Where the Service is being provided from the United Kingdom, the contracting party shall be SmartComms SC Limited a company registered in England and Wales under number 4303041, having its registered office at Suite 23, LCLB, 95 Mortimer Street, London, W1W 7GB.
Where the Service is being provided from the United States of America, the contracting party shall be SmartComms LLC whose registered office is situated at 15950 N. Dallas Pkwy, Suite 400 Dallas, Texas 75248 United States.
IT IS HEREBY AGREED:
|References to the “Full SmartCom Collaborate Services” are to the services from time to time offered by SmartCom to SmartCom Customers relating to the negotiation and data capture of documents (“Documents”) , including:
|the uploading of contact and other data related to counterparties with whom the SmartCom Customer has relationships;
|the generation of drafts of the relevant Documents;
|the negotiation of Documents via a web-based platform;
|the capture of audit trail, comments and internal escalations with respect to the negotiations of the Documents;
|the capture of data points representing any negotiated legal and commercial terms of the Documents; and
|Participation at SmartCom Customer’s discretion. Each SmartCom Customer has final responsibility for all decisions regarding its decision to engage with a Contributor on the SmartCom Collaborate platform and all terms and other content (together “Subscriber Content”) provided by it to you during the course of such engagement. A SmartCom Customer may suspend or cancel such engagement at any time and without prior notification. No SmartCom Party shall be liable for the delivery, accuracy or completeness of any Subscriber Content or of any terms or other content that you provide to an SmartCom Customer (together “Your Content”).
|Reported errors. If you experience any difficulty or error in your use of the Services, you shall promptly notify SmartCom.
|Intellectual Property. Contributor agrees that, without limitation, all information, documentation, computer programs, systems, customizations, enhancements and websites authored, prepared or created in connection with the Service, are the sole and exclusive property of one or more of the SmartCom Parties or third parties and shall not be considered works made for hire.
|Contributor Warranty. you warrant and represent to the SmartCom Parties that:
|your use of the Service shall not violate any applicable local, state, national or international law, statute, ordinance, rule or regulation, including those relating to Personal Data (as herein defined);
|where you upload or exchange Your Content via the Service belonging to a third party, you have obtained the necessary consents and authority in order to do so; and
|You represent, warrant and undertake that you: (1) have obtained or, prior to exchanging Your Content via the Service, will obtain, and will maintain, all rights, approvals and consents necessary to provide and share Your Content with SmartCom Customer from Designated Users, and those individuals or entities for which they provide personal data via the Services; and (2) have obtained or will have obtained prior to providing Your Content as contemplated hereunder, the written and informed legal basis/bases of processing of any persons whose personal data is contained within Your Content in order to enable SmartCom and SmartCom Customer to handle the personal data in connection with the Services.
|Each SmartCom and Contributor agrees that it shall comply with all applicable laws and regulations applicable to it in any relevant jurisdiction including, but not limited to, the applicable laws and regulations relating to the processing of personal data and privacy and any replacements, updates or supplements to any of the above.
|SmartCom shall: (1) only process personal data supplied by Contributor to perform the Services; (2) not process personal data supplied by Contributor for any purpose other than to perform the Services or as may otherwise be expressly authorised by Contributor; and (3) implement appropriate technical and organisational measures against the unauthorised or unlawful processing of such personal data and against the accidental loss or destruction of, or damage to, such personal data.
|SmartCom may retain the company name of the Contributor and the company group email address in the Services address book for the purposes of allowing collaboration with SmartCom Customers. For the avoidance of doubt this does not contain Personal Data.
|Acknowledgements. You agree that:
none of the SmartCom Parties owes you any duty to monitor or enforce compliance by any SmartCom Customer with any provision, regulation or law which relates to its use of the Services;
none of the SmartCom Parties warrants that by subscribing to or using the Services you shall be deemed compliant with any applicable rules, regulations or laws;
none of the SmartCom Parties undertakes any responsibility towards any person or entity on whose behalf you are acting on and you are responsible for advising any such person or entity of any such matter and obtaining any requisite permission;
|you will ensure that all Your Content uploaded or sent via the Services to an SmartCom Customer is accurate and up-to-date;
|you shall only use or disclose Subscriber Content uploaded or sent via the Services for the purposes for which it was permissioned;
|you shall only use the Services (including any web-based comment or message facility) for the purposes for which you are permissioned;
|except as otherwise permitted herein, you may not provide access to the Services to any third party;
|The parties acknowledge that the Services may contain information that is confidential or proprietary to Contributor, the SmartCom Parties (or any of them), Subscriber or one or more third parties to whom such party owes a duty of confidentiality (“Confidential Information”). The parties shall employ commercially reasonable measures to protect Confidential Information from unauthorized or inadvertent disclosure, which shall mean measures no less protective than those measures that the receiving party employs to protect its own information of a like nature.
|Confidentiality of SmartCom information. Information about the processing capabilities of the Services, the technology or interface features of the Services, and the notices and updates sent by SmartCom to you are proprietary and confidential information of SmartCom and its licensors and you hereby agree not to share such information with third parties or use such information except to support your use of the Services.
|Notwithstanding the aforementioned, the following shall not be considered Confidential Information:
|information that becomes generally available to the public (including through public registries) other than as a result of a disclosure by the receiving party in violation of an obligation of confidentiality;
|information that was lawfully in the receiving party’s possession on a non-confidential basis prior to disclosure of the same by or on behalf of the disclosing party;
|information that becomes lawfully available to the receiving party on a non-confidential basis from a source other than disclosing party or its agents, advisors, or representatives which such source is entitled, to the best of the receiving party’s knowledge, to make the disclosure; or
|information that has been or is subsequently conceived or discovered by the receiving party, without use of the Confidential Information.
|Disclosure of Information. Contributor agrees that any information held by SmartCom in the provision of the Services may be provided to or SmartCom may permit access to the same by:
|any regulatory, governmental, or taxing authority, body or agency;
|any person or entity where or to the extent that SmartCom or another SmartCom Party is permitted or required to do so by law or by a court order;
|any person or entity where the information is or becomes generally available in the public domain other than as a result of unauthorized disclosure by SmartCom or another SmartCom Party; and
|any third party vendor under confidentiality agreement for the purpose of improving or disseminating the Services.
|In connection with the preparation of the Services, SmartCom has collaborated with affiliates of SmartComms SC Limited collectively referred to for these purposes as the “SmartCom Parties”.
|Each agreement, undertaking, acknowledgement, representation and warranty on the part of Contributor under these Terms or Use shall apply also for the benefit of all SmartCom Parties and as such shall be separately enforceable by, and give rise to separate rights and remedies of, each SmartCom Party.
|Involvement with third parties.
|Links to SmartCom Customer or third party sites. The Services may allow access to other websites. Save with respect to the websites of SmartCom Parties, such other sites are not under the control of any SmartCom Party, and the SmartCom Parties are not responsible for the contents of any linked site. SmartCom provides links only as a convenience, and such inclusion of any link does not imply endorsement by the SmartCom Parties of the site or any part of its contents.
|None of the SmartCom Parties or their respective affiliates shall in any way be liable to Contributor or any client of Contributor for any inaccuracies, errors or omissions, regardless of cause, in the Services provided hereunder, or for any damages (whether direct or indirect) resulting therefrom.
|No Advice. The Services is intended only for professionals and is not, and should not be construed as, financial, legal or other advice of any kind, nor should it be regarded as an offer or as a solicitation of an offer to buy, sell or otherwise deal in any investment. Nothing in the Services constitutes a solicitation by any SmartCom Party of the purchase or sale of loans, securities or any investment.
|Modification. SmartCom reserves the right to modify the permitted and prohibited uses of the Services. The Services is subject to modification by SmartCom to reflect statistical, technical, administrative, market-based, legal, regulatory or any other changes that SmartCom determines in good faith are required or desirable. SmartCom will provide notice to Contributor of any modifications that materially and adversely affect Contributor’s use or access to the Services.
|Security and Login.
|Security. Contributor shall be solely responsible for any and all necessary equipment and connections from its own computer systems to allow access to the Services. Contributor shall ensure that it maintains security systems and procedures reasonably designed to prevent the unauthorized access to or misuse or disruption of the Services.
|Login. Contributor acknowledges that log-in access codes and passwords are for use only by Contributor and its Designated Users. Contributor agrees to accept sole responsibility for the use and protection of any such log-in access codes or passwords. Contributor shall notify SmartCom immediately upon learning of any unauthorized use of its log-in access codes or passwords. For any instruction, communication, or other information (“Transmission”) SmartCom receives from someone using Contributor’s log-in access codes and passwords, SmartCom is entitled to consider such Transmission as having been sent by Contributor.
|System Integrity and Data Integrity.
|System Integrity. Concerning your use of the Services, you agree not to:
|interfere with or attempt to interfere with the proper working of the Services;
|upload or transmit any content to the Services which contains any unlawful, fraudulent, harassing, libelous, or obscene material;
|upload any content to the Services containing a virus, bug, or other harmful item; or
|publish, perform, distribute, prepare derivative works, copy, or reverse engineer the Services;
|frame the Services, place pop-up windows over its pages, or otherwise affect the display of its pages. This means, among other activities, that You agree not to engage in the practices of “screen scraping,” “database scraping,” or any other activity with the purpose of obtaining lists of users or other information.
|SmartCom Parties cannot and do not guarantee that Subscriber Content or content on the Services will be free of infection or viruses, worms, or other code or defects that manifest contaminating or destructive properties. SmartCom agrees to not knowingly upload to the Services any files (i.e., files created by SmartCom) that contain a virus, bug, or other harmful item. However, both parties understand that they cannot and do not guarantee or warrant that files or software of any kind, or from any source, available for downloading through the Services, will be free of infection or viruses, worms, or other code or defects that manifest contaminating or destructive properties.
|Data Integrity. You are responsible for confirming the accuracy of Your Content uploaded or sent via the Services, and for maintaining copies of Your Content on your own systems.
|Fees. THERE ARE CURRENTLY NO FEES PAYABLE FOR THE SERVICE. Notwithstanding the foregoing, SmartCom reserves the right to introduce and/or amend the fees for the Services once per calendar year, subject to SmartCom providing Contributor with no less than 30 days’ prior notice (by email or via the Services). If Contributor does not accept such fees, Contributor may provide written notice of termination to SmartCom at any time prior to the introduction or amendment of such fees (“Relevant Date”) and such termination will take effect on the Relevant Date. Where any fees become payable, Contributor shall pay to SmartCom or to the relevant taxing authority, as appropriate, any applicable sales, use, goods and services, value added, withholding or similar taxes so that after payment of such taxes the amount SmartCom receives is not less than its fees. Contributor shall hold SmartCom harmless from all claims and liability arising from Contributor’s failure to pay any such taxes, including penalties, interest, duties, tariffs or charges.
|Trademarks. The names, trademarks, service marks and logos appearing on the Services may not be used by You in any advertising or publicity, or otherwise to indicate SmartCom’s sponsorship of or affiliation with any product, service, event or organization without Thunderhead’s prior express written permission
|Feedback. Contributor agrees to provide SmartCom, all relevant and constructive ideas, comments, suggestions, or other feedback on the features or functionality of the Services (“Feedback”). Contributor shall take all appropriate and necessary actions to ensure any intellectual property rights are transferred to and vest in SmartCom. Contributor shall not assert any ownership rights in the Feedback whatsoever. SmartCom shall, without limitation, be entitled to use the Feedback for the purpose of improving and creating derivative works of the Services and or use in marketing materials for the Services.
1. Definitions and Interpretation
“DP Regulator” means any person or regulatory body with responsibility for monitoring and/or enforcing compliance with the Privacy Laws;
“Privacy Laws” means any laws and regulations in relating to privacy or the use or processing of data relating to natural persons, including: (a) the Privacy and Electronic Communications (EC Directive) Regulations 2003; (b) EU Regulation 2016/679 (“GDPR”); (c) General Data Protection Regulation ((EU) 2016/679) as it forms part of UK law by virtue of section 3 of the European Union (Withdrawal) Act 2018 (“UK GDPR”); (d) the Data Protection Act 2018; and (e) any laws or regulations ratifying, implementing, adopting, supplementing or replacing GDPR.
2. Data Protection
|take reasonable steps to ensure that any personnel who have access to such Personal Data are subject to binding obligations of confidentiality when processing such Personal Data;
|implement and maintain technical and organizational measures and procedures to ensure an appropriate level of security for such Personal Data, including protecting such Personal Data against the risks of accidental, unlawful or unauthorized destruction, loss, alteration, disclosure, dissemination or access;
|inform Contributor if any such Personal Data is (while within SmartCom’s possession or control) subject to a personal data breach (as defined in Article 4 of GDPR) without undue delay after becoming aware, and provide the following information:
describe the nature of the personal data breach including where possible, the categories and approximate number of data subjects concerned, and the categories and approximate number of Personal Data records;
communicate the name and contact details of the DPO or other contract point where more information can be obtained;
describe the likely consequences of the personal data breach; and
describe the measures taken or proposed to be taken by SmartCom to address the personal data breach, including, where appropriate, measures to mitigate its possible adverse effects;
|provide to Contributor and any DP Regulator (at Contributor’s cost and at SmartCom’s then time and material rates) all information and assistance necessary to demonstrate or ensure compliance with the obligations in this section 2.4;
|no more than once every calendar year and subject to SmartCom having the right to do so, permit Contributor or its representatives (at Contributor’s cost at SmartCom’s then time and material rates) to access any relevant premises, personnel or records of SmartCom on reasonable notice (but being no less than fifteen (15) Working Days) to audit and otherwise verify compliance with this section 2.4);
|to the extent feasible based upon the nature of processing conducted by SmartCom, notify Contributor within seven (7) Working Days if it receives a request from a Data Subject to exercise its rights under the Privacy Laws in relation to that person’s Personal Data; and
|to the extent feasible based upon the nature of processing conducted by SmartCom, provide Contributor with its reasonable co-operation and assistance in relation to any request made by a Data Subject to exercise its rights under the Privacy Laws in relation to that person’s Personal Data. SmartCom shall not charge for such requests unless such request is manifestly unjust or excessive, in which case SmartCom shall reserve the right to charge Contributor a reasonable administration fee.
|In the course of SmartCom acting as processor, if either Party receives any complaint, notice or communication which relates directly or indirectly to the processing of Personal Data by the other Party or to either Party’s compliance with the Privacy Laws, it shall promptly notify the other Party and it shall provide the other Party with reasonable co-operation and assistance in relation to any such complaint, notice or communication.
|Appendix 1 (Particulars of Processing)
|The Personal Data processing activities carried out by SmartCom may be described as follows:
|Prospects, contributors, business partners and vendors of Contributor (who are natural persons);
|Employees or contact persons of Contributor’s prospects, customers, business partners and vendors;
|Employees, agents, advisors, freelancers of Contributor (who are natural persons); and
|Contributor’s users authorised by Contributor and SmartCom to use the Services.