Terms of Service ("Terms")
Last updated: 2021
Please read these Terms of Service ("Terms", "Terms of Service") carefully before using the https://agencybud.com website (the "Service") operated by GoJeoPty Ltd ("us", "we", or "our") or any of our websites including, but not limited to http://repwarn.com, http://datajeo.com, http://engagesuperbot.com, http://gojeo.com, http://waltbayliss.com, http://umo.io, http://coldreach.com, https://SocialPostMagic.com
GoJeo Pty Ltd
Your access to and use of the Service is conditioned on your acceptance of and compliance with these Terms. These Terms apply to all visitors, users and others who access or use the Service. You warrant that you are at least 18-years-old and you are legally capable of entering into binding contracts. If you are under 18-years-old, you warrant that you have obtained consent from your parent or guardian and they agree to be bound by these Terms on your behalf.
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These Terms of Service set out the terms under which Subscriptions are sold by Us to customers through this website, www.coldreach.com (“Our Site”). Please read these Terms of Service carefully and ensure that you understand them before purchasing a Subscription. You will be required to read and accept these Terms of Service when ordering a Subscription. If you do not agree to comply with and be bound by these Terms of Service, you will not be able to purchase a Subscription. These Terms of Service, as well as any and all Contracts are in the English language only.
PART 1 – TERMS OF SERVICE
1. Definitions and Interpretation
1.1 In these Terms of Service, unless the context otherwise requires, the following expressions have the following meanings:
2. Information About Us
2.1 Our Site is owned and operated by GoJeo Software Pty a limited company registered in Australia under company number 12609670215 whose registered office is at PO Box 3220, Doncaster East VIC, Australia 3109 ].
3. Access to and Use of Our Site
3.1 Access to Our Site is free of charge, Access to the APP and software is paid.
3.2 It is your responsibility to make any and all arrangements necessary in order to access Our Site.
3.3 Access to Our Site is provided “as is” and on an “as available” basis. We may alter, suspend or discontinue Our Site (or any part of it) at any time and without notice. We will not be liable to you in any way if Our Site (or any part of it) is unavailable at any time and for any period.
4.1 Certain parts of Our Site (including the ability to purchase Services from Us) may require an Account in order to access them.
4.2 You may not create an Account if you are under 18 years of age.
4.3 When creating an Account, the information you provide must be accurate and complete. If any of your information changes at a later date, it is your responsibility to ensure that your Account is kept up-to-date.
4.4 We recommend that you choose a strong password for your Account. It is your responsibility to keep your password safe. You must not share your Account with anyone else. If you believe your Account is being used without your permission, please contact Us immediately at support@gojeo.freshdesk.com . We will not be liable for any unauthorised use of your Account.
4.5 You must not use anyone else’s Account.
4.6 Any personal information provided in your Account will be collected, used, and held in accordance with your rights and Our obligations under the law, as set out in Clause 24.
4.7 If you wish to close your Account, you may do so at any time. Closing your Account will result in the removal of your information. Closing your Account will also remove access to any areas of Our Site requiring an Account for access. Closing your Account should be done using the facility provided within your Account.
4.8 You are solely responsible for backing up any content or data entered into your Account by you. We strongly recommend that you regularly and completely backup all of your content and data in your Account.
4.9 You have the ability to upgrade or downgrade your Account, Subscription and the Services offered at any time.
4.10 Where an Account is downgraded You will be responsible for all the data within the Account and any loss of data caused by the downgrading and removal of any Service within the account connected to the downgrade.
4.11 You should backup and download your data prior to requesting a downgrade of your Subscription.
4.12 No refunds will be offered for downgraded monthly Accounts that have been downgraded before the monthly charge is due on the Account. The new lower monthly charge will be automatically applied on the usual date of the monthly charge.
4.13 Where an Account is upgraded the new higher monthly charge will be automatically applied on the next usual date of the monthly charge.
4.14 Trial or offer periods are offered at Our sole discretion and are subject to withdrawal at any time and without notice.
4.15 Only one person may use a single free or trial Account, the Account cannot be shared amongst multiple individuals.
4.16 These Terms of Service apply to all trial or offer period Accounts.
5. Terms of Service
5.1 These Terms of Service constitute the entire agreement between Us and you with respect to your purchase of Subscriptions from Us. You acknowledge that you have not relied upon any statement, representation, warranty, assurance, or promise made by or on behalf of Us that is not set out in these Terms of Service and that you shall have no claim for innocent or negligent misrepresentation or negligent misstatement based upon any statement herein.
6. Subscriptions, Pricing and Availability[A2]
6.1 We may from time to time change Our prices. Changes in price will not affect any Subscription that you have already purchased but will apply to any subsequent renewal or new Subscription. We will inform you of any change in price at least 10 days before the change is due to take effect. If you do not agree to such a change, you may cancel the Contract as described in sub-Clause 11.
6.2 We make all reasonable efforts to ensure that all prices shown on Our Site are correct at the time of going online. Changes in price will not affect any order that you have already placed (please note sub-Clause 6.6 regarding VAT, however).
6.3 All prices are checked by Us before We accept your order. In the unlikely event that We have shown incorrect pricing information, We will contact you in writing to inform you of the mistake. If the correct price is lower than that shown when you made your order, We will simply charge you the lower amount and continue processing your order. If the correct price is higher, We will give you the option to purchase the Subscription at the correct price or to cancel your order (or the affected part of it). We will not proceed with processing your order in this case until you respond. If We do not receive a response from you within 10 days, We will treat your order as cancelled and notify you of this in writing.
6.4 If We discover an error in the price or description of your Subscription after your order is processed, We will inform you as soon as possible and make all reasonable efforts to correct the error. You may, however, have the right to cancel the Contract if this happens. If We inform you of such an error and you do wish to cancel the Contract, please refer to sub-Clause 11.2.
6.5 If the price of a Subscription that you have ordered changes between your order being placed and Us processing that order and taking payment, you will be charged the price shown on Our Site at the time of placing your order. Subsequent Subscriptions and renewals will be charged at the new price.
6.6 Prices on Our Site are shown exclusive of VAT or GST. If the VAT rate changes between your order being placed and Us taking payment, the amount of VAT payable will be automatically adjusted when taking payment.
6.7 For current pricing and plans please see the pricing page located on Our Site.
6.8 We reserve the right to change pricing, plans and the features offered. You will be notified at least 10 days in advance of any changes that may affect You.
7. Orders – How Contracts Are Formed
7.1 Our Site will guide you through the process of purchasing a Subscription. Before completing your purchase, you will be given the opportunity to review your order and amend it. Please ensure that you have checked your order carefully before submitting it.
7.2 If, during the order process, you provide Us with incorrect or incomplete information, please contact Us as soon as possible. If We are unable to process your order due to incorrect or incomplete information, We will contact you to ask to correct it. If you do not give Us the accurate or complete information within a reasonable time of Our request, We will cancel your order and treat the Contract as being at an end.
7.3 No part of Our Site constitutes a contractual offer capable of acceptance. Your order to purchase a Subscription constitutes a contractual offer that We may, at Our sole discretion, accept. Our acceptance is indicated by Us sending you a Subscription Confirmation by email. Only once We have sent you a Subscription Confirmation will there be a legally binding Contract between Us and you.
7.4 Subscription Confirmations shall contain the following information:
7.4.1 Confirmation of the Subscription ordered including full details of the main characteristics of the Subscription available as part of it;
7.4.2 Fully itemised pricing for your Subscription including, where appropriate, taxes, and other additional charges; and
7.4.3 The duration of your Subscription (including the start date, and the expiry and/or renewal date).
7.5 In the unlikely event that We do not accept or cannot fulfil your order for any reason, We will explain why in writing. No payment will be taken under normal circumstances. If We have taken payment any such sums will be refunded to you.
7.6 Any refunds due under this Clause 7 will be issued to you as soon as possible, and in any event within 14 calendar days of the day on which the event triggering the refund occurs.
7.7 Refunds under this Clause 7 will be made using the same payment method that you used when purchasing your Subscription.
8.1 Payment for Subscriptions must always be made in monthly in advance. Your chosen payment method will be charged when We process your order and send you a Subscription Confirmation and on each renewal date.
8.2 Payments due must be made in full, without any set-off, counterclaim, deduction, or withholding (except where any deduction or withholding of tax is required by law).
8.3 If you do not make any payment due to Us on time, We will suspend your access to Our Site. If you do not make payment within 10 days of Our reminder, We may cancel the Contract. Any outstanding sums due to Us will remain due and payable.
8.4 If you believe that We have charged you an incorrect amount, please contact Us at support@gojeo.freshdesk.com as soon as reasonably possible to let Us know.
8.5 If you upgrade from a free or trial Account you will be immediately charged for the necessary full Account or Accounts. Your monthly payment will be due from that date each month onwards.
8.6 It is a condition of use that a valid debit or credit card is provided at all times in order for your Account or Accounts to remain active.
9. Provision of Services
9.1 Services appropriate to your Subscription will be available to you immediately when We send you a Subscription Confirmation and will continue to be available for the duration of your Subscription (including any renewals), or until the Contract is otherwise ended.
9.2 In some limited circumstances, We may need to suspend the provision of Services (in full or in part) for one or more of the following reasons:
9.2.1 To fix technical problems or to make necessary minor technical changes;
9.2.2 To update the Services to comply with relevant changes in the law or other regulatory requirements; or
9.2.3 To make more significant changes to the Services.
9.3 If We need to suspend availability of the Services for any of the reasons set out in sub-Clause 9.2, We will inform you in advance of the suspension and explain why it is necessary (unless We need to suspend availability for urgent or emergency reasons such as a dangerous problem with the Services, in which case We will inform you as soon as reasonably possible after suspension). If the suspension lasts (or We tell you that it is going to last) for more than 30 days, you may end the Contract as described below in sub-Clause 11.2.
9.4 We may suspend provision of the Services if We do not receive payment on time from you. We will inform you of the non-payment on the due date, however if you do not make payment within 10 days of Our notice, We may suspend provision of the Services until We have received all outstanding sums due from you. If We do suspend provision of the Services, We will inform you of the suspension. You will not be charged for any Services while provision is suspended.
10. Licence
10.1 When you purchase a Subscription, We will grant you a limited, non-exclusive, non-transferable, non-sublicensable licence to access and use our Services. The licence granted to you does not give you any rights in Our Services (including any material that We may licence from third parties).
10.2 You must not copy, rent, sell, publish, republish, share, broadcast or otherwise transmit the Services (or any part of it) or make it available to the public.
11. Ending Your Subscription[A4]
11.1 You may cancel your Subscription at any time, We cannot offer any refunds and you will continue to have access to the Services for the remainder of your current Subscription (up until the renewal or expiry date, as applicable), whereupon the Contract will end.
11.2 If you wish to exercise your right to cancel under this Clause 11, you may inform Us of your cancellation by email or in your Account section. Cancellation by email is effective from the date on which you send Us your message. If you would prefer to contact Us directly to cancel, please email us at support@gojeo.freshdesk.com providing Us with your name, address, email address and telephone number.
11.3 We may ask you why you have chosen to cancel and may use any answers you provide to improve Our content and services, however please note that you are under no obligation to provide any details if you do not wish to.
11.4 Refunds under this Clause 11 will be issued to you as soon as possible, and in any event within 14 calendar days of the day on which you inform Us that you wish to cancel.
11.5 Refunds under this Clause 11 will be made using the same payment method that you used when purchasing your Subscription.
11.6 No refunds will be provided for remaining unused days under a monthly Account or Accounts.
11.7 We take all reasonable steps to ensure that the Service is available and functioning fully at all times. However, in the event the Service is unavailable or functioning incorrectly either wholly or partly We shall offer (where possible) the opportunity of repeat performance of the Service We should have offered to you in the first place – where appropriate and practical. Where this is not possible we will offer full or part-refunds.
11.8 We may terminate your user Account and all content and materials associated with it at any time where these Terms of Service have been breached. Such termination can be with or without notice.
PART 2 – TERMS OF USE
12. Intellectual Property Rights
12.1 All Content included on Our Site and the copyright and other intellectual property rights subsisting in that Content, unless specifically labelled otherwise, belongs to or has been licensed by Us. All Content is protected by applicable United Kingdom and international intellectual property laws and treaties.
12.2 Subject to sub-Clauses 12.3 and 12.5 you may not reproduce, copy, distribute, sell, rent, sub-licence, store, or in any other manner re-use Content from Our Site unless given express written permission to do so by Us.
12.3 You may:
12.3.1 Access, view and use Our Site in a web browser (including any web browsing capability built into other types of software or app);
12.3.2 Download Our Site (or any part of it) for caching;
12.3.3 Print one copy of any of any pages from Our Site;
12.3.4 Download extracts from pages on Our Site; and
12.3.5 Save pages from Our Site for later and/or offline viewing.
12.4 Our status as the owner and author of the Content on Our Site (or that of identified licensors, as appropriate) must always be acknowledged.
12.5 You may not use any Content saved or downloaded from Our Site for commercial purposes without first obtaining a licence from Us (or our licensors, as appropriate) to do so. This does not prohibit the normal access, viewing and use of Our Site for general information purposes whether by business users or consumers.
12.6 We do not condone or encourage in any way the posting of copyrighted or proprietary content or information by any users who are not the legal owners of such content.
12.7 Where notified of such breaches by the owner of such content We will remove the content from the Service as soon as practicable but only where We can reasonably ascertain the true owner of such content.
12.8 If as the owner of such content You believe that your rights have been infringed You should contact us as soon as possible and provide all relevant information in writing.
13. Links to Our Site
13.1 You may link to Our Site provided that:
13.1.1 You do so in a fair and legal manner;
13.1.2 You do not do so in a manner that suggests any form of association, endorsement or approval on Our part where none exists;
13.1.3 You do not use any logos or trade marks displayed on Our Site without Our express written permission; and
13.1.4 You do not do so in a way that is calculated to damage Our reputation or to take unfair advantage of it.
13.2 You may not link to Our Site from any other site the main content of which contains material that:
13.2.1 is sexually explicit;
13.2.2 is obscene, deliberately offensive, hateful or otherwise inflammatory;
13.2.3 promotes violence;
13.2.4 promotes or assists in any form of unlawful activity;
13.2.5 discriminates against, or is in any way defamatory of, any person, group or class of persons, race, sex, religion, nationality, disability, sexual orientation, or age;
13.2.6 is intended or is otherwise likely to threaten, harass, annoy, alarm, inconvenience, upset, or embarrass another person;
13.2.7 is calculated or is otherwise likely to deceive another person;
13.2.8 is intended or otherwise likely to infringe (or threaten to infringe) another person’s right to privacy;
13.2.9 misleadingly impersonates any person or otherwise misrepresents the identity or affiliation of a particular person in a way that is calculated to deceive (obvious parodies are not included in this definition provided that they do not fall within any of the other provisions of this sub-Clause 13.2);
13.2.10implies any form of affiliation with Us where none exists;
13.2.11infringes, or assists in the infringement of, the intellectual property rights (including, but not limited to, copyright, trade marks and database rights) of any other party; or
13.2.12is made in breach of any legal duty owed to a third party including, but not limited to, contractual duties and duties of confidence.
14. Links to Other Sites
Links to other sites may be included on Our Site. Unless expressly stated, these sites are not under Our control. We neither assume nor accept responsibility or liability for the content of third party sites. The inclusion of a link to another site on Our Site is for information only and does not imply any endorsement of the sites themselves or of those in control of them.
15. Disclaimers
15.1 Nothing on Our Site constitutes advice on which you should rely. It is provided for general information purposes only.
15.2 Insofar as is permitted by law, We make no representation, warranty, or guarantee that Our Site will meet your requirements, that it will not infringe the rights of third parties, that it will be compatible with all software and hardware, or that it will be secure.
15.3 We make reasonable efforts to ensure that the Content on Our Site is complete, accurate, and up-to-date. We do not, however, make any representations, warranties or guarantees (whether express or implied) that the Content is complete, accurate, or up-to-date.
16. Our Liability
16.1 To the fullest extent permissible by law, We accept no liability to any user for any loss or damage, whether foreseeable or otherwise, in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising out of or in connection with the use of (or inability to use) Our Site or the use of or reliance upon any Content included on Our Site.
16.2 To the fullest extent permissible by law, We exclude all representations, warranties, and guarantees (whether express or implied) that may apply to Our Site or any Content included on Our Site.
16.3 We accept no liability for loss of profits, sales, business or revenue; loss of business opportunity, goodwill or reputation; loss of anticipated savings; business interruption; or for any indirect or consequential loss or damage.
16.4 We exercise all reasonable skill and care to ensure that Our Site is free from viruses and other malware. We accept no liability for any loss or damage resulting from a virus or other malware, a distributed denial of service attack, or other harmful material or event that may adversely affect your hardware, software, data or other material that occurs as a result of your use of Our Site (including the downloading of any Content from it) or any other site referred to on Our Site.
16.5 We neither assume nor accept responsibility or liability arising out of any disruption or non-availability of Our Site resulting from external causes including, but not limited to, ISP equipment failure, host equipment failure, communications network failure, natural events, acts of war, or legal restrictions and censorship.
16.6 Nothing in these Terms and Conditions excludes or restricts Our liability for fraud or fraudulent misrepresentation, for death or personal injury resulting from negligence, or for any other forms of liability which cannot be excluded or restricted by law.
16.7 Our total liability to you for all other losses arising out of or in connection with any contract between you and Us, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall be limited to the total amount of your Subscription Fees in the 12 month period ending on the date of the breach or claim.
17. Viruses, Malware and Security
17.1 We exercise all reasonable skill and care to ensure that Our Site is secure and free from viruses and other malware.
17.2 You are responsible for protecting your hardware, software, data and other material from viruses, malware, and other internet security risks.
17.3 You must not deliberately introduce viruses or other malware, or any other material which is malicious or technologically harmful either to or via Our Site.
17.4 You must not attempt to gain unauthorised access to any part of Our Site, the server on which Our Site is stored, or any other server, computer, or database connected to Our Site.
17.5 You must not attack Our Site by means of a denial of service attack, a distributed denial of service attack, or by any other means.
17.6 By breaching the provisions of sub-Clauses 17.3 to 17.5 you may be committing a criminal offence under the Computer Misuse Act 1990. Any and all such breaches will be reported to the relevant law enforcement authorities and We will cooperate fully with those authorities by disclosing your identity to them. Your right to use Our Site will cease immediately in the event of such a breach.
18. Acceptable Usage Policy
18.1 You may only use Our Site in a manner that is lawful. Specifically you must not:
18.1.1 use Our Site in any way, or for any purpose, that is unlawful or fraudulent;
18.1.2 use Our Site to knowingly send, upload, or in any other way transmit data that contains any form of virus or other malware, or any other code designed to adversely affect computer hardware, software, or data of any kind;
18.1.3 use Our Site in any way, or for any purpose, that is intended to harm any person or persons in any way;
18.1.4 abuse, harass, threaten, stalk, defame or in anyway seek to violate the rights of another user or third-party;
18.1.5 publish or seek to distribute any material or information that is unlawful, harmful, obscene, indecent, libellous, profane, defamatory, racist, or in any other way inappropriate or objectionable;
18.1.6 use or harvest data provided by other users in a way that they would object to;
18.1.7 encourage illegal activity or activity that violates the rights of other Service users or third parties, whether individuals or organisations;
18.1.8 supply or post content calculated to deliberately mislead other users or third parties, including content falsely made to appear from or be endorsed by us;
18.1.9 pose as another user, third-party or organisation employee for the purposes of obtaining user or third-party information;
18.1.10 transmit or transfer any viruses, trojans, worms or any other malicious programs or code intended to spy on, gain control over, disrupt, destroy or in any other way impair any computer hardware or software or any other equipment.
18.1.11 attempt to gain access to our servers or other equipment in order to disrupt, impair, overload or otherwise hinder or compromise the safety, security or privacy of any of the Services provided by or relied upon by users and Us.
18.1.12 reframe or repurpose the Service or any content on it, remove, obscure or block any notices (and advertising as applicable) provided by us on the Service;
18.1.13 load or provide access to content on the Service or link to other content from the Service, which infringes the trademark, patent, trade secret or any other proprietary right of a third-party or infringes any intellectual property law;
18.1.14 send junk or spam email or emails or posts promoting pyramid schemes, chain letters or any other activity that invites users and others to participate in wasting their time and/or money; and
18.1.15 use any robot, spider, scraper or other technical means to access the Service or any content on the Service.
18.2 We reserve the right to suspend or terminate your access to Our Site if you materially breach the provisions of this Clause 18 or any of the other provisions of these Terms and Conditions. Specifically, We may take one or more of the following actions:
18.2.1 suspend, whether temporarily or permanently, your right to access Our Site;
18.2.2 issue you with a written warning;
18.2.3 take legal proceedings against you for reimbursement of any and all relevant costs on an indemnity basis resulting from your breach;
18.2.4 take further legal action against you as appropriate;
18.2.5 disclose such information to law enforcement authorities as required or as We deem reasonably necessary; and/or
18.2.6 any other actions which We deem reasonably appropriate (and lawful).
18.3 We hereby exclude any and all liability arising out of any actions (including, but not limited to those set out above) that We may take in response to breaches of these Terms and Conditions.
18.4 You must ensure that you comply fully with any and all local, national or international laws and/or regulations.
19. Events Outside of Our Control (Force Majeure)
19.1 We will not be liable for any failure or delay in performing Our obligations where that failure or delay results from any cause that is beyond Our reasonable control. Such causes include, but are not limited to: power failure, internet service provider failure, strikes, lock-outs or other industrial action by third parties, riots and other civil unrest, fire, explosion, flood, storms, earthquakes, subsidence, acts of terrorism (threatened or actual), acts of war (declared, undeclared, threatened, actual or preparations for war), epidemic or other natural disaster, or any other event that is beyond Our reasonable control.
19.2 If any event described under this Clause 19 occurs that is likely to adversely affect Our performance of any of Our obligations under these Terms of Service:
19.2.1 We will inform you as soon as is reasonably possible;
19.2.2 We will take all reasonable steps to minimise the delay;
19.2.3 To the extent that We cannot minimise the delay, Our affected obligations under these Terms of Service (and therefore the Contract) will be suspended and any time limits that We are bound by will be extended accordingly;
19.2.4 If the event outside of Our control continues for more than 90 days We will cancel the Contract and inform you of the cancellation. Any refunds due to you as a result of that cancellation will be paid to you as soon as is reasonably possible and in any event within 10 days of the date on which the Contract is cancelled and will be made using the same payment method that you used when ordering your Subscription.
20. Changes to these Terms and Conditions
20.1 We may alter these Terms and Conditions at any time. Any such changes will become binding on you upon your first use of Our Site after the changes have been implemented. You are therefore advised to check this page from time to time.
20.2 In the event of any conflict between the current version of these Terms and Conditions and any previous version(s), the provisions current and in effect shall prevail unless it is expressly stated otherwise.
21. Contacting Us
To contact Us, please use the following method: email: support@gojeo.freshdesk.com
22. Technical Support
22.1 We will provide technical support is provided via email and such other means as we decide in order to provide support service to users.
22.2 We reserve the right not to provide a full technical support service to free or trial Account users.
23. Communications from Us
23.1 If We have your contact details, We may from time to time send you important notices by email. Such notices may relate to matters including, but not limited to, service changes and changes to these Terms and Conditions.
23.2 We will never send you marketing emails of any kind without your express consent. If you do give such consent, you may opt out at any time. Any and all marketing emails sent by Us include an unsubscribe link. If you opt out of receiving emails from Us at any time, it may take up to 10 business days for Us to comply with your request. During that time, you may continue to receive emails from Us.
24. How We Use Your Personal Information (Data Protection)
24.1 All personal data that We may use will be collected, processed, and held in accordance with the provisions of the Data Protection Legislation and your rights thereunder.
24.2 For complete details of Our collection, processing, storage, and retention of personal data including, but not limited to, the purpose(s) for which personal data is used, the legal basis or bases for using it, details of your rights and how to exercise them, and personal data sharing (where applicable), please refer to Our Privacy Policy http://coldreach.com/privacy-policy
24.3 We will process any personal data in accordance with Part 3. If there are international transfers of personal data We will comply with the standard contractual clauses set out in Part 4.
25. Other Important Terms
25.1 We may transfer (assign) Our obligations and rights under these Terms of Service (and under the Contract, as applicable) to a third party (this may happen, for example, if We sell Our business). If this occurs, you will be informed by Us in writing. Your rights under these Terms of Service will not be affected and Our obligations under these Terms of Service will be transferred to the third party who will remain bound by them.
25.2 You may not transfer (assign) your obligations and rights under these Terms of Service (and under the Contract, as applicable) without Our express written permission.
25.3 The Contract is between you and Us. It is not intended to benefit any other person or third party in any way and no such person or party will be entitled to enforce any provision of these Terms of Service.
25.4 If any of the provisions of these Terms of Service are found to be unlawful, invalid or otherwise unenforceable by any court or other authority, that / those provision(s) shall be deemed severed from the remainder of these Terms of Service. The remainder of these Terms of Service shall be valid and enforceable.
25.5 No failure or delay by Us in exercising any of Our rights under these Terms of Service means that We have waived that right, and no waiver by Us of a breach of any provision of these Terms of Service means that We will waive any subsequent breach of the same or any other provision.
25.6 We may revise these Terms of Service from time to time in response to changes in relevant laws and other regulatory requirements. If We change these Terms of Service as they relate to your Subscription, We will give you reasonable advance notice of the changes and provide details of how to cancel if you are not happy with them.
26. Law and Jurisdiction
26.1 These Terms of Service, and the relationship between you and Us (whether contractual or otherwise) shall be governed by, and construed in accordance with, English law.
26.2 Any disputes concerning these Terms of Service, the relationship between you and Us, or any matters arising therefrom or associated therewith (whether contractual or otherwise) shall be subject to the exclusive jurisdiction of the courts of England and Wales.
PART 3 – DATA PROTECTION
1. Data Protection
All personal data that GoJeo Software Pty Ltd t/a Agency Bud may use will be collected, processed, and held in accordance with the provisions of EU Regulation 2016/679 General Data Protection Regulation (“GDPR”) and your rights under the GDPR.
2. Data Processing
2.1 In this Schedule:
2.1.1 “personal data”, “data subject”, “data controller”, “data processor”, and “personal data breach” shall have the meaning defined in Article 4, EU Regulation 2016/679 General Data Protection Regulation (“GDPR”); and
2.1.2 “Data Protection Legislation” means 1) unless and until EU Regulation 2016/679 General Data Protection Regulation (“GDPR”) is no longer directly applicable in the UK, the GDPR and any national implementing laws, regulations, and secondary legislation (as amended from time to time), in the UK and subsequently 2) the Data Protection Act 2018 (“DPA”) and 3) any legislation which succeeds the GDPR and or the DPA.
2.2 Both Parties shall comply with all applicable data protection requirements set out in the Data Protection Legislation. Neither this Clause 2 nor any other provisions of this Agreement shall relieve either Party of any obligations set out in the Data Protection Legislation and shall not remove or replace any of those obligations.
2.3 For the purposes of the Data Protection Legislation and for this Clause 2, GoJeo Software Pty Ltd t/a Agency Bud is the “Data Processor” and You are the “Data Controller”.
2.4 The type(s) of personal data, the scope, nature and purpose of the processing, and the duration of the processing shall be set out in the Annex to this Schedule.
2.5 The Data Controller shall ensure that it has in place all necessary consents and notices required to enable the lawful transfer of personal data to the Data Processor for the purposes described in the Annex to this Schedule.
2.6 The Data Processor shall, with respect to any personal data processed by it in relation to its performance of any of its obligations under this Agreement:
2.6.1 Process the personal data only on the written instructions of the Data Controller unless the Data Processor is otherwise required to process such personal data by law. The Data Processor shall promptly notify the Data Controller of such processing unless prohibited from doing so by law.
2.6.2 Ensure that it has in place suitable technical and organisational measures (as approved by the Data Controller) to protect the personal data from unauthorised or unlawful processing, accidental loss, damage or destruction. Such measures shall be proportionate to the potential harm resulting from such events, taking into account the current state of the art in technology and the cost of implementing those measures. Measures to be taken shall be agreed between the Data Controller and the Data Processor and set out in the Annex to this Schedule.
2.6.3 Ensure that any and all staff with access to the personal data (whether for processing purposes or otherwise) are contractually obliged to keep that personal data confidential; and
2.6.4 Not transfer any personal data outside of the European Economic Area without the prior written consent of the Data Controller and only if the following conditions are satisfied
2.6.4.1 The Data Controller and/or the Data Processor has/have provided suitable safeguards for the transfer of personal data;
2.6.4.2 Affected data subjects have enforceable rights and effective legal remedies;
2.6.4.3 The Data Processor complies with its obligations under the Data Protection Legislation, providing an adequate level of protection to any and all personal data so transferred; and
2.6.4.4 The Data Processor complies with all reasonable instructions given in advance by the Data Controller with respect to the processing of the personal data.
2.6.4.5 Assist the Data Controller at the Data Controller’s cost, in responding to any and all requests from data subjects in ensuring its compliance with the Data Protection Legislation with respect to security, breach notifications, impact assessments, and consultations with supervisory authorities or regulators (including, but not limited to, the Information Commissioner’s Office);
2.6.4.6 Notify the Data Controller without undue delay of a personal data breach;
2.6.4.7 On the Data Controller’s written instruction, delete (or otherwise dispose of) or return all personal data and any and all copies thereof to the Data Controller on termination of this Agreement unless it is required to retain any of the personal data by law; and
2.6.4.8 Maintain complete and accurate records of all processing activities and technical and organisational measures implemented necessary to demonstrate compliance with this Clause 2 and to allow for audits by the Data Controller and/or any party designated by the Data Controller.
2.7 The Data Processor shall not sub-contract any of its obligations with respect to the processing of personal data under this Clause 2.
Annex to Schedule
Pursuant to Clause 2.4 of the Schedule, the following sets out the type(s) of personal data, the scope, nature and purpose of the processing, and the duration of the processing:
Scope – Information including: Name, Email address, Company Address, Company phone number, Company website, Personal Linkedin Profile URL, Personal Facebook profile URL
Nature – Data is processed via retrieval of the publicly available sources
Purpose of processing – to implement the above
Duration of the processing –term of the agreement, Data shall not be stored for longer than 30 days
Types of personal data – to include: personal name, personal email address, personal linkedin profile URL, personal facebook profile URL
Categories of data subject Name, Email , Address, Phone number, company name, company website
Any person who has data on our system can request it's deletion by following This Link
PART 4 - STANDARD CONTRACTUAL CLAUSES – INTERNATIONAL DATA TRANSFERS
For the purposes of Article 26(2) of Directive 95/46/EC for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection
Name of the data exporting organisation:
The Customer’s entity that is a signatory to the Variation Agreement (acting on its own behalf and as agent of behalf of each of the members of the Customer Group that are based inside the European Economic Area and who export personal data).
(the data exporter)
And
The Supplier entity identified in Appendix 1 of the Variation Agreement (acting on its own behalf and as agent of behalf of each of the members of the Supplier Group that are based outside the European Economic Area and to whom personal data is exported).
(the data importer)
each a ‘party’; together ‘the parties’,
HAVE AGREED on the following Contractual Clauses (the Clauses) in order to adduce adequate safeguards with respect to the protection of privacy and fundamental rights and freedoms of individuals for the transfer by the data exporter to the data importer of the personal data specified in Appendix 1.
Clause 1
Definitions
For the purposes of the Clauses:
(a) ‘personal data’, ‘special categories of data’, ‘process/processing’, ‘controller’, ‘processor’, ‘data subject’ and ‘supervisory authority’ shall have the same meaning as in Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data;
(b) ‘the data exporter’ means the controller who transfers the personal data;
(c) ‘the data importer’ means the processor who agrees to receive from the data exporter personal data intended for processing on his behalf after the transfer in accordance with his instructions and the terms of the Clauses and who is not subject to a third country’s system ensuring adequate protection within the meaning of Article 25(1) of Directive 95/46/EC;
(d) ‘the sub-processor’ means any processor engaged by the data importer or by any other sub-processor of the data importer who agrees to receive from the data importer or from any other sub-processor of the data importer personal data exclusively intended for processing activities to be carried out on behalf of the data exporter after the transfer in accordance with his instructions, the
(e) terms of the Clauses and the terms of the written subcontract;
(f) ‘the applicable data protection law’ means the legislation protecting the fundamental rights and freedoms of individuals and, in particular, their right to privacy with respect to the processing of personal data applicable to a data controller in the Member State in which the data exporter is established;
(g) ‘technical and organisational security measures’ means those measures aimed at protecting personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing.
Clause 2
Details of the transfer
The details of the transfer and in particular the special categories of personal data where applicable are specified in Appendix 1 which forms an integral part of the Clauses.
Clause 3
Third-party beneficiary clause
1. The data subject can enforce against the data exporter this Clause, Clause 4(b) to (i), Clause 5(a) to (e), and (g) to (j), Clause 6(1) and (2), Clause 7, Clause 8(2), and Clauses 9 to 12 as third-party beneficiary.
2. The data subject can enforce against the data importer this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where the data exporter has factually disappeared or has ceased to exist in law unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law, as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity.
3. The data subject can enforce against the sub-processor this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity. Such third-party liability of the sub- processor shall be limited to its own processing operations under the Clauses.
4. The parties do not object to a data subject being represented by an association or other body if the data subject so expressly wishes and if permitted by national law.
Clause 4
Obligations of the data exporter
The data exporter agrees and warrants:
(a) that the processing, including the transfer itself, of the personal data has been and will continue to be carried out in accordance with the relevant provisions of the applicable data protection law (and, where applicable, has been notified to the relevant authorities of the Member State where the data exporter is established) and does not violate the relevant provisions of that State;
(b) that it has instructed and throughout the duration of the personal data-processing services will instruct the data importer to process the personal data transferred only on the data exporter’s behalf and in accordance with the applicable data protection law and the Clauses;
(c) that the data importer will provide sufficient guarantees in respect of the technical and organisational security measures specified in Appendix 2 to this contract;
(d) that after assessment of the requirements of the applicable data protection law, the security measures are appropriate to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing, and that these measures ensure a level of security appropriate to the risks presented by the processing and the nature of the data to be protected having regard to the state of the art and the cost of their implementation;
(e) that it will ensure compliance with the security measures;
(f) that, if the transfer involves special categories of data, the data subject has been informed or will be informed before, or as soon as possible after, the transfer that its data could be transmitted to a third country not providing adequate protection within the meaning of Directive 95/46/EC;
(g) to forward any notification received from the data importer or any sub-processor pursuant to Clause 5(b) and Clause 8(3) to the data protection supervisory authority if the data exporter decides to continue the transfer or to lift the suspension;
(h) to make available to the data subjects upon request a copy of the Clauses, with the exception of Appendix 2, and a summary description of the security measures, as well as a copy of any contract for sub-processing services which has to be made in accordance with the Clauses, unless the Clauses or the contract contain commercial information, in which case it may remove such commercial information;
(i) that, in the event of sub-processing, the processing activity is carried out in accordance with Clause 11 by a sub- processor providing at least the same level of protection for the personal data and the rights of data subject as the data importer under the Clauses; and
(j) that it will ensure compliance with Clause 4(a) to (i).
Clause 5
Obligations of the data importer
The data importer agrees and warrants:
(a) to process the personal data only on behalf of the data exporter and in compliance with its instructions and the Clauses; if it cannot provide such compliance for whatever reasons, it agrees to inform promptly the data exporter of its inability to comply, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;
(b) that it has no reason to believe that the legislation applicable to it prevents it from fulfilling the instructions received from the data exporter and its obligations under the contract and that in the event of a change in this legislation which is likely to have a substantial adverse effect on the warranties and obligations provided by the Clauses, it will promptly notify the change to the data exporter as soon as it is aware, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;
(c) that it has implemented the technical and organisational security measures specified in Appendix 2 before processing data transferred;
(d) that it will promptly notify the data exporter about:
(i) any legally binding request for disclosure of the personal data by a law enforcement authority unless otherwise prohibited, such as a prohibition under criminal law to preserve the confidentiality of a law enforcement investigation;
(ii) any accidental or unauthorised access; and
(iii) any request received directly from the data subjects without responding to that request, unless it has been otherwise authorised to do so;
(e) to deal promptly and properly with all inquiries from the data exporter relating to its processing of the personal data subject to the transfer and to abide by the advice of the supervisory authority with regard to the processing of the data transferred;
(f) at the request of the data exporter to submit its data-processing facilities for audit of the processing activities covered by the Clauses which shall be carried out by the data exporter or an inspection body composed of independent members and in possession of the required professional qualifications bound by a duty of confidentiality, selected by the data exporter, where applicable, in agreement with the supervisory authority;
(g) to make available to the data subject upon request a copy of the Clauses, or any existing contract for sub-processing, unless the Clauses or contract contain commercial information, in which case it may remove such commercial information, with the exception of Appendix 2 which shall be replaced by a summary description of the security measures in those cases where the data subject is unable to obtain a copy from the data exporter;
(h) that, in the event of sub-processing, it has previously informed the data exporter and obtained its prior written consent;
(i) that the processing services by the sub-processor will be carried out in accordance with Clause 11;
(j) to send promptly a copy of any sub-processor agreement it concludes under the Clauses to the data exporter.
Clause 6
Liability
1. The parties agree that any data subject, who has suffered damage as a result of any breach of the obligations referred to in Clause 3 or in Clause 11 by any party or sub-processor is entitled to receive compensation from the data exporter for the damage suffered.
2. If a data subject is not able to bring a claim for compensation in accordance with paragraph 1 against the data exporter, arising out of a breach by the data importer or his sub-processor of any of their obligations referred to in Clause 3 or in Clause 11, because the data exporter has factually disappeared or ceased to exist in law or has become insolvent, the data importer agrees that the data subject may issue a claim against the data importer as if it were the data exporter, unless any successor entity has assumed the entire legal obligations of the data exporter by contract of by operation of law, in which case the data subject can enforce its rights against such entity.
The data importer may not rely on a breach by a sub-processor of its obligations in order to avoid its own liabilities.
3. If a data subject is not able to bring a claim against the data exporter or the data importer referred to in paragraphs 1 and 2, arising out of a breach by the sub-processor of any of their obligations referred to in Clause 3 or in Clause 11 because both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, the sub-processor agrees that the data subject may issue a claim against the data sub-processor with regard to its own processing operations under the Clauses as if it were the data exporter or the data importer, unless any successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law, in which case the data subject can enforce its rights against such entity. The liability of the sub-processor shall be limited to its own processing operations under the Clauses.
Clause 7
Mediation and jurisdiction
1. The data importer agrees that if the data subject invokes against it third-party beneficiary rights and/or claims compensation for damages under the Clauses, the data importer will accept the decision of the data subject:
(a) to refer the dispute to mediation, by an independent person or, where applicable, by the supervisory authority;
(b) to refer the dispute to the courts in the Member State in which the data exporter is established.
2. The parties agree that the choice made by the data subject will not prejudice its substantive or procedural rights to seek remedies in accordance with other provisions of national or international law.
Clause 8
Cooperation with supervisory authorities
1. The data exporter agrees to deposit a copy of this contract with the supervisory authority if it so requests or if such deposit is required under the applicable data protection law.
2. The parties agree that the supervisory authority has the right to conduct an audit of the data importer, and of any sub-processor, which has the same scope and is subject to the same conditions as would apply to an audit of the data exporter under the applicable data protection law.
3. The data importer shall promptly inform the data exporter about the existence of legislation applicable to it or any sub-processor preventing the conduct of an audit of the data importer, or any sub-processor, pursuant to paragraph 2. In such a case the data exporter shall be entitled to take the measures foreseen in Clause 5(b).
Clause 9
Governing law
The Clauses shall be governed by the law of the Member State in which the data exporter is established, namely England and Wales
Clause 10
Variation of the contract
The parties undertake not to vary or modify the Clauses. This does not preclude the parties from adding clauses on business related issues where required as long as they do not contradict the Clause.
Clause 11
Sub-processing
1. The data importer shall not subcontract any of its processing operations performed on behalf of the data exporter under the Clauses without the prior written consent of the data exporter. Where the data importer subcontracts its obligations under the Clauses, with the consent of the data exporter, it shall do so only by way of a written agreement with the sub-processor which imposes the same obligations on the sub-processor as are imposed on the data importer under the Clauses. Where the sub-processor fails to fulfil its data protection obligations under such written agreement the data importer shall remain fully liable to the data exporter for the performance of the sub-processor’s obligations under such agreement.
2. The prior written contract between the data importer and the sub-processor shall also provide for a third-party beneficiary clause as laid down in Clause 3 for cases where the data subject is not able to bring the claim for compensation referred to in paragraph 1 of Clause 6 against the data exporter or the data importer because they have factually disappeared or have ceased to exist in law or have become insolvent and no successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law. Such third-party liability of the sub-processor shall be limited to its own processing operations under the Clauses.
3. The provisions relating to data protection aspects for sub-processing of the contract referred to in paragraph 1 shall be governed by the law of the Member State in which the data exporter is established, namely England and Wales.
4. The data exporter shall keep a list of sub-processing agreements concluded under the Clauses and notified by the data importer pursuant to Clause 5(j), which shall be updated at least once a year. The list shall be available to the data exporter’s data protection supervisory authority.
Clause 12
Obligation after the termination of personal data-processing services
1. The parties agree that on the termination of the provision of data-processing services, the data importer and the sub-processor shall, at the choice of the data exporter, return all the personal data transferred and the copies thereof to the data exporter or shall destroy all the personal data and certify to the data exporter that it has done so, unless legislation imposed upon the data importer prevents it from returning or destroying all or part of the personal data transferred. In that case, the data importer warrants that it will guarantee the confidentiality of the personal data transferred and will not actively process the personal data transferred anymore.
2. The data importer and the sub-processor warrant that upon request of the data exporter and/or of the supervisory authority, it will submit its data-processing facilities for an audit of the measures referred to in paragraph 1
Contact Us
If you have any questions about these Terms, please contact us via our support desk listed below.
Support Desk: https://gojeo.freshdesk.com/support/solutions
Terms of Service ("Terms")
Last updated: 2021
Please read these Terms of Service ("Terms", "Terms of Service") carefully before using the https://agencybud.com website (the "Service") operated by GoJeoPty Ltd ("us", "we", or "our") or any of our websites including, but not limited to http://repwarn.com, http://datajeo.com, http://engagesuperbot.com, http://gojeo.com, http://waltbayliss.com, http://umo.io, http://coldreach.com, https://SocialPostMagic.com
GoJeo Pty Ltd
Your access to and use of the Service is conditioned on your acceptance of and compliance with these Terms. These Terms apply to all visitors, users and others who access or use the Service. You warrant that you are at least 18-years-old and you are legally capable of entering into binding contracts. If you are under 18-years-old, you warrant that you have obtained consent from your parent or guardian and they agree to be bound by these Terms on your behalf.
B
These Terms of Service set out the terms under which Subscriptions are sold by Us to customers through this website, www.coldreach.com (“Our Site”). Please read these Terms of Service carefully and ensure that you understand them before purchasing a Subscription. You will be required to read and accept these Terms of Service when ordering a Subscription. If you do not agree to comply with and be bound by these Terms of Service, you will not be able to purchase a Subscription. These Terms of Service, as well as any and all Contracts are in the English language only.
PART 1 – TERMS OF SERVICE
1. Definitions and Interpretation
1.1 In these Terms of Service, unless the context otherwise requires, the following expressions have the following meanings:
2. Information About Us
2.1 Our Site is owned and operated by GoJeo Software Pty a limited company registered in Australia under company number 12609670215 whose registered office is at PO Box 3220, Doncaster East VIC, Australia 3109 ].
3. Access to and Use of Our Site
3.1 Access to Our Site is free of charge, Access to the APP and software is paid.
3.2 It is your responsibility to make any and all arrangements necessary in order to access Our Site.
3.3 Access to Our Site is provided “as is” and on an “as available” basis. We may alter, suspend or discontinue Our Site (or any part of it) at any time and without notice. We will not be liable to you in any way if Our Site (or any part of it) is unavailable at any time and for any period.
4.1 Certain parts of Our Site (including the ability to purchase Services from Us) may require an Account in order to access them.
4.2 You may not create an Account if you are under 18 years of age.
4.3 When creating an Account, the information you provide must be accurate and complete. If any of your information changes at a later date, it is your responsibility to ensure that your Account is kept up-to-date.
4.4 We recommend that you choose a strong password for your Account. It is your responsibility to keep your password safe. You must not share your Account with anyone else. If you believe your Account is being used without your permission, please contact Us immediately at support@gojeo.freshdesk.com . We will not be liable for any unauthorised use of your Account.
4.5 You must not use anyone else’s Account.
4.6 Any personal information provided in your Account will be collected, used, and held in accordance with your rights and Our obligations under the law, as set out in Clause 24.
4.7 If you wish to close your Account, you may do so at any time. Closing your Account will result in the removal of your information. Closing your Account will also remove access to any areas of Our Site requiring an Account for access. Closing your Account should be done using the facility provided within your Account.
4.8 You are solely responsible for backing up any content or data entered into your Account by you. We strongly recommend that you regularly and completely backup all of your content and data in your Account.
4.9 You have the ability to upgrade or downgrade your Account, Subscription and the Services offered at any time.
4.10 Where an Account is downgraded You will be responsible for all the data within the Account and any loss of data caused by the downgrading and removal of any Service within the account connected to the downgrade.
4.11 You should backup and download your data prior to requesting a downgrade of your Subscription.
4.12 No refunds will be offered for downgraded monthly Accounts that have been downgraded before the monthly charge is due on the Account. The new lower monthly charge will be automatically applied on the usual date of the monthly charge.
4.13 Where an Account is upgraded the new higher monthly charge will be automatically applied on the next usual date of the monthly charge.
4.14 Trial or offer periods are offered at Our sole discretion and are subject to withdrawal at any time and without notice.
4.15 Only one person may use a single free or trial Account, the Account cannot be shared amongst multiple individuals.
4.16 These Terms of Service apply to all trial or offer period Accounts.
5. Terms of Service
5.1 These Terms of Service constitute the entire agreement between Us and you with respect to your purchase of Subscriptions from Us. You acknowledge that you have not relied upon any statement, representation, warranty, assurance, or promise made by or on behalf of Us that is not set out in these Terms of Service and that you shall have no claim for innocent or negligent misrepresentation or negligent misstatement based upon any statement herein.
6. Subscriptions, Pricing and Availability[A2]
6.1 We may from time to time change Our prices. Changes in price will not affect any Subscription that you have already purchased but will apply to any subsequent renewal or new Subscription. We will inform you of any change in price at least 10 days before the change is due to take effect. If you do not agree to such a change, you may cancel the Contract as described in sub-Clause 11.
6.2 We make all reasonable efforts to ensure that all prices shown on Our Site are correct at the time of going online. Changes in price will not affect any order that you have already placed (please note sub-Clause 6.6 regarding VAT, however).
6.3 All prices are checked by Us before We accept your order. In the unlikely event that We have shown incorrect pricing information, We will contact you in writing to inform you of the mistake. If the correct price is lower than that shown when you made your order, We will simply charge you the lower amount and continue processing your order. If the correct price is higher, We will give you the option to purchase the Subscription at the correct price or to cancel your order (or the affected part of it). We will not proceed with processing your order in this case until you respond. If We do not receive a response from you within 10 days, We will treat your order as cancelled and notify you of this in writing.
6.4 If We discover an error in the price or description of your Subscription after your order is processed, We will inform you as soon as possible and make all reasonable efforts to correct the error. You may, however, have the right to cancel the Contract if this happens. If We inform you of such an error and you do wish to cancel the Contract, please refer to sub-Clause 11.2.
6.5 If the price of a Subscription that you have ordered changes between your order being placed and Us processing that order and taking payment, you will be charged the price shown on Our Site at the time of placing your order. Subsequent Subscriptions and renewals will be charged at the new price.
6.6 Prices on Our Site are shown exclusive of VAT or GST. If the VAT rate changes between your order being placed and Us taking payment, the amount of VAT payable will be automatically adjusted when taking payment.
6.7 For current pricing and plans please see the pricing page located on Our Site.
6.8 We reserve the right to change pricing, plans and the features offered. You will be notified at least 10 days in advance of any changes that may affect You.
7. Orders – How Contracts Are Formed
7.1 Our Site will guide you through the process of purchasing a Subscription. Before completing your purchase, you will be given the opportunity to review your order and amend it. Please ensure that you have checked your order carefully before submitting it.
7.2 If, during the order process, you provide Us with incorrect or incomplete information, please contact Us as soon as possible. If We are unable to process your order due to incorrect or incomplete information, We will contact you to ask to correct it. If you do not give Us the accurate or complete information within a reasonable time of Our request, We will cancel your order and treat the Contract as being at an end.
7.3 No part of Our Site constitutes a contractual offer capable of acceptance. Your order to purchase a Subscription constitutes a contractual offer that We may, at Our sole discretion, accept. Our acceptance is indicated by Us sending you a Subscription Confirmation by email. Only once We have sent you a Subscription Confirmation will there be a legally binding Contract between Us and you.
7.4 Subscription Confirmations shall contain the following information:
7.4.1 Confirmation of the Subscription ordered including full details of the main characteristics of the Subscription available as part of it;
7.4.2 Fully itemised pricing for your Subscription including, where appropriate, taxes, and other additional charges; and
7.4.3 The duration of your Subscription (including the start date, and the expiry and/or renewal date).
7.5 In the unlikely event that We do not accept or cannot fulfil your order for any reason, We will explain why in writing. No payment will be taken under normal circumstances. If We have taken payment any such sums will be refunded to you.
7.6 Any refunds due under this Clause 7 will be issued to you as soon as possible, and in any event within 14 calendar days of the day on which the event triggering the refund occurs.
7.7 Refunds under this Clause 7 will be made using the same payment method that you used when purchasing your Subscription.
8.1 Payment for Subscriptions must always be made in monthly in advance. Your chosen payment method will be charged when We process your order and send you a Subscription Confirmation and on each renewal date.
8.2 Payments due must be made in full, without any set-off, counterclaim, deduction, or withholding (except where any deduction or withholding of tax is required by law).
8.3 If you do not make any payment due to Us on time, We will suspend your access to Our Site. If you do not make payment within 10 days of Our reminder, We may cancel the Contract. Any outstanding sums due to Us will remain due and payable.
8.4 If you believe that We have charged you an incorrect amount, please contact Us at support@gojeo.freshdesk.com as soon as reasonably possible to let Us know.
8.5 If you upgrade from a free or trial Account you will be immediately charged for the necessary full Account or Accounts. Your monthly payment will be due from that date each month onwards.
8.6 It is a condition of use that a valid debit or credit card is provided at all times in order for your Account or Accounts to remain active.
9. Provision of Services
9.1 Services appropriate to your Subscription will be available to you immediately when We send you a Subscription Confirmation and will continue to be available for the duration of your Subscription (including any renewals), or until the Contract is otherwise ended.
9.2 In some limited circumstances, We may need to suspend the provision of Services (in full or in part) for one or more of the following reasons:
9.2.1 To fix technical problems or to make necessary minor technical changes;
9.2.2 To update the Services to comply with relevant changes in the law or other regulatory requirements; or
9.2.3 To make more significant changes to the Services.
9.3 If We need to suspend availability of the Services for any of the reasons set out in sub-Clause 9.2, We will inform you in advance of the suspension and explain why it is necessary (unless We need to suspend availability for urgent or emergency reasons such as a dangerous problem with the Services, in which case We will inform you as soon as reasonably possible after suspension). If the suspension lasts (or We tell you that it is going to last) for more than 30 days, you may end the Contract as described below in sub-Clause 11.2.
9.4 We may suspend provision of the Services if We do not receive payment on time from you. We will inform you of the non-payment on the due date, however if you do not make payment within 10 days of Our notice, We may suspend provision of the Services until We have received all outstanding sums due from you. If We do suspend provision of the Services, We will inform you of the suspension. You will not be charged for any Services while provision is suspended.
10. Licence
10.1 When you purchase a Subscription, We will grant you a limited, non-exclusive, non-transferable, non-sublicensable licence to access and use our Services. The licence granted to you does not give you any rights in Our Services (including any material that We may licence from third parties).
10.2 You must not copy, rent, sell, publish, republish, share, broadcast or otherwise transmit the Services (or any part of it) or make it available to the public.
11. Ending Your Subscription[A4]
11.1 You may cancel your Subscription at any time, We cannot offer any refunds and you will continue to have access to the Services for the remainder of your current Subscription (up until the renewal or expiry date, as applicable), whereupon the Contract will end.
11.2 If you wish to exercise your right to cancel under this Clause 11, you may inform Us of your cancellation by email or in your Account section. Cancellation by email is effective from the date on which you send Us your message. If you would prefer to contact Us directly to cancel, please email us at support@gojeo.freshdesk.com providing Us with your name, address, email address and telephone number.
11.3 We may ask you why you have chosen to cancel and may use any answers you provide to improve Our content and services, however please note that you are under no obligation to provide any details if you do not wish to.
11.4 Refunds under this Clause 11 will be issued to you as soon as possible, and in any event within 14 calendar days of the day on which you inform Us that you wish to cancel.
11.5 Refunds under this Clause 11 will be made using the same payment method that you used when purchasing your Subscription.
11.6 No refunds will be provided for remaining unused days under a monthly Account or Accounts.
11.7 We take all reasonable steps to ensure that the Service is available and functioning fully at all times. However, in the event the Service is unavailable or functioning incorrectly either wholly or partly We shall offer (where possible) the opportunity of repeat performance of the Service We should have offered to you in the first place – where appropriate and practical. Where this is not possible we will offer full or part-refunds.
11.8 We may terminate your user Account and all content and materials associated with it at any time where these Terms of Service have been breached. Such termination can be with or without notice.
PART 2 – TERMS OF USE
12. Intellectual Property Rights
12.1 All Content included on Our Site and the copyright and other intellectual property rights subsisting in that Content, unless specifically labelled otherwise, belongs to or has been licensed by Us. All Content is protected by applicable United Kingdom and international intellectual property laws and treaties.
12.2 Subject to sub-Clauses 12.3 and 12.5 you may not reproduce, copy, distribute, sell, rent, sub-licence, store, or in any other manner re-use Content from Our Site unless given express written permission to do so by Us.
12.3 You may:
12.3.1 Access, view and use Our Site in a web browser (including any web browsing capability built into other types of software or app);
12.3.2 Download Our Site (or any part of it) for caching;
12.3.3 Print one copy of any of any pages from Our Site;
12.3.4 Download extracts from pages on Our Site; and
12.3.5 Save pages from Our Site for later and/or offline viewing.
12.4 Our status as the owner and author of the Content on Our Site (or that of identified licensors, as appropriate) must always be acknowledged.
12.5 You may not use any Content saved or downloaded from Our Site for commercial purposes without first obtaining a licence from Us (or our licensors, as appropriate) to do so. This does not prohibit the normal access, viewing and use of Our Site for general information purposes whether by business users or consumers.
12.6 We do not condone or encourage in any way the posting of copyrighted or proprietary content or information by any users who are not the legal owners of such content.
12.7 Where notified of such breaches by the owner of such content We will remove the content from the Service as soon as practicable but only where We can reasonably ascertain the true owner of such content.
12.8 If as the owner of such content You believe that your rights have been infringed You should contact us as soon as possible and provide all relevant information in writing.
13. Links to Our Site
13.1 You may link to Our Site provided that:
13.1.1 You do so in a fair and legal manner;
13.1.2 You do not do so in a manner that suggests any form of association, endorsement or approval on Our part where none exists;
13.1.3 You do not use any logos or trade marks displayed on Our Site without Our express written permission; and
13.1.4 You do not do so in a way that is calculated to damage Our reputation or to take unfair advantage of it.
13.2 You may not link to Our Site from any other site the main content of which contains material that:
13.2.1 is sexually explicit;
13.2.2 is obscene, deliberately offensive, hateful or otherwise inflammatory;
13.2.3 promotes violence;
13.2.4 promotes or assists in any form of unlawful activity;
13.2.5 discriminates against, or is in any way defamatory of, any person, group or class of persons, race, sex, religion, nationality, disability, sexual orientation, or age;
13.2.6 is intended or is otherwise likely to threaten, harass, annoy, alarm, inconvenience, upset, or embarrass another person;
13.2.7 is calculated or is otherwise likely to deceive another person;
13.2.8 is intended or otherwise likely to infringe (or threaten to infringe) another person’s right to privacy;
13.2.9 misleadingly impersonates any person or otherwise misrepresents the identity or affiliation of a particular person in a way that is calculated to deceive (obvious parodies are not included in this definition provided that they do not fall within any of the other provisions of this sub-Clause 13.2);
13.2.10implies any form of affiliation with Us where none exists;
13.2.11infringes, or assists in the infringement of, the intellectual property rights (including, but not limited to, copyright, trade marks and database rights) of any other party; or
13.2.12is made in breach of any legal duty owed to a third party including, but not limited to, contractual duties and duties of confidence.
14. Links to Other Sites
Links to other sites may be included on Our Site. Unless expressly stated, these sites are not under Our control. We neither assume nor accept responsibility or liability for the content of third party sites. The inclusion of a link to another site on Our Site is for information only and does not imply any endorsement of the sites themselves or of those in control of them.
15. Disclaimers
15.1 Nothing on Our Site constitutes advice on which you should rely. It is provided for general information purposes only.
15.2 Insofar as is permitted by law, We make no representation, warranty, or guarantee that Our Site will meet your requirements, that it will not infringe the rights of third parties, that it will be compatible with all software and hardware, or that it will be secure.
15.3 We make reasonable efforts to ensure that the Content on Our Site is complete, accurate, and up-to-date. We do not, however, make any representations, warranties or guarantees (whether express or implied) that the Content is complete, accurate, or up-to-date.
16. Our Liability
16.1 To the fullest extent permissible by law, We accept no liability to any user for any loss or damage, whether foreseeable or otherwise, in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising out of or in connection with the use of (or inability to use) Our Site or the use of or reliance upon any Content included on Our Site.
16.2 To the fullest extent permissible by law, We exclude all representations, warranties, and guarantees (whether express or implied) that may apply to Our Site or any Content included on Our Site.
16.3 We accept no liability for loss of profits, sales, business or revenue; loss of business opportunity, goodwill or reputation; loss of anticipated savings; business interruption; or for any indirect or consequential loss or damage.
16.4 We exercise all reasonable skill and care to ensure that Our Site is free from viruses and other malware. We accept no liability for any loss or damage resulting from a virus or other malware, a distributed denial of service attack, or other harmful material or event that may adversely affect your hardware, software, data or other material that occurs as a result of your use of Our Site (including the downloading of any Content from it) or any other site referred to on Our Site.
16.5 We neither assume nor accept responsibility or liability arising out of any disruption or non-availability of Our Site resulting from external causes including, but not limited to, ISP equipment failure, host equipment failure, communications network failure, natural events, acts of war, or legal restrictions and censorship.
16.6 Nothing in these Terms and Conditions excludes or restricts Our liability for fraud or fraudulent misrepresentation, for death or personal injury resulting from negligence, or for any other forms of liability which cannot be excluded or restricted by law.
16.7 Our total liability to you for all other losses arising out of or in connection with any contract between you and Us, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall be limited to the total amount of your Subscription Fees in the 12 month period ending on the date of the breach or claim.
17. Viruses, Malware and Security
17.1 We exercise all reasonable skill and care to ensure that Our Site is secure and free from viruses and other malware.
17.2 You are responsible for protecting your hardware, software, data and other material from viruses, malware, and other internet security risks.
17.3 You must not deliberately introduce viruses or other malware, or any other material which is malicious or technologically harmful either to or via Our Site.
17.4 You must not attempt to gain unauthorised access to any part of Our Site, the server on which Our Site is stored, or any other server, computer, or database connected to Our Site.
17.5 You must not attack Our Site by means of a denial of service attack, a distributed denial of service attack, or by any other means.
17.6 By breaching the provisions of sub-Clauses 17.3 to 17.5 you may be committing a criminal offence under the Computer Misuse Act 1990. Any and all such breaches will be reported to the relevant law enforcement authorities and We will cooperate fully with those authorities by disclosing your identity to them. Your right to use Our Site will cease immediately in the event of such a breach.
18. Acceptable Usage Policy
18.1 You may only use Our Site in a manner that is lawful. Specifically you must not:
18.1.1 use Our Site in any way, or for any purpose, that is unlawful or fraudulent;
18.1.2 use Our Site to knowingly send, upload, or in any other way transmit data that contains any form of virus or other malware, or any other code designed to adversely affect computer hardware, software, or data of any kind;
18.1.3 use Our Site in any way, or for any purpose, that is intended to harm any person or persons in any way;
18.1.4 abuse, harass, threaten, stalk, defame or in anyway seek to violate the rights of another user or third-party;
18.1.5 publish or seek to distribute any material or information that is unlawful, harmful, obscene, indecent, libellous, profane, defamatory, racist, or in any other way inappropriate or objectionable;
18.1.6 use or harvest data provided by other users in a way that they would object to;
18.1.7 encourage illegal activity or activity that violates the rights of other Service users or third parties, whether individuals or organisations;
18.1.8 supply or post content calculated to deliberately mislead other users or third parties, including content falsely made to appear from or be endorsed by us;
18.1.9 pose as another user, third-party or organisation employee for the purposes of obtaining user or third-party information;
18.1.10 transmit or transfer any viruses, trojans, worms or any other malicious programs or code intended to spy on, gain control over, disrupt, destroy or in any other way impair any computer hardware or software or any other equipment.
18.1.11 attempt to gain access to our servers or other equipment in order to disrupt, impair, overload or otherwise hinder or compromise the safety, security or privacy of any of the Services provided by or relied upon by users and Us.
18.1.12 reframe or repurpose the Service or any content on it, remove, obscure or block any notices (and advertising as applicable) provided by us on the Service;
18.1.13 load or provide access to content on the Service or link to other content from the Service, which infringes the trademark, patent, trade secret or any other proprietary right of a third-party or infringes any intellectual property law;
18.1.14 send junk or spam email or emails or posts promoting pyramid schemes, chain letters or any other activity that invites users and others to participate in wasting their time and/or money; and
18.1.15 use any robot, spider, scraper or other technical means to access the Service or any content on the Service.
18.2 We reserve the right to suspend or terminate your access to Our Site if you materially breach the provisions of this Clause 18 or any of the other provisions of these Terms and Conditions. Specifically, We may take one or more of the following actions:
18.2.1 suspend, whether temporarily or permanently, your right to access Our Site;
18.2.2 issue you with a written warning;
18.2.3 take legal proceedings against you for reimbursement of any and all relevant costs on an indemnity basis resulting from your breach;
18.2.4 take further legal action against you as appropriate;
18.2.5 disclose such information to law enforcement authorities as required or as We deem reasonably necessary; and/or
18.2.6 any other actions which We deem reasonably appropriate (and lawful).
18.3 We hereby exclude any and all liability arising out of any actions (including, but not limited to those set out above) that We may take in response to breaches of these Terms and Conditions.
18.4 You must ensure that you comply fully with any and all local, national or international laws and/or regulations.
19. Events Outside of Our Control (Force Majeure)
19.1 We will not be liable for any failure or delay in performing Our obligations where that failure or delay results from any cause that is beyond Our reasonable control. Such causes include, but are not limited to: power failure, internet service provider failure, strikes, lock-outs or other industrial action by third parties, riots and other civil unrest, fire, explosion, flood, storms, earthquakes, subsidence, acts of terrorism (threatened or actual), acts of war (declared, undeclared, threatened, actual or preparations for war), epidemic or other natural disaster, or any other event that is beyond Our reasonable control.
19.2 If any event described under this Clause 19 occurs that is likely to adversely affect Our performance of any of Our obligations under these Terms of Service:
19.2.1 We will inform you as soon as is reasonably possible;
19.2.2 We will take all reasonable steps to minimise the delay;
19.2.3 To the extent that We cannot minimise the delay, Our affected obligations under these Terms of Service (and therefore the Contract) will be suspended and any time limits that We are bound by will be extended accordingly;
19.2.4 If the event outside of Our control continues for more than 90 days We will cancel the Contract and inform you of the cancellation. Any refunds due to you as a result of that cancellation will be paid to you as soon as is reasonably possible and in any event within 10 days of the date on which the Contract is cancelled and will be made using the same payment method that you used when ordering your Subscription.
20. Changes to these Terms and Conditions
20.1 We may alter these Terms and Conditions at any time. Any such changes will become binding on you upon your first use of Our Site after the changes have been implemented. You are therefore advised to check this page from time to time.
20.2 In the event of any conflict between the current version of these Terms and Conditions and any previous version(s), the provisions current and in effect shall prevail unless it is expressly stated otherwise.
21. Contacting Us
To contact Us, please use the following method: email: support@gojeo.freshdesk.com
22. Technical Support
22.1 We will provide technical support is provided via email and such other means as we decide in order to provide support service to users.
22.2 We reserve the right not to provide a full technical support service to free or trial Account users.
23. Communications from Us
23.1 If We have your contact details, We may from time to time send you important notices by email. Such notices may relate to matters including, but not limited to, service changes and changes to these Terms and Conditions.
23.2 We will never send you marketing emails of any kind without your express consent. If you do give such consent, you may opt out at any time. Any and all marketing emails sent by Us include an unsubscribe link. If you opt out of receiving emails from Us at any time, it may take up to 10 business days for Us to comply with your request. During that time, you may continue to receive emails from Us.
24. How We Use Your Personal Information (Data Protection)
24.1 All personal data that We may use will be collected, processed, and held in accordance with the provisions of the Data Protection Legislation and your rights thereunder.
24.2 For complete details of Our collection, processing, storage, and retention of personal data including, but not limited to, the purpose(s) for which personal data is used, the legal basis or bases for using it, details of your rights and how to exercise them, and personal data sharing (where applicable), please refer to Our Privacy Policy http://coldreach.com/privacy-policy
24.3 We will process any personal data in accordance with Part 3. If there are international transfers of personal data We will comply with the standard contractual clauses set out in Part 4.
25. Other Important Terms
25.1 We may transfer (assign) Our obligations and rights under these Terms of Service (and under the Contract, as applicable) to a third party (this may happen, for example, if We sell Our business). If this occurs, you will be informed by Us in writing. Your rights under these Terms of Service will not be affected and Our obligations under these Terms of Service will be transferred to the third party who will remain bound by them.
25.2 You may not transfer (assign) your obligations and rights under these Terms of Service (and under the Contract, as applicable) without Our express written permission.
25.3 The Contract is between you and Us. It is not intended to benefit any other person or third party in any way and no such person or party will be entitled to enforce any provision of these Terms of Service.
25.4 If any of the provisions of these Terms of Service are found to be unlawful, invalid or otherwise unenforceable by any court or other authority, that / those provision(s) shall be deemed severed from the remainder of these Terms of Service. The remainder of these Terms of Service shall be valid and enforceable.
25.5 No failure or delay by Us in exercising any of Our rights under these Terms of Service means that We have waived that right, and no waiver by Us of a breach of any provision of these Terms of Service means that We will waive any subsequent breach of the same or any other provision.
25.6 We may revise these Terms of Service from time to time in response to changes in relevant laws and other regulatory requirements. If We change these Terms of Service as they relate to your Subscription, We will give you reasonable advance notice of the changes and provide details of how to cancel if you are not happy with them.
26. Law and Jurisdiction
26.1 These Terms of Service, and the relationship between you and Us (whether contractual or otherwise) shall be governed by, and construed in accordance with, English law.
26.2 Any disputes concerning these Terms of Service, the relationship between you and Us, or any matters arising therefrom or associated therewith (whether contractual or otherwise) shall be subject to the exclusive jurisdiction of the courts of England and Wales.
PART 3 – DATA PROTECTION
1. Data Protection
All personal data that GoJeo Software Pty Ltd t/a Agency Bud may use will be collected, processed, and held in accordance with the provisions of EU Regulation 2016/679 General Data Protection Regulation (“GDPR”) and your rights under the GDPR.
2. Data Processing
2.1 In this Schedule:
2.1.1 “personal data”, “data subject”, “data controller”, “data processor”, and “personal data breach” shall have the meaning defined in Article 4, EU Regulation 2016/679 General Data Protection Regulation (“GDPR”); and
2.1.2 “Data Protection Legislation” means 1) unless and until EU Regulation 2016/679 General Data Protection Regulation (“GDPR”) is no longer directly applicable in the UK, the GDPR and any national implementing laws, regulations, and secondary legislation (as amended from time to time), in the UK and subsequently 2) the Data Protection Act 2018 (“DPA”) and 3) any legislation which succeeds the GDPR and or the DPA.
2.2 Both Parties shall comply with all applicable data protection requirements set out in the Data Protection Legislation. Neither this Clause 2 nor any other provisions of this Agreement shall relieve either Party of any obligations set out in the Data Protection Legislation and shall not remove or replace any of those obligations.
2.3 For the purposes of the Data Protection Legislation and for this Clause 2, GoJeo Software Pty Ltd t/a Agency Bud is the “Data Processor” and You are the “Data Controller”.
2.4 The type(s) of personal data, the scope, nature and purpose of the processing, and the duration of the processing shall be set out in the Annex to this Schedule.
2.5 The Data Controller shall ensure that it has in place all necessary consents and notices required to enable the lawful transfer of personal data to the Data Processor for the purposes described in the Annex to this Schedule.
2.6 The Data Processor shall, with respect to any personal data processed by it in relation to its performance of any of its obligations under this Agreement:
2.6.1 Process the personal data only on the written instructions of the Data Controller unless the Data Processor is otherwise required to process such personal data by law. The Data Processor shall promptly notify the Data Controller of such processing unless prohibited from doing so by law.
2.6.2 Ensure that it has in place suitable technical and organisational measures (as approved by the Data Controller) to protect the personal data from unauthorised or unlawful processing, accidental loss, damage or destruction. Such measures shall be proportionate to the potential harm resulting from such events, taking into account the current state of the art in technology and the cost of implementing those measures. Measures to be taken shall be agreed between the Data Controller and the Data Processor and set out in the Annex to this Schedule.
2.6.3 Ensure that any and all staff with access to the personal data (whether for processing purposes or otherwise) are contractually obliged to keep that personal data confidential; and
2.6.4 Not transfer any personal data outside of the European Economic Area without the prior written consent of the Data Controller and only if the following conditions are satisfied
2.6.4.1 The Data Controller and/or the Data Processor has/have provided suitable safeguards for the transfer of personal data;
2.6.4.2 Affected data subjects have enforceable rights and effective legal remedies;
2.6.4.3 The Data Processor complies with its obligations under the Data Protection Legislation, providing an adequate level of protection to any and all personal data so transferred; and
2.6.4.4 The Data Processor complies with all reasonable instructions given in advance by the Data Controller with respect to the processing of the personal data.
2.6.4.5 Assist the Data Controller at the Data Controller’s cost, in responding to any and all requests from data subjects in ensuring its compliance with the Data Protection Legislation with respect to security, breach notifications, impact assessments, and consultations with supervisory authorities or regulators (including, but not limited to, the Information Commissioner’s Office);
2.6.4.6 Notify the Data Controller without undue delay of a personal data breach;
2.6.4.7 On the Data Controller’s written instruction, delete (or otherwise dispose of) or return all personal data and any and all copies thereof to the Data Controller on termination of this Agreement unless it is required to retain any of the personal data by law; and
2.6.4.8 Maintain complete and accurate records of all processing activities and technical and organisational measures implemented necessary to demonstrate compliance with this Clause 2 and to allow for audits by the Data Controller and/or any party designated by the Data Controller.
2.7 The Data Processor shall not sub-contract any of its obligations with respect to the processing of personal data under this Clause 2.
Annex to Schedule
Pursuant to Clause 2.4 of the Schedule, the following sets out the type(s) of personal data, the scope, nature and purpose of the processing, and the duration of the processing:
Scope – Information including: Name, Email address, Company Address, Company phone number, Company website, Personal Linkedin Profile URL, Personal Facebook profile URL
Nature – Data is processed via retrieval of the publicly available sources
Purpose of processing – to implement the above
Duration of the processing –term of the agreement, Data shall not be stored for longer than 30 days
Types of personal data – to include: personal name, personal email address, personal linkedin profile URL, personal facebook profile URL
Categories of data subject Name, Email , Address, Phone number, company name, company website
Any person who has data on our system can request it's deletion by following This Link
PART 4 - STANDARD CONTRACTUAL CLAUSES – INTERNATIONAL DATA TRANSFERS
For the purposes of Article 26(2) of Directive 95/46/EC for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection
Name of the data exporting organisation:
The Customer’s entity that is a signatory to the Variation Agreement (acting on its own behalf and as agent of behalf of each of the members of the Customer Group that are based inside the European Economic Area and who export personal data).
(the data exporter)
And
The Supplier entity identified in Appendix 1 of the Variation Agreement (acting on its own behalf and as agent of behalf of each of the members of the Supplier Group that are based outside the European Economic Area and to whom personal data is exported).
(the data importer)
each a ‘party’; together ‘the parties’,
HAVE AGREED on the following Contractual Clauses (the Clauses) in order to adduce adequate safeguards with respect to the protection of privacy and fundamental rights and freedoms of individuals for the transfer by the data exporter to the data importer of the personal data specified in Appendix 1.
Clause 1
Definitions
For the purposes of the Clauses:
(a) ‘personal data’, ‘special categories of data’, ‘process/processing’, ‘controller’, ‘processor’, ‘data subject’ and ‘supervisory authority’ shall have the same meaning as in Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data;
(b) ‘the data exporter’ means the controller who transfers the personal data;
(c) ‘the data importer’ means the processor who agrees to receive from the data exporter personal data intended for processing on his behalf after the transfer in accordance with his instructions and the terms of the Clauses and who is not subject to a third country’s system ensuring adequate protection within the meaning of Article 25(1) of Directive 95/46/EC;
(d) ‘the sub-processor’ means any processor engaged by the data importer or by any other sub-processor of the data importer who agrees to receive from the data importer or from any other sub-processor of the data importer personal data exclusively intended for processing activities to be carried out on behalf of the data exporter after the transfer in accordance with his instructions, the
(e) terms of the Clauses and the terms of the written subcontract;
(f) ‘the applicable data protection law’ means the legislation protecting the fundamental rights and freedoms of individuals and, in particular, their right to privacy with respect to the processing of personal data applicable to a data controller in the Member State in which the data exporter is established;
(g) ‘technical and organisational security measures’ means those measures aimed at protecting personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing.
Clause 2
Details of the transfer
The details of the transfer and in particular the special categories of personal data where applicable are specified in Appendix 1 which forms an integral part of the Clauses.
Clause 3
Third-party beneficiary clause
1. The data subject can enforce against the data exporter this Clause, Clause 4(b) to (i), Clause 5(a) to (e), and (g) to (j), Clause 6(1) and (2), Clause 7, Clause 8(2), and Clauses 9 to 12 as third-party beneficiary.
2. The data subject can enforce against the data importer this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where the data exporter has factually disappeared or has ceased to exist in law unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law, as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity.
3. The data subject can enforce against the sub-processor this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity. Such third-party liability of the sub- processor shall be limited to its own processing operations under the Clauses.
4. The parties do not object to a data subject being represented by an association or other body if the data subject so expressly wishes and if permitted by national law.
Clause 4
Obligations of the data exporter
The data exporter agrees and warrants:
(a) that the processing, including the transfer itself, of the personal data has been and will continue to be carried out in accordance with the relevant provisions of the applicable data protection law (and, where applicable, has been notified to the relevant authorities of the Member State where the data exporter is established) and does not violate the relevant provisions of that State;
(b) that it has instructed and throughout the duration of the personal data-processing services will instruct the data importer to process the personal data transferred only on the data exporter’s behalf and in accordance with the applicable data protection law and the Clauses;
(c) that the data importer will provide sufficient guarantees in respect of the technical and organisational security measures specified in Appendix 2 to this contract;
(d) that after assessment of the requirements of the applicable data protection law, the security measures are appropriate to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing, and that these measures ensure a level of security appropriate to the risks presented by the processing and the nature of the data to be protected having regard to the state of the art and the cost of their implementation;
(e) that it will ensure compliance with the security measures;
(f) that, if the transfer involves special categories of data, the data subject has been informed or will be informed before, or as soon as possible after, the transfer that its data could be transmitted to a third country not providing adequate protection within the meaning of Directive 95/46/EC;
(g) to forward any notification received from the data importer or any sub-processor pursuant to Clause 5(b) and Clause 8(3) to the data protection supervisory authority if the data exporter decides to continue the transfer or to lift the suspension;
(h) to make available to the data subjects upon request a copy of the Clauses, with the exception of Appendix 2, and a summary description of the security measures, as well as a copy of any contract for sub-processing services which has to be made in accordance with the Clauses, unless the Clauses or the contract contain commercial information, in which case it may remove such commercial information;
(i) that, in the event of sub-processing, the processing activity is carried out in accordance with Clause 11 by a sub- processor providing at least the same level of protection for the personal data and the rights of data subject as the data importer under the Clauses; and
(j) that it will ensure compliance with Clause 4(a) to (i).
Clause 5
Obligations of the data importer
The data importer agrees and warrants:
(a) to process the personal data only on behalf of the data exporter and in compliance with its instructions and the Clauses; if it cannot provide such compliance for whatever reasons, it agrees to inform promptly the data exporter of its inability to comply, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;
(b) that it has no reason to believe that the legislation applicable to it prevents it from fulfilling the instructions received from the data exporter and its obligations under the contract and that in the event of a change in this legislation which is likely to have a substantial adverse effect on the warranties and obligations provided by the Clauses, it will promptly notify the change to the data exporter as soon as it is aware, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;
(c) that it has implemented the technical and organisational security measures specified in Appendix 2 before processing data transferred;
(d) that it will promptly notify the data exporter about:
(i) any legally binding request for disclosure of the personal data by a law enforcement authority unless otherwise prohibited, such as a prohibition under criminal law to preserve the confidentiality of a law enforcement investigation;
(ii) any accidental or unauthorised access; and
(iii) any request received directly from the data subjects without responding to that request, unless it has been otherwise authorised to do so;
(e) to deal promptly and properly with all inquiries from the data exporter relating to its processing of the personal data subject to the transfer and to abide by the advice of the supervisory authority with regard to the processing of the data transferred;
(f) at the request of the data exporter to submit its data-processing facilities for audit of the processing activities covered by the Clauses which shall be carried out by the data exporter or an inspection body composed of independent members and in possession of the required professional qualifications bound by a duty of confidentiality, selected by the data exporter, where applicable, in agreement with the supervisory authority;
(g) to make available to the data subject upon request a copy of the Clauses, or any existing contract for sub-processing, unless the Clauses or contract contain commercial information, in which case it may remove such commercial information, with the exception of Appendix 2 which shall be replaced by a summary description of the security measures in those cases where the data subject is unable to obtain a copy from the data exporter;
(h) that, in the event of sub-processing, it has previously informed the data exporter and obtained its prior written consent;
(i) that the processing services by the sub-processor will be carried out in accordance with Clause 11;
(j) to send promptly a copy of any sub-processor agreement it concludes under the Clauses to the data exporter.
Clause 6
Liability
1. The parties agree that any data subject, who has suffered damage as a result of any breach of the obligations referred to in Clause 3 or in Clause 11 by any party or sub-processor is entitled to receive compensation from the data exporter for the damage suffered.
2. If a data subject is not able to bring a claim for compensation in accordance with paragraph 1 against the data exporter, arising out of a breach by the data importer or his sub-processor of any of their obligations referred to in Clause 3 or in Clause 11, because the data exporter has factually disappeared or ceased to exist in law or has become insolvent, the data importer agrees that the data subject may issue a claim against the data importer as if it were the data exporter, unless any successor entity has assumed the entire legal obligations of the data exporter by contract of by operation of law, in which case the data subject can enforce its rights against such entity.
The data importer may not rely on a breach by a sub-processor of its obligations in order to avoid its own liabilities.
3. If a data subject is not able to bring a claim against the data exporter or the data importer referred to in paragraphs 1 and 2, arising out of a breach by the sub-processor of any of their obligations referred to in Clause 3 or in Clause 11 because both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, the sub-processor agrees that the data subject may issue a claim against the data sub-processor with regard to its own processing operations under the Clauses as if it were the data exporter or the data importer, unless any successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law, in which case the data subject can enforce its rights against such entity. The liability of the sub-processor shall be limited to its own processing operations under the Clauses.
Clause 7
Mediation and jurisdiction
1. The data importer agrees that if the data subject invokes against it third-party beneficiary rights and/or claims compensation for damages under the Clauses, the data importer will accept the decision of the data subject:
(a) to refer the dispute to mediation, by an independent person or, where applicable, by the supervisory authority;
(b) to refer the dispute to the courts in the Member State in which the data exporter is established.
2. The parties agree that the choice made by the data subject will not prejudice its substantive or procedural rights to seek remedies in accordance with other provisions of national or international law.
Clause 8
Cooperation with supervisory authorities
1. The data exporter agrees to deposit a copy of this contract with the supervisory authority if it so requests or if such deposit is required under the applicable data protection law.
2. The parties agree that the supervisory authority has the right to conduct an audit of the data importer, and of any sub-processor, which has the same scope and is subject to the same conditions as would apply to an audit of the data exporter under the applicable data protection law.
3. The data importer shall promptly inform the data exporter about the existence of legislation applicable to it or any sub-processor preventing the conduct of an audit of the data importer, or any sub-processor, pursuant to paragraph 2. In such a case the data exporter shall be entitled to take the measures foreseen in Clause 5(b).
Clause 9
Governing law
The Clauses shall be governed by the law of the Member State in which the data exporter is established, namely England and Wales
Clause 10
Variation of the contract
The parties undertake not to vary or modify the Clauses. This does not preclude the parties from adding clauses on business related issues where required as long as they do not contradict the Clause.
Clause 11
Sub-processing
1. The data importer shall not subcontract any of its processing operations performed on behalf of the data exporter under the Clauses without the prior written consent of the data exporter. Where the data importer subcontracts its obligations under the Clauses, with the consent of the data exporter, it shall do so only by way of a written agreement with the sub-processor which imposes the same obligations on the sub-processor as are imposed on the data importer under the Clauses. Where the sub-processor fails to fulfil its data protection obligations under such written agreement the data importer shall remain fully liable to the data exporter for the performance of the sub-processor’s obligations under such agreement.
2. The prior written contract between the data importer and the sub-processor shall also provide for a third-party beneficiary clause as laid down in Clause 3 for cases where the data subject is not able to bring the claim for compensation referred to in paragraph 1 of Clause 6 against the data exporter or the data importer because they have factually disappeared or have ceased to exist in law or have become insolvent and no successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law. Such third-party liability of the sub-processor shall be limited to its own processing operations under the Clauses.
3. The provisions relating to data protection aspects for sub-processing of the contract referred to in paragraph 1 shall be governed by the law of the Member State in which the data exporter is established, namely England and Wales.
4. The data exporter shall keep a list of sub-processing agreements concluded under the Clauses and notified by the data importer pursuant to Clause 5(j), which shall be updated at least once a year. The list shall be available to the data exporter’s data protection supervisory authority.
Clause 12
Obligation after the termination of personal data-processing services
1. The parties agree that on the termination of the provision of data-processing services, the data importer and the sub-processor shall, at the choice of the data exporter, return all the personal data transferred and the copies thereof to the data exporter or shall destroy all the personal data and certify to the data exporter that it has done so, unless legislation imposed upon the data importer prevents it from returning or destroying all or part of the personal data transferred. In that case, the data importer warrants that it will guarantee the confidentiality of the personal data transferred and will not actively process the personal data transferred anymore.
2. The data importer and the sub-processor warrant that upon request of the data exporter and/or of the supervisory authority, it will submit its data-processing facilities for an audit of the measures referred to in paragraph 1
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