REPUTATION.COM (UK) LTD. PROFESSIONAL SERVICES STANDARD TERMS OF SERVICE
(effective Feb. 4, 2019)
These Professional Services Standard Terms of Service (“Pro Services Terms”) govern the provision of all professional services (“Pro Services”) described in the Order Form or other ordering document (the “Order Form”) by Reputation.com (UK) Ltd. (the “Company”) to its customer (the “Customer”). These Pro Services Terms and the related Order Form shall collectively be referred to herein as the “Agreement”.
1. Time and Materials Agreement. If the attached Order Form states that the Pro Services are being provided on a time and materials basis, then the cost of the Pro Services will be calculated as the number of hours worked times the billing rate of the Pro Services provider. The Pro Services fees set forth in such Order Forms are simply good-faith estimates of the number of hours of work required to complete a project or set of tasks, and are for Customer’s budgeting and Company’s resource-scheduling purposes. The estimate of fees are in no way a warranty or guarantee that a specific project or a set of specified tasks will be completed for the estimated amounts. The actual hours worked to complete the project or tasks may be higher or lower. During the Term of the Services, Provider will periodically update Customer on the status of the Pro Services and the fees that have been accrued to date. The Company will provide notice to Customer if, during the provision of services, the number of hours worked or total fees incurred is anticipated to exceed or has exceeded the estimate.
2. Fixed Price Agreement. If the attached Order Form states that the Pro Services are being provided on a fixed price basis, then the specific scope of Pro Services that is described in the Order Form shall be provided and completed for the stated fee in the time frame set forth in the Order Form.
3. Scope of Work. The scope of work set forth in the Order Form and any requirements and/or deliverables included shall be during a scoping process that will be jointly conducted by the parties (“Scope of Work”). The Scope of Work shall consist of only the work, requirements and/or deliverables that are specified in writing in the Order Form. The written Scope of Work shall control and shall supersede all prior or contemporaneous, written or oral discussions, proposals, product demonstrations or negotiations. Any requests by Customer for Pro Services that are outside of the Scope of Work will be performed pursuant to a written change order signed by both parties.
4. Payment of Fees and Expenses for Time and Materials Agreements. Where the Pro Services are provided on a time and materials basis, the Company shall submit itemized monthly invoices to Customer setting forth the fees incurred in the prior month, including the number of hours worked and the hourly rates. Payment of each invoice is due thirty (30) days from the date of invoice.
5. Payment of Fees and Expenses for Fixed Fee Agreements. Where the Pro Services are being provided on a fixed fee basis, unless otherwise provided in Order Form, the total fees for the Pro Services shall be invoiced upon execution of the Agreement. Payment of each invoice is due thirty (30) days from the date of invoice.
6. Taxes and Late Payments. Customer shall be responsible for paying any applicable sales or service taxes (including VAT) related to this Agreement. If any payment is not received by its due date, Customer shall be assessed interest on the overdue amount at the rate of 1.0% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid. If any amount owed by Customer under this Agreement is thirty (30) or more days overdue, the Company may, without limiting other rights and remedies, suspend Pro Services until such time as all past due amounts are paid in full. Company will provide at least ten (10) days’ prior notice that Customer’s account is overdue before suspending Pro Services.
7. Performance and Place of Performance. The Company represents and warrants that the Pro Services will be provided in a professional and workmanlike manner consistent with the standards in the industry for similar services. All Pro Services will be performed remotely from the Company offices unless otherwise specified in writing. If Pro Services are required to be performed at a Customer location, then the Pro Services shall be charged by the day with a minimum charge of eight (8) hours per day. All reasonable out-of-pocket and travel expenses required to be incurred by Company in order to perform the Pro Services shall be reimbursed by Customer, provided that such expenses have been approved in advance in writing by Customer. If airline travel is required, all flights will be booked as refundable tickets unless Customer provides other instructions in writing.
8. Cooperation. Customer will provide reasonable, diligent and good faith cooperation to Company to enable performance of the Services. The cooperation shall include, but not be limited to: (a) allocating sufficient resources and timely performing any tasks reasonably necessary to enable Reputation.com to perform its obligations under the Agreement; (b) timely delivering any materials and other obligations required under this Agreement; (c) timely responding to Company’s inquiries related to the consulting services; (d) assigning project manager for this Agreement to serve as a primary point of contact for Company; (e) actively participating in scheduled project meetings; (f) providing in a timely manner and at no charge to Company, access to Customer’s appropriate and knowledgeable employees and agents, continuous administrative access to Customer’s online service account, and coordination of onsite, online and telephonic meetings all as reasonably required by Company; and (g) providing complete, accurate and timely information, data and feedback all as reasonably required.
9. Time Management. Company understands realizes that Customer’s time is valuable, and Customer realizes that Company’s time spent in connection with the Pro Services will incur fees. Customer and Company will therefore each endeavor to manage the use of the other’s time in a reasonable and effective manner.
10. Delays. Any delays in the performance of the Pro Services caused by Customer’s actions or inaction may result in additional charges. Company may terminate the Agreement on ten (10) days written notice to Customer if such delays renders Company unable to perform the Pro Services for a period of more than thirty (30) days
11.1 Term of Engagement. The term of the Pro Services shall be stated in the Order Form (the “Term”).
11.2 Termination for Convenience. An agreement for Pro Services may be terminated by either party for convenience by providing thirty (30) days written notice to the other Party. In the event of such termination by either Party, the Customer shall be liable to pay for the Pro Services actually performed and expenses incurred prior to the effective date of the termination. In the event the Customer terminates this Agreement after travel arrangements have been made, the Customer shall be responsible for all travel expenses that cannot be cancelled and/or any cancellation fees assessed to Company.
11.3 Termination for Breach. Either party may terminate this Agreement at any time upon written notice to the other if the other: (a) is in material breach of this Agreement and the breaching party fails to remedy the breach within thirty (30) days after receiving written notice identifying the material breach to be cured; or (b) is subject to an order or a resolution for its liquidation, administration, winding-up or dissolution (otherwise than for the purposes of a reconstruction), or has an administrative or other receiver, trustee, liquidator, administrator or similar officer appointed over all or any substantial part of its assets.
11.4 Effect of Termination. Upon termination (a) the Company shall stop performing all Pro Services, (b) the Customer shall immediately pay any fees due through the date of termination, and/or if Customer has prepaid for Pro Services not yet performed, the Company shall refund any amounts due for such services not yet performed, and (c) each party, shall, upon receipt of a written request from the other party, destroy or return all Confidential Information.
12.1 Definition of Confidential Information. As used herein, Confidential Information (“CI”) means all confidential information disclosed by a party (“Disclosing Party“) to the other party (“Receiving Party“), whether orally or in writing, that is designated as confidential or that reasonably should be understood as confidential given the nature of the information and the circumstances of disclosure. CI shall include, without limitation, technical product information, product designs, techniques, methods, or strategies used in connection with the Services, user names, passwords and other log-in information, Company pricing information, the specific terms of this Agreement, and all Customer Data. “Customer Data” means any personally identifiable information that is provided by Customer that would typically be provided in the normal course of the Services. As between Company and Customer, all Customer Data is Customer’s property. Customer grants Company a non-exclusive, worldwide, royalty-free license to process, reproduce, display, copy, communicate, and otherwise use Customer Data solely to the extent necessary to perform its obligations under the Agreement. CI shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) is received from a third party without breach of any obligation owed to the Disclosing Party; or (iv) was independently developed by the Receiving Party.
12.2 Protection of Confidential Information. The parties each agree to collect, store, and use all CI provided to it or obtained by it as a result of this Agreement, in a manner that: (i) protects the security, confidentiality and integrity of the CI; (ii) ensures against reasonably anticipated threats or hazards to the security or integrity of the CI; and (iii) protects against unauthorized access to or use of the CI that could result in harm or inconvenience to the other party. Each party shall use at least the same degree of care in protecting the CI as the party uses to protect its own CI of like kind (but in no event less than reasonable care). The parties agree that CI shall not be used for any purpose outside the scope of this Agreement and that neither party shall disclose the any CI to any third party without the other party’s prior written consent other than to: (i) its legal counsel and accountants; (ii) to potential investors, lenders, purchasers of either party’s business, or underwriters in connection with their due diligence in future financings, acquisitions mergers or public offerings of either party; or (iii) as required by law.
13. Insurance. Company, at its sole cost and expense, will maintain general liability, errors and omissions and cyber security insurance with coverage limits of at least two (2) million dollars. The Company shall provide a certificate of such insurance upon request.
14. Limitation on Liability. SUBJECT TO CLAUSE 15, IN NO EVENT SHALL EITHER PARTY EVER BE LIABLE TO THE OTHER UNDER OR IN CONNECTION WITH THIS AGREEMENT, WHETHER BASED ON A CLAIM OR ACTION OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY, OR OTHER TORT, BREACH OF ANY STATUTORY DUTY, OR CLAIM FOR CONTRIBUTION, OR OTHERWISE, FOR ANY: (I) INDIRECT, SPECIAL, PUNITIVE, CONSEQUENTIAL, OR INCIDENTAL LOSS OR DAMAGES, OR (II) ANY LOST PROFITS, LOSS OF GOODWILL, LOSS OF OR CORRUPTION OF DATA, LOSS OF REVENUE, LOSS OF ANTICIPATED SAVINGS, OR LOSS OF BUSINESS (IN EACH CASE, WHETHER DIRECT OR INDIRECT), EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LIABILITY OR DAMAGE. The Company’s maximum liability arising out of or in any way connected to this Agreement shall not exceed the fees paid by Customer pursuant to the Agreement.
15. Liability not Excluded or Limited. Nothing in this Agreement will in any way exclude or limit a party’s liability to the other party for losses or damages arising from: (i) death or personal injury caused by that party’s negligence; (ii) fraud or fraudulent misrepresentation; or (iii) any other matter for which it would be illegal to exclude or attempt to exclude or limit its liability.
16. Arbitration, Forum and Governing Law. Any claim, dispute or controversy of whatever nature (“Claim”) arising out of or relating to this Agreement shall be resolved by binding arbitration. The arbitration shall be conducted by a single arbitrator selected from and administered by the San Francisco, California office of JAMS, in accordance with its Comprehensive Arbitration Rules. The parties agree that all proceedings prior to the final arbitration hearing shall be handled via email, telephone or videoconference, but the final arbitration hearing shall be held in San Francisco, California. This Agreement shall be governed by California law. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. Each party shall bear its own attorneys’ fees and costs arising out of the arbitration, and shall pay an equal share of the fees and costs of the Arbitrator and JAMS. Judgment on the award may be entered by any court of competent jurisdiction.
17. Anti-bribery. Each party must: (a) comply with all applicable laws, statutes, regulations and codes relating to anti-bribery and anti-corruption including the UK’s Bribery Act 2010, the OECD Convention on Combating Bribery in International Business Transactions, the Foreign Corrupt Practices Act of the United States, and similar multilateral anti-bribery agreements (“Bribery Requirements”); (b) have in place and maintain an anti-bribery policy (“Bribery Policy”), or if none is in place as at the date of this Agreement, implement a Bribery Policy promptly following entry into this Agreement; (c) enforce compliance with the Bribery Requirements and the Bribery Policy where appropriate; and (d) promptly report to the other party any request or demand for any undue financial or other advantage of any kind received by it in connection with the performance of this Agreement to the extent permitted by applicable law. Each party must, if requested, provide the other party with any reasonable assistance, at the other party’s cost, to enable the other party to perform any activity required by any relevant government or agency in any relevant jurisdiction for the purpose of compliance with the Bribery Requirements.
19. General Provisions
19.1 Notices. Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery; (ii) the second business day after mailing by overnight carrier; (iii) the first business day after sending by confirmed facsimile or email (provided email shall not be sufficient for notices of termination). All notices shall be sent to the addresses set forth in the applicable Order Form, which may be updated from by written notice to the other party.
19.2 Waiver and Severability. No forbearance or delay by either party in enforcing its rights shall prejudice or restrict the rights of that party, and no waiver of any such rights or of any breach of any contractual terms shall be deemed to be a waiver of any other right or of any later breach. If any provision of this Agreement is found to be contrary to law by a court of competent jurisdiction, such provision shall be of no force or effect; but the remainder of this Agreement shall continue in full force and effect. The parties shall meet and confer in good faith with respect to any provision found to be in contravention of the law in order to agree on a substitute provision.
19.3 Amendment and Assignment. Any amendment, waiver or variation of this Agreement shall not be binding on the parties unless set out in writing and signed by or on behalf of each of the parties. Neither party assign this Agreement or any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party; provided that either party may, without consent, assign this to any purchaser of all or substantially all of its assets or equity or to any successor by way of merger, consolidation or similar transaction.
19.4 Relationship of the Parties. The relationship of the parties is that independent contractors, and neither party is an agent or partner of the other. Neither party has the authority to act in the name or on behalf of or otherwise to bind the other party.
19.5 Entire Agreement. This Agreement, including all exhibits and addenda hereto, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. To the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or addendum executed by both parties, the terms of such exhibit or addendum shall prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in any document not executed by both parties (including any Customer purchase order) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void. This Agreement may be executed in counterparts. Facsimile, .pdf and electronic signatures shall all be binding.
DATA PROCESSING ADDENDUM
This Data Processing Addendum (the “Addendum”) is incorporated into the Service Agreement (“Agreement”) and applies in respect of the provision of the Services to the Client if the Client is subject to the GDPR, only to the extent the Client is a Controller of Client Personal Data (as defined below) that Company Processes on behalf of the Client. The Addendum is intended to satisfy the requirements of Article 28(3) of the GDPR and, prior to the date on which the GDPR takes effect, the requirements of Article 17(3) of the EU Data Protection Directive (95/46/EC). This Addendum shall be effective for the term of the Agreement.
2.1 For the purposes of the Addendum:
- “Client Personal Data” means Personal Data submitted, stored, uploaded or otherwise provided by Client through its use of the Services, in respect of which the Client is the Controller, as further described under Section 3 of this Addendum;
- “GDPR” means the General Data Protection Regulation (EU) 2016/679, together with any national implementing laws in any Member State of the European Union, as amended, repealed, consolidated or replaced from time to time; and
- “Personal Data”, “Data Subject”, “Data Protection Authority”, “Data Protection Impact Assessment”, “Process”, “Processor” and “Controller” will each have the meaning given to them in the GDPR.
2.2 Capitalized terms not otherwise defined herein shall have the meaning given to them in the Agreement.
3. Details Of The Processing
3.1. Categories of Data Subjects. This Addendum applies to the Processing of Client Personal Data relating to Client’s customers or patients or prospects and other end users, the extent of which is determined and controlled by Client in its sole discretion.
3.2 Types of Personal Data. Client Personal Data includes the following types of Personal Data: names, title, position, contact information (including email addresses and phone numbers), purchase or services information, and other data, the extent of which is determined and controlled by Client in its sole discretion.
4. Processing Of Client Personal Data
4.1 Each of the Client and the Company will comply with their respective obligations under the GDPR, to the extent applicable to the Processing of any Client Personal Data in the context of the provision of the Services.
4.2 Company will only Process Client Personal Data as a Processor on behalf of and in accordance with the Client’s prior written instructions and for no other purpose. Company is hereby instructed to Process Client Personal Data to the extent necessary to enable Company to provide the Services in accordance with the Agreement.
4.3 If for any reason (including a change in applicable law) Company becomes unable to comply with any instructions of the Client regarding the Processing of Client Personal Data, Company will promptly:
- notify the Client of such inability, providing a reasonable level of detail as to the instructions with which it cannot comply and the reasons why it cannot comply, to the greatest extent permitted by applicable law; and
- cease all Processing of the affected Client Personal Data (other than merely storing and maintaining the security of the affected Client Personal Data) until such time as the Client issues new instructions with which Company is able to comply (and if this provision applies, Company will not be liable to the Client under the Agreement in respect of any inability to perform the Services until such time as the Client issues new instructions).
- As a part of providing the Services, Company may transfer, store and process Client Personal Data in the United States, where Company’s parent Reputation.com, Inc. is established. Reputation.com, Inc. participates in and has certified its compliance with the EU-U.S. Privacy Shield Framework as set forth by the U.S. Department of Commerce with respect to the processing of Client Personal Data that is transferred from the EU to the U.S. in accordance with the terms of this Addendum.
5.1 Company will ensure that any person whom Company authorises to Process Client Personal Data on its behalf is subject to confidentiality obligations in respect of that Client Personal Data.
6. Security Measures
6.1 Company will implement appropriate technical and organisational measures to protect against accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to Client Personal Data.
7. Appointment Of Sub-Processors
7.1 Client authorises Company to appoint sub-Processors to perform specific services on Company’s behalf which may require such sub-Processors to Process Client Personal Data. If Company engages a sub-Processor to Process any Client Personal Data, it will:
- inform Client of any intended changes concerning the addition or replacement of such sub-Processors and Client will have an opportunity to object to such changes on reasonable grounds within [fifteen (15) business days] after being notified. If the parties are unable to resolve such objection, either party may terminate the Agreement by providing written notice to the other party;
- keep the Client informed if there is any change to the role or status of the sub-Processor; and
- enter into a binding written agreement with the sub-Processor that imposes on the sub-Processor the same obligations that apply to Company under the Addendum.
7.2 For the purposes of this provision, the Company’s parent Reputation.com, Inc. based in the United States is deemed to have been authorised to Process Client Personal Data.
8. Data Subject Rights
8.1 Company will, at the Client’s request and subject to the Client paying all of Company’s fees at prevailing rates, and all expenses, provide the Client with assistance necessary for the fulfilment of the Client’s obligation to respond to requests for the exercise of Data Subjects’ rights. Client shall be solely responsible for responding to such requests.
9. Security Breaches
9.1 Company will:
- notify the Client as soon as practicable after it becomes aware of any loss, compromise or any unauthorised access to, or breach of the security of, any Client Personal Data; and
- at the Client’s request and promptly provide the Client with all reasonable assistance necessary to enable the Client to notify relevant security breaches to the relevant Data Protection Authorities and/or affected Data Subjects.
10. Data Protection Impact Assessment; Prior Consultation
10.1 Company will, at the Client’s request provide the Client with reasonable assistance to facilitate:
- conduction of Data Protection Impact Assessments if the Client is required to do so under the GDPR; and
- consultation with Data Protection Authorities, if the Client is required to engage in consultation under the GDPR,
in each case solely to the extent that such assistance is necessary and relates to the Processing by the Company of the Client Personal Data, taking into account the nature of the Processing and the information available to the Processor.
11. Deletion of Client Personal Data
11.1 Company will permanently and securely delete (or, at the election of the Client, return, in such format as Company may reasonably elect and subject to the Client paying all of Company’s fees at prevailing rates, and all expenses, for transferring the Client Personal Data to such format) all Client Personal Data in the possession or control of Company or any of its sub-Processors, within 90 days after Company ceases to provide the Services, unless the applicable law of the EU or of an EU Member State requires otherwise. Company will procure that its sub-Processors do likewise.
12.1 The Company will, at Client’s request provide the Client with all information necessary to enable the Client to demonstrate compliance with its obligations under the GDPR, and allow for and contribute to audits, including inspections, conducted by the Client or an auditor mandated by the Client, to the extent that such information is within Company’s control and Company is not precluded from disclosing it by applicable law, a duty of confidentiality, or any other obligation owed to a third party.