of Service is found by any court of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force. If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the Parties.

14.7 These Terms of Service and the Confirmation of Appointment Email together constitute the entire agreement between the Parties with respect to their subject matter, and supersede and extinguish all previous discussions, correspondence, negotiations, agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to their subject matter.

14.8 Subject always to clause 10.1, each Party acknowledges that in entering into these Terms of Service it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in these Terms of Service. Each Party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in these Terms of Service.

14.9 Customer shall not, without the prior written consent of SPS, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under these Terms of Service.  SPS may at any time, upon giving notice in writing to Customer, assign all or any of its rights subject to its corresponding obligations under these Terms of Service to any Affiliate of SPS.

14.10 Nothing in these Terms of Service is intended to or shall operate to create a partnership or joint venture between the Parties.

14.11 Any Affiliate of SPS may rely upon and/or enforce any provision of these Terms of Service which (expressly or otherwise) confers a benefit upon them.  Save for the foregoing, these Terms of Service do not create any right or benefit enforceable by any person not a party to it, and the Contracts (Rights of Third Parties) Act 1999 is accordingly excluded.

14.12 Any notice permitted or required to be given under these Terms of Service must be in writing and sent either by email or by international courier.  For these purposes all email notices from Customer to SPS shall be sent to [email protected], and all email notices from SPS to Customer shall be sent to the contact email address of Customer as identified in the Confirmation of Appointment Email or such other email address as notified to SPS from time to time.  Any notices sent by international courier shall be addressed to, in the case of noticed sent to SPS, its registered office, and in the case of Customer, its notified address as identified in the Confirmation of Appointment Email or such other address as notified to SPS from time to time.  A notice sent by courier shall be deemed to have been received when delivered (or if delivery is not during the hours of 0900 to 1700 (local time) on a Business Day, at 0900 (local time) on the first Business Day following delivery).  A notice sent by email shall be deemed to have been received at the time of transmission (as shown by the delivery receipt obtained by the sender).  This sub-clause shall not apply to the service of any proceedings or other documents in any legal action or claim, in respect of which the relevant service requirements prescribed by the court or arbitral body in question shall instead apply.

14.13 These Terms of Service and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.

ANNEX 1: THE UK REPRESENTATIVE DUTIES

SPS shall perform and discharge the duties pursuant to its appointment as Customer’s Article 27 Representative, in which respect it shall act as Customer’s agent.

1 Authority Communications

For these purposes an “Authority Communication” means any enquiry, request, notice, order or other communication received from the Supervisory Authority, including any information notice or order, enforcement notice or penalty notice.

(a) SPS shall promptly forward to Customer all Authority Communications, and shall promptly respond in writing to the Supervisory Authority in respect of each such Authority Communication by way of a holding reply acknowledging receipt and confirming its status as Customer’s Article 27 Representative.

(b) SPS shall thereafter promptly and faithfully convey all responses, requests, queries and other communications required by Customer to made by it to the Supervisory Authority in respect of the subject-matter of the Authority Communication (and any related matters).  In the absence of a substantive response from Customer, SPS shall be under no obligation to respond substantively to any Authority Communications or otherwise to progress any dialogue with the Supervisory Authority.

(c) Unless requested otherwise by Customer, SPS shall act as a primary point of contact between Customer and the Supervisory Authority for all written communications relating to the subject-matter of the Authority Communication.

2 Data Subject Communications

For these purposes, a “Data Subject Communication” means any enquiry, claim or other communication from any Data Subject or any person acting on behalf of any such Data Subject, including any data subject access request.

(a) SPS shall promptly forward to Customer all Data Subject Communications, and shall promptly respond in writing to the relevant Data Subject in respect of each such Data Subject Communication by way of a holding reply acknowledging receipt and confirming its status as Customer’s Article 27 Representative.

(b) SPS shall thereafter promptly and faithfully convey all responses, requests, queries and other communications required by Customer to made by it to the relevant Data Subject in respect of the subject-matter of the Data Subject Communication.  In the absence of a substantive response from Customer, SPS shall be under no obligation to respond substantively to any Data Subject Communications or otherwise to progress any dialogue with the relevant Data Subject.

(c) Unless requested otherwise by Customer, SPS shall continue thereafter to act as a primary point of contact with each such Data Subject for all subsequent written communications relating to the subject-matter of the relevant Data Subject Communication.

3 Maintenance of Record of Processing Activities: Article 30 of the UK GDPR

(a) SPS shall securely hold and maintain on the Platform a copy of Customer’s then-current Record of Processing Activities (as uploaded by Customer from time to time), if and for so long as Customer is required to maintain the same under the UK GDPR.

(b) SPS shall make the Record of Processing Activities available to the Supervisory Authority, upon request of the Supervisory Authority.

4 Co-operation with the Supervisory Authority: Articles 31 and 58 of the UK GDPR

(a) SPS shall co-operate with the Supervisory Authority, upon request of the Supervisory Authority, in the performance by the Supervisory Authority of its statutory tasks.

(b) SPS shall promptly respond to any and all orders of the Supervisory Authority (pursuant to its powers under Article 58 of the UK GDPR) to provide any information that the Supervisory Authority requires for the performance of its statutory tasks.

ANNEX 2: DATA PROCESSING ANNEX

1 Definitions.  The terms "Process", "Controller", "Processor", "Personal Data" and "Data Subject" shall have the same meaning given to them (or terms used to express similar concepts) in the applicable Data Protection Law.  The term “Standard Contractual Clauses” shall mean clauses in the form of, as applicable: (a) the standard contractual clauses (controller to processor) for the transfer of personal data to third countries as set out in the Annex to Commission Decision 2010/87/EU; or (b) the standard contractual clauses (controller to controller) for the transfer of personal data to controllers established in third countries as set out in Annex to Commission Decision 2004/915/EU; or (c) in each case such replacement or alternative clauses as may be published from time to time pursuant to a subsequent decision by the European Commission.

2 General Compliance.  Each Party shall comply with its respective obligations under the Data Protection Law.

3 Nature and Purpose of Processing.  SPS may collect, store and otherwise Process Personal Data on Customer's behalf in the course of and for the purposes of the provision of the Service, as described in these Terms of Service.

4 Types of Personal Data.  The types of Personal Data provided to SPS by Customer, or otherwise Processed by SPS in connection with the performance of its obligations under the Terms of Service, may include the following categories of data in respect of UK Data Subjects: name, email address, telephone number, data relating to any request, query, claim or other communication made by UK Data Subject and received by SPS, and any response, analysis or other processing considerations provided by Customer (as relayed via SPS pursuant to the Service) concerning such request, query, claim or communication.

5 Special categories of Personal Data.   Customer shall not (and shall not permit its Authorised Users to) upload to the Platform, or configure the Platform by reference to, any special category of Personal Data (within the meaning of the UK GDPR), namely: racial or ethnic origin; political opinions; religious or philosophical beliefs; trade union membership; genetic or biometric data; health data; sex life or sexual orientation, without obtaining SPS’s express prior written agreement.

6 Data Processing Provisions.   If and to the extent that SPS is required to Process any Personal Data on Customer's behalf when performing its obligations under the Terms of Service, the Parties hereby agree that Customer shall be and remain the Controller and SPS shall be a Processor in respect of such Personal Data, and accordingly (and in any case):

6.1 SPS shall Process such Personal Data only in accordance with the lawful documented instructions given by Customer from time to time, provided that: (a) where such instructions necessarily prevent, delay or restrict SPS from providing the Service or require modification of the nature or extent of the Service, then SPS shall not be liable in respect of such prevention, delays or restrictions and shall be entitled to make any such modifications to the Service without incurring any additional liability to Customer; and (b) where such instructions in SPS’s opinion would require or result in any non-compliance by SPS of any Data Protection Law or any other applicable law, SPS shall promptly notify Customer and Customer shall retract and restate such instructions.  Such notification by SPS shall not constitute legal advice and Customer may not rely upon such notification in connection with its compliance with Data Protection Law.

6.2 SPS shall only Process such Personal Data as strictly necessary in the provision of the Service and not for any other purpose.

6.3 For the avoidance of doubt, the continued use by Customer of the Service shall constitute documented instructions for SPS to Process the Personal Data listed in paragraph 4 above, for the purpose of providing the Service, including undertaking the Processing activities listed in paragraph 3 above.

6.4 SPS shall implement and maintain appropriate technical and organisational measures, to ensure an appropriate level of security in respect such Personal Data, against accidental, unauthorised or unlawful loss, destruction, alteration, disclosure of or access to such Personal Data; such measures shall be implemented with regard to: (a) encryption of Personal Data; (b) back-up and disaster recovery arrangements; (c) the ability to ensure ongoing confidentiality, integrity, availability and resilience of the IT infrastructure and environment; and (d) the regular testing and evaluation of the effectiveness of such measures.

6.5 SPS shall limit access to such Personal Data to those of its authorised personnel who need access to it in order to meet SPS’s obligations under the Terms of Service and shall ensure that all such personnel are bound by appropriate obligations of confidentiality.

6.6 Upon termination of the Terms of Service, SPS shall delete all such Personal Data in accordance with SPS’s obligations as set out in the Terms of Service.

6.7 SPS shall notify Customer without undue delay: (a) after becoming aware of any accidental, unauthorised or unlawful destruction, loss, alteration, or unauthorised disclosure of, or access to Customer Data; or (b) in accordance with its UK Representative Duties, if it receives from any Data Subject whose Personal Data forms part of Customer Data (i) any communication seeking to exercise rights conferred on the Data Subject by the Data Protection Law, or (ii) any complaint or any claim for compensation arising from or relating to the processing of Customer Data.

6.8 SPS shall, at the cost and expense of Customer, assist Customer in respect of (a) any requirement of Customer to notify any Personal Data breach to the Supervisory Authority, and/or (b) any data protection impact assessment which Customer may from time to time be required to undertake in accordance with Data Protection Law, and/or (c) (where appropriate, taking into account the nature of the Processing) in respect of Customer's obligation to respond to requests of any Data Subject (exercising his or her rights as such) whose Personal Data forms part of Customer Data.

6.9 SPS shall, upon reasonable notice in writing, make available to Customer or grant to Customer and its auditors and agents, a right of access to and to take copies of any information or records kept by SPS pursuant to this Data Processing Annex, solely to the extent necessary to demonstrate SPS’s compliance with the Data Protection Law and provided always that this clause shall not oblige SPS to disclose any confidential information including information relating to any other customer or contact.

6.10 Save as otherwise agreed by the Parties, and save for transfer of Personal Data to Customer, SPS hereby agrees that it shall not transfer any Personal Data to any country outside the United Kingdom or the European Economic Area without the prior written consent of Customer (unless legally required to do so by any applicable law, in which circumstances SPS shall inform Customer of that legal requirement before the transfer unless those laws prevent it doing so).

6.11 Customer hereby authorises SPS to disclose Personal Data to those sub-processors of SPS listed as Required Sub-Processors in the Sub-Processor Schedule, including (where applicable) sub-processors in countries outside the United Kingdom or European Economic Area.

6.12 Customer hereby grants to SPS a general authorisation to appoint additional or replacement sub-processors under the Terms of Service, provided that SPS shall: (a) notify Customer by email, providing all requisite information concerning such sub-processor and the processing to be undertaken by it; (b) update the Sub-Processor Schedule to reflect such new sub-processor, (c) provide Customer with a reasonable opportunity to object to the Processing of Customer Data by such new sub-processor (provided that in circumstances of such objection by Customer the Parties shall discuss and endeavour to agree upon any alternative measures to enable such Processing, and that if no alternative measures can be reasonably agreed SPS may terminate these Terms of Service upon giving at least 7 days’ notice in writing to Customer), and (d) ensure that such sub-processor is bound by equivalent contractual terms as those set out in this paragraph 6.

7 Customer obligations.  Customer shall ensure:

7.1 it is entitled to transfer any relevant Personal Data to SPS, such that SPS may lawfully use, Process and transfer such Personal Data in accordance with the Terms of Service on Customer's behalf; and

7.2 all relevant Data Subjects have been informed of such use, Processing, and transfer as required by all applicable Data Protection Law.

8 Data export.  This clause shall apply (a) in respect of the import by SPS from Customer of Personal Data in circumstances in which Customer is based in the European Economic Area, and the United Kingdom is not the subject of an adequacy ruling (within the meaning of Article 45 of the General Data Protection Regulation 2016); and/or (b) in respect of the export by SPS to Customer of Personal Data of UK Data Subjects and/or Personal Data of Authorised Users in the course of the UK Representative Duties.  In such circumstances:

8.1 Customer and SPS hereby agree to the applicable Standard Contractual Clauses which are deemed incorporated herein, in respect of which the Parties are deemed to have accurately and fully completed all relevant details (including the appendices to the Standard Contractual Clauses) in a manner consistent with these Terms of Service and (as applicable) their respective privacy policies, and provided that all optional indemnifications in any such Standard Contractual Clauses are deemed to be excluded;

8.2 the Parties hereby undertake to execute any replacement or updated Standard Contractual Clauses and/or additional provisions thereto as may be required from time to time in order for each of them to comply with their respective continuing obligations under applicable Data Protection Law;

8.3 in addition, and where applicable, SPS shall upon Customer’s written request provide reasonable cooperation and assistance (at Customer’s cost and expense) in relation to any assessment by Customer of the laws and practices of the United Kingdom insofar as they affect (or may affect) processing of Customer’s Personal Data by SPS and which interfere (or may interfere) with the rights of any Data Subjects of such Customer’s Personal Data; and if the Customer reasonably concludes following such assessment, that additional protections are required to supplement the applicable Standard Contractual Clauses in order to ensure that the protections afforded to such Data Subjects of Customer’s Personal Data are essentially equivalent to the guarantees provided under the General Data Protection Regulation 2016, then SPS shall upon the Customer’s written request enter into supplemental provisions in a form as reasonably agreed between the Parties (which once agreed shall be incorporated into and form a part of these Terms of Service).

SUB-PROCESSOR SCHEDULE TO DATA PROCESSING ANNEX

SPS may update the sub-processors listed in this schedule in accordance with the procedure in paragraph 6.12 of the Data Processing Annex.

Required Sub-Processors

Customer authorises SPS to use the following sub-processors in the provision of the Service: 

Sub-processor	Data they process	Location of processing
Mimecast Ltd.	(Email security): Contents of emails to/from UK Data Subjects or Customer contacts	UK
HighQ Solutions Ltd.	(Platform hosting provider): Data contained on the Platform, including emails to/from UK Data Subjects and Customer contacts; Customer account data	UK
Assured Data Protection Ltd.	(Backup services): Backup copies of emails to/from UK Data Subjects or Customer contacts	UK
G3G UK Ltd.	(ERP support and maintenance): Contact details of Customer contact contained in accounts & billing system	UK
KMP Associates Ltd.	(Website support): Contact details of Customer contacts	UK

In addition to the above, Customer authorises SPS to disclose Personal Data to Shoosmiths LLP or any other Affiliate of SPS where this is necessary for the provision of the Service.  Shoosmiths LLP and the other Affiliates of SPS are based in the United Kingdom and as such outside the European Economic Area.   SPS shall not disclose Personal Data to such Affiliates unless such Affiliates are bound by equivalent contractual terms as those set out in the Data Processing Annex.

END OF TERMS OF SERVICE

(18 Nov 2020)