Legal Document For Our Partners Program

Please read these Terms and Conditions carefully. All contracts that the Provider may enter into from time to time for the provision of the Hosted Services[ and related services] shall be governed by these Terms and Conditions[, and the Provider will ask the Customer for the Customer's express written acceptance of these Terms and Conditions before providing any such services to the Customer].

• 1.1 Except to the extent expressly provided otherwise, in these Terms and Conditions:
  1. "Account" means an account enabling a person to access and use the Hosted Services[, including both administrator accounts and user accounts];
  2. "Agreement" means a contract between the parties incorporating these Terms and Conditions, and any amendments to that contract from time to time;
  3. "Business Day" means any weekday other than a bank or public holiday in [England];
  4. "Business Hours" means the hours of [09:00 to 17:00 GMT/BST] on a Business Day;
  5. "Charges" means the following amounts:
     1. [the amounts specified in Section 3 of the Services Order Form];
     2. [such amounts as may be agreed in writing by the parties from time to time]; and
     3. [amounts calculated by multiplying the Provider's [standard time-based charging rates (as notified by the Provider to the Customer before the date of the Agreement)] by the time spent by the Provider's personnel performing [the Support Services] (rounded [down by the Provider to the nearest quarter hour])];
  6. "Customer" means the person or entity identified as such in Section 1 of the Services Order Form;
  7. "Customer" Confidential Information" means:
     1. any information disclosed by [or on behalf of ]the Customer to the Provider [during the Term] OR [at any time before the termination of the Agreement] (whether disclosed in writing, orally or otherwise) that at the time of disclosure:
        1. was marked[ or described] as "confidential"; or
        2. should have been reasonably understood by the Provider to be confidential; and
     2. [the Customer Data];
  8. "Customer Data" means [all data, works and materials: uploaded to or stored on the Platform by the Customer; transmitted by the Platform at the instigation of the Customer; supplied by the Customer to the Provider for uploading to, transmission by or storage on the Platform; or generated by the Platform as a result of the use of the Hosted Services by the Customer];
  9. "Customer Personal Data" means any Personal Data that is processed by the Provider on behalf of the Customer in relation to the Agreement][, but excluding [data] with respect to which the Provider is a data controller];
  10. "Data Protection Laws" means [all applicable laws relating to the processing of Personal Data including, while it is in force and applicable to Customer Personal Data, the General Data Protection Regulation (Regulation (EU) 2016/679)];
  11. "Documentation" means [the documentation for the Hosted Services produced by the Provider and delivered or made available by the Provider to the Customer];
  12. "Effective Date" means [the date upon which the parties execute a hard-copy Services Order Form; or, following the Customer completing and submitting the online Services Order Form published by the Provider on the Provider's website, the date upon which the Provider sends to the Customer an order confirmation];
  13. "Force Majeure Event" means [an event, or a series of related events, that is outside the reasonable control of the party affected (including failures of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars]);
  14. "Hosted Services" means [name of hosted services][, as specified [in the Hosted Services Specification],] which will be made available by the Provider to the Customer as a service via the internet in accordance with these Terms and Conditions;
  15. "Hosted Services Defect" means a defect, error or bug in the Platform having [an adverse effect] OR [a material adverse effect] on [ the appearance, operation, functionality or performance] of the Hosted Services[, but excluding any defect, error or bug caused by or arising as a result of:
      1. [any act or omission of the Customer or any person authorised by the Customer to use the Platform or Hosted Services];
      2. [any use of the Platform or Hosted Services contrary to the Documentation, whether by the Customer or by any person authorised by the Customer];
      3. [a failure of the Customer to perform or observe any of its obligations in the Agreement]; and/or
      4. [an incompatibility between the Platform or Hosted Services and any other system, network, application, program, hardware or software not specified as compatible in the Hosted Services Specification];]
  16. "Hosted Services Specification" means the specification for the Platform and Hosted Services set out in [Section 2 of the Services Order Form and in the Documentation];
  17. "Intellectual Property Rights" means [all intellectual property rights wherever in the world, whether registrable or unregistrable, registered or unregistered, including any application or right of application for such rights (and these "intellectual property rights" include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trade marks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs)];
  18. "Maintenance Services" means the general maintenance of the Platform and Hosted Services, and the application of Updates and Upgrades;
  19. "Mobile App" means the mobile application known as [mobile application name] that is made available by the Provider through [the Google Play Store and the Apple App Store];
  20. "Mobile App" means the mobile application known as [mobile application name] that is made available by the Provider through [the Google Play Store and the Apple App Store];
  21. "Personal Data" has the meaning given to it in the General Data Protection Regulation (Regulation (EU) 2016/679)];
  22. "Platform" means [the platform managed by the Provider and used by the Provider to provide the Hosted Services][, including [the application and database software for the Hosted Services, the system and server software used to provide the Hosted Services, and the computer hardware on which that application, database, system and server software is installed]];
  23. "Provider" means [[individual name] of [address]] OR [[company name], a company incorporated in [England and Wales] (registration number [registration number]) having its registered office at [address]] OR [[partnership name], a partnership established under the laws of [England and Wales] having its principal place of business at [address]];
  24. "Services" means [any services that the Provider provides to the Customer, or has an obligation to provide to the Customer, under these Terms and Conditions];
  25. "Services Order Form" means [an online order form published by the Provider and completed and submitted by the Customer, or a hard-copy order form signed or otherwise agreed by or on behalf of each party, in each case incorporating these Terms and Conditions by reference];
  26. "Support Services" means support in relation to [the use of, and the identification and resolution of errors in, the Hosted Services, but shall not include the provision of training services];
  27. "Supported Web Browser" means [the current release from time to time of Microsoft Edge, Mozilla Firefox, Google Chrome or Apple Safari][, or any other web browser that the Provider agrees in writing shall be supported];
  28. "Supported Web Browser" means [the current release from time to time of Microsoft Edge, Mozilla Firefox, Google Chrome or Apple Safari][, or any other web browser that the Provider agrees in writing shall be supported];
  29. "Term" means [the term of the Agreement, commencing in accordance with Clause 2.1 and ending in accordance with Clause 2.2];
  30. "Terms and Conditions" means all the documentation containing the provisions of the Agreement, namely the Services Order Form, the main body of these Terms and Conditions and the Schedules, including any amendments to that documentation from time to time;
  31. "Update" means [a hotfix, patch or minor version update to any Platform software]; and
  32. "Upgrade" means [a major version upgrade of any Platform software].

• 2.1 [The Provider shall ensure that the Platform will[, on the Effective Date,] automatically generate an Account for the Customer and provide to the Customer login details for that Account.] OR [The Provider shall create an Account for the Customer and shall provide to the Customer login details for that Account[ on or promptly following the Effective Date].]
• 2.2 The Provider hereby grants to the Customer a [worldwide, non-exclusive] licence to use the Hosted Services[ by means of [a Supported Web Browser]][ for [the internal business purposes of the Customer]][ in accordance with the Documentation] during the Term.
• 2.3 The licence granted by the Provider to the Customer under Clause 3.2 is subject to the following limitations:
  1. [the Hosted Services may only be used by [the officers, employees, agents and subcontractors of the Customer]];
  2. [the Hosted Services may only be used by the named users identified in [the Services Order Form] OR [[identify document]], providing that the Customer may change, add or remove a designated named user in accordance with [the procedure set out therein]]; and
  3. [the Hosted Services must not be used at any point in time by more than the number of concurrent users specified in [the Services Order Form] OR [[identify document]], providing that the Customer may add or remove concurrent user licences in accordance with [the procedure set out therein]].
• 2.4 Except to the extent expressly permitted in these Terms and Conditions or required by law on a non-excludable basis, the licence granted by the Provider to the Customer under Clause 3.2 is subject to the following prohibitions:
  1. [the Customer must not sub-license its right to access and use the Hosted Services];
  2. [the Customer must not permit any unauthorised person to access or use the Hosted Services];
  3. [the Customer must not use the Hosted Services to provide services to third parties];
  4. [the Customer must not republish or redistribute any content or material from the Hosted Services]; and
  5. [the Customer must not make any alteration to the Platform[, except as permitted by the Documentation]].
• 2.5 The Customer shall use reasonable endeavours, including reasonable security measures relating to[ administrator] Account access details, to ensure that no unauthorised person may gain access to the Hosted Services using an[ administrator] Account.
• 2.6 The Provider shall use[ all] reasonable endeavours to maintain the availability of the Hosted Services to the Customer [at the gateway between the public internet and the network of the hosting services provider for the Hosted Services], but does not guarantee 100% availability.
• 2.7 For the avoidance of doubt, downtime caused directly or indirectly by any of the following shall not be considered a breach of the Agreement:
  1. a Force Majeure Event;
  2. a fault or failure of the internet or any public telecommunications network;
  3. a fault or failure of the Customer's computer systems or networks;
  4. any breach by the Customer of the Agreement; or
  5. scheduled maintenance carried out in accordance with the Agreement.
• 2.8 The Customer must comply with Schedule 1 (Acceptable Use Policy), and must ensure that all persons using the Hosted Services with the authority of the Customer or by means of an[ administrator] Account comply with Schedule 1 (Acceptable Use Policy).
• 2.9 The Customer must not use the Hosted Services in any way that causes, or may cause, damage to the Hosted Services or Platform or impairment of the availability or accessibility of the Hosted Services.
• 2.10 The Customer must not use the Hosted Services:
  1. in any way that is unlawful, illegal, fraudulent or harmful; or
  2. in connection with any unlawful, illegal, fraudulent or harmful purpose or activity.
• 2.11 For the avoidance of doubt, the Customer has no right to access the software code (including object code, intermediate code and source code) of the Platform, either during or after the Term.
• 2.12 The Provider may suspend the provision of the Hosted Services if any amount due to be paid by the Customer to the Provider under the Agreement is overdue, and the Provider has given to the Customer at least [30 days'] written notice, following the amount becoming overdue, of its intention to suspend the Hosted Services on this basis.

• 3.1 The Provider shall provide the Maintenance Services to the Customer [during the Term].
• 3.2 The Provider shall where practicable give to the Customer [at least 10 Business Days'] prior written notice of scheduled Maintenance Services that are likely to affect the availability of the Hosted Services or are likely to have a material negative impact upon the Hosted Services, without prejudice to the Provider's other notice obligations under this main body of these Terms and Conditions.
• 3.3 The Provider shall give to the Customer [at least 10 Business Days'] prior written notice of the application of an Upgrade to the Platform.
• 3.4 The Provider shall give to the Customer written notice of the application of any security Update to the Platform and [at least 10 Business Days'] prior written notice of the application of any non-security Update to the Platform.
• 3.5 The Provider shall provide the Maintenance Services [with reasonable skill and care] OR [in accordance with the standards of skill and care reasonably expected from a leading service provider in the Provider's industry] OR [[specify standard(s)]].
• 3.6 The Provider may suspend the provision of the Maintenance Services if any amount due to be paid by the Customer to the Provider under the Agreement is overdue, and the Provider has given to the Customer at least [30 days'] written notice, following the amount becoming overdue, of its intention to suspend the Maintenance Services on this basis.

• 4.1 The Provider shall provide the Support Services to the Customer [during the Term].
• 4.2 The Provider shall make available to the Customer a helpdesk in accordance with the provisions of this main body of these Terms and Conditions.
• 4.3 The Provider shall provide the Support Services [with reasonable skill and care] OR [in accordance with the standards of skill and care reasonably expected from a leading service provider in the Provider's industry] OR [[specify standard(s)]].
• 4.4 The Customer may use the helpdesk [for the purposes of requesting and, where applicable, receiving the Support Services]; and the Customer must not use the helpdesk for any other purpose.
• 4.5 The Provider shall respond promptly to all requests for Support Services made by the Customer through the helpdesk
• 4.6 The Provider may suspend the provision of the Support Services if any amount due to be paid by the Customer to the Provider under the Agreement is overdue, and the Provider has given to the Customer at least [30 days'] written notice, following the amount becoming overdue, of its intention to suspend the Support Services on this basis.

• 5.1 The Customer hereby grants to the Provider a non-exclusive licence to [copy, reproduce, store, distribute, publish, export, adapt, edit and translate] the Customer Data to the extent reasonably required for the performance of the Provider's obligations and the exercise of the Provider's rights under the Agreement[. The Customer also grants to the Provider the right to sub-license these rights [to its hosting, connectivity and telecommunications service providers] to the extent reasonably required for the performance of the Provider's obligations and the exercise of the Provider's rights under the Agreement, subject always to any express restrictions elsewhere in the Agreement].
• 5.2 The Customer warrants to the Provider that [the Customer Data] OR [the Customer Data when used by the Provider in accordance with the Agreement] will not infringe the Intellectual Property Rights[ or other legal rights] of any person[, and will not breach [the provisions of any law, statute or regulation],] in [any jurisdiction and under any applicable law].
• 5.3 The Provider shall create a back-up copy of [the Customer Data] at least [daily], shall ensure that each such copy is sufficient to [enable the Provider to restore the Hosted Services to the state they were in at the time the back-up was taken], and shall [retain and securely store each such copy for a minimum period of 30 days].
• 5.4 [Within the period of 1 Business Day following receipt of a written request from the Customer], the Provider shall [use all reasonable endeavours to] restore to the Platform the Customer Data stored [in any back-up copy created and stored by the Provider in accordance with Clause 6.3]. The Customer acknowledges that this process will overwrite the Customer Data stored on the Platform prior to the restoration.

The parties acknowledge and agree that the use of the Mobile App, the parties' respective rights and obligations in relation to the Mobile App and any liabilities of either party arising out of the use of the Mobile App shall be subject to separate terms and conditions, and accordingly these Terms and Conditions shall not govern any such use, rights, obligations or liabilities.

Nothing in these Terms and Conditions shall operate to assign or transfer any Intellectual Property Rights from the Provider to the Customer, or from the Customer to the Provider.

• 8.1 The Customer shall pay the Charges to the Provider in accordance with these Terms and Conditions.
• 8.2 If the Charges are based in whole or part upon the time spent by the Provider performing the Services, the Provider must obtain the Customer's written consent before performing Services that result in any estimate of time-based Charges given to the Customer being exceeded or any budget for time-based Charges agreed by the parties being exceeded; and unless the Customer agrees otherwise in writing, the Customer shall not be liable to pay to the Provider any Charges in respect of Services performed in breach of this Clause 8.1.
• 8.3 All amounts stated in or in relation to these Terms and Conditions are, unless the context requires otherwise, stated [inclusive of any applicable value added taxes] OR [exclusive of any applicable value added taxes, which will be added to those amounts and payable by the Customer to the Provider].
• 8.4 The Provider may elect to vary [any element of the Charges] by giving to the Customer not less than [30 days'] written notice of the variation[ expiring [on any anniversary of the date of execution of the Agreement]][, providing that no such variation shall result in an aggregate percentage increase in the relevant element of the Charges during the Term that exceeds[[ 2]% over] the percentage increase, during the same period, in [the Retail Prices Index (all items) published by the UK Office for National Statistics]].

• 9.1 The Provider shall issue invoices for the Charges to the Customer [in advance of the period to which they relate] OR [from time to time during the Term] OR [on or after the invoicing dates set out in Section 3 of the Services Order Form].
• 9.2 The Customer must pay the Charges to the Provider within the period of [30 days] following [the issue of an invoice in accordance with this Clause 10] OR [the receipt of an invoice issued in accordance with this Clause 10][, providing that the Charges must in all cases be paid before the commencement of the period to which they relate].
• 9.3 The Customer must pay the Charges by [debit card, credit card, direct debit, bank transfer or cheque] (using such payment details as are notified by the Provider to the Customer from time to time).
• 9.4 If the Customer does not pay any amount properly due to the Provider under these Terms and Conditions, the Provider may:
  1. charge the Customer interest on the overdue amount at the rate of [8% per annum above the Bank of England base rate from time to time] (which interest will accrue daily until the date of actual payment and be compounded at the end of each calendar month); or
  2. claim interest and statutory compensation from the Customer pursuant to the Late Payment of Commercial Debts (Interest) Act 1998.

• 10.1 The Provider must:
  1. keep the Customer Confidential Information strictly confidential;
  2. not disclose the Customer Confidential Information to any person without the Customer's prior written consent[, and then only under conditions of confidentiality [approved in writing by the Customer] OR [no less onerous than those contained in these Terms and Conditions]];
  3. use the same degree of care to protect the confidentiality of the Customer Confidential Information as the Provider uses to protect the Provider's own confidential information of a similar nature, being at least a reasonable degree of care;
  4. [act in good faith at all times in relation to the Customer Confidential Information]; and
  5. [not use any of the Customer Confidential Information for any purpose other than [specify purposes]].
• 10.2 Notwithstanding Clause 11.1, the Provider may disclose the Customer Confidential Information to the Provider's [officers, employees, professional advisers, insurers, agents and subcontractors] [who have a need to access the Customer Confidential Information for the performance of their work with respect to the Agreement and ]who are bound by a written agreement or professional obligation to protect the confidentiality of the Customer Confidential Information.
• 10.3 This Clause 10 imposes no obligations upon the Provider with respect to Customer Confidential Information that:
  1. is known to the Provider before disclosure under these Terms and Conditions and is not subject to any other obligation of confidentiality;
  2. is or becomes publicly known through no act or default of the Provider; or
  3. [is obtained by the Provider from a third party in circumstances where the Provider has no reason to believe that there has been a breach of an obligation of confidentiality].
• 10.4 The restrictions in this Clause 11 do not apply to the extent that any Customer Confidential Information is required to be disclosed by any law or regulation, by any judicial or governmental order or request, or pursuant to disclosure requirements relating to the listing of the stock of the Provider on any recognised stock exchange.
• 10.5 The provisions of this Clause 11 shall continue in force [indefinitely following the termination of the Agreement] OR [for a period of [5 years] following the termination of the Agreement, at the end of which period they will cease to have effect].

• 11.1 Each party shall comply with the Data Protection Laws with respect to the processing of the Customer Personal Data.
• 11.2 The Customer warrants to the Provider that it has the legal right to disclose all Personal Data that it does in fact disclose to the Provider under or in connection with the Agreement.
• 11.3 The Customer shall only supply to the Provider, and the Provider shall only process, in each case under or in relation to the Agreement, the Personal Data of data subjects falling within the categories specified in Part 1 of Schedule 2 (Data processing information) and of the types specified in Part 2 of Schedule 2 (Data processing information); and the Provider shall only process the Customer Personal Data for the purposes specified in Part 3 of Schedule 2 (Data processing information).
• 11.4 The Provider shall only process the Customer Personal Data during the Term[ and for not more than [30 days] following the end of the Term], subject to the other provisions of this Clause 11.
• 11.5 The Provider shall only process the Customer Personal Data on the documented instructions of the Customer (including with regard to transfers of the Customer Personal Data to [any place outside the European Economic Area])[, as set out in [these Terms and Conditions or any other document agreed by the parties in writing]].
• 11.6 Notwithstanding any other provision of these Terms and Conditions, the Provider may process the Customer Personal Data if and to the extent that the Provider is required to do so by [applicable law]. In such a case, the Provider shall inform the Customer of the legal requirement before processing, unless that law prohibits such information[ on important grounds of public interest].
• 11.7 The Provider and the Customer shall each implement appropriate technical and organisational measures to ensure an appropriate level of security for the Customer Personal Data[, including those measures specified in Part 4 of Schedule 2 (Data processing information)].
• 11.8 The Provider must not engage any third party to process the Customer Personal Data without the prior specific or general written authorisation of the Customer.[ The Provider is hereby authorised by the Customer, as at the Effective Date, to engage those third parties identified in, or falling within the processor categories specified in, Part 5 of Schedule 2 (Data processing information) to process the Customer Personal Data.] In the case of a general written authorisation, the Provider shall inform the Customer at least [14 days] in advance of any intended changes concerning the addition or replacement of any third party processor, and if the Customer objects to any such changes before their implementation, then [the Provider must not implement the changes] OR [the Customer may terminate the Agreement on [7 days'] written notice to the Provider, providing that such notice must be given within the period of [7 days] following the date that the Provider informed the Customer of the intended changes] OR [specify consequences of objection]. The Provider shall ensure that each third party processor is subject to [the same] OR [equivalent] legal obligations as those imposed on the Provider by this Clause 12.
• 11.9 The Provider shall, insofar as possible and taking into account the nature of the processing, take appropriate technical and organisational measures to assist the Customer with the fulfilment of the Customer's obligation to respond to requests exercising a data subject's rights under the Data Protection Laws.
• 11.10 The Provider shall assist the Customer in ensuring compliance with [the obligations relating to the security of processing of personal data, the notification of personal data breaches to the supervisory authority, the communication of personal data breaches to the data subject, data protection impact assessments and prior consultation in relation to high-risk processing under the Data Protection Laws].
• 11.11 The Provider shall make available to the Customer all information necessary to demonstrate the compliance of the Provider with [its obligations under this Clause 12 and the Data Protection Laws].
• 11.12 The Provider shall, at the choice of the Customer, delete or return all of the Customer Personal Data to the Customer after the provision of services relating to the processing, and shall delete existing copies save to the extent that [applicable law] requires storage of the relevant Personal Data.
• 11.13 The Customer warrants to the Provider that it has the legal right to disclose all Personal Data that it does in fact disclose to the Provider under or in connection with the Agreement.
• 11.14 The Provider shall allow for and contribute to audits, including inspections, conducted by the Customer or another auditor mandated by the Customer[ in respect of [the compliance of the Provider's processing of Customer Personal Data with the Data Protection Laws and this Clause 12]].[ The Provider may charge the Customer [at its standard time-based charging rates] for any work performed by the Provider at the request of the Customer pursuant to this Clause 11.14.]
• 11.15 The Customer warrants to the Provider that it has the legal right to disclose all Personal Data that it does in fact disclose to the Provider under or in connection with the Agreement.

• 12.1 The Provider warrants to the Customer that:
  1. [the Provider has the legal right and authority to enter into the Agreement and to perform its obligations under these Terms and Conditions];
  2. [the Provider will comply with all applicable legal and regulatory requirements applying to the exercise of the Provider's rights and the fulfilment of the Provider's obligations under these Terms and Conditions]; and
  3. [the Provider has or has access to all necessary know-how, expertise and experience to perform its obligations under these Terms and Conditions].
• 12.2 The Provider warrants to the Customer that:
  1. [the Platform and Hosted Services will conform in all[ material] respects with the Hosted Services Specification];
  2. [the Hosted Services will be free from Hosted Services Defects];
  3. [the application of Updates and Upgrades to the Platform by the Provider will not introduce any Hosted Services Defects into the Hosted Services];
  4. [the Platform will be free from viruses, worms, Trojan horses, ransomware, spyware, adware and other malicious software programs]; and
  5. [the Platform will incorporate security features reflecting the requirements of good industry practice].
• 12.3 The Provider warrants to the Customer that the Hosted Services[, when used by the Customer in accordance with these Terms and Conditions,] will not breach [any laws, statutes or regulations applicable under English law].
• 12.4 The Provider warrants to the Customer that the Hosted Services, when used by the Customer in accordance with these Terms and Conditions, will not infringe the Intellectual Property Rights of any person [in any jurisdiction and under any applicable law].
• 12.5 If the Provider reasonably determines, or any third party alleges, that the use of the Hosted Services by the Customer in accordance with these Terms and Conditions infringes any person's Intellectual Property Rights, the Provider may at its own cost and expense:
  1. modify the Hosted Services in such a way that they no longer infringe the relevant Intellectual Property Rights; or
  2. procure for the Customer the right to use the Hosted Services in accordance with these Terms and Conditions.
• 12.6 The Customer warrants to the Provider that it has the legal right and authority to enter into the Agreement and to perform its obligations under these Terms and Conditions.
• 12.7 All of the parties' warranties and representations in respect of the subject matter of the Agreement are expressly set out in these Terms and Conditions. To the maximum extent permitted by applicable law, no other warranties or representations concerning the subject matter of the Agreement will be implied into the Agreement or any related contract.

• 13.1 The Customer acknowledges that complex software is never wholly free from defects, errors and bugs; and subject to the other provisions of these Terms and Conditions, the Provider gives no warranty or representation that the Hosted Services will be wholly free from defects, errors and bugs.
• 13.2 The Customer acknowledges that complex software is never entirely free from security vulnerabilities; and subject to the other provisions of these Terms and Conditions, the Provider gives no warranty or representation that the Hosted Services will be entirely secure.
• 13.3 The Customer acknowledges that the Hosted Services are designed to be compatible only with that software and those systems [specified as compatible in the Hosted Services Specification]; and the Provider does not warrant or represent that the Hosted Services will be compatible with any other software or systems.
• 13.4 The Customer acknowledges that the Provider will not provide any [legal, financial, accountancy or taxation advice] under these Terms and Conditions or in relation to the Hosted Services; and, except to the extent expressly provided otherwise in these Terms and Conditions, the Provider does not warrant or represent that the Hosted Services or the use of the Hosted Services by the Customer will not give rise to any legal liability on the part of the Customer or any other person.

• 14.1 Nothing in these Terms and Conditions will:
  1. limit or exclude any liability for death or personal injury resulting from negligence;
  2. limit or exclude any liability for fraud or fraudulent misrepresentation;
  3. limit any liabilities in any way that is not permitted under applicable law; or
  4. exclude any liabilities that may not be excluded under applicable law.
• 14.2 The limitations and exclusions of liability set out in this Clause 15 and elsewhere in these Terms and Conditions:
  1. are subject to Clause 14.1; and
  2. govern all liabilities arising under these Terms and Conditions or relating to the subject matter of these Terms and Conditions, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty, except to the extent expressly provided otherwise in these Terms and Conditions.
• 14.3 [Neither party shall be liable to the other party] OR [The Provider shall not be liable to the Customer] OR [The Customer shall not be liable to the Provider] in respect of any losses arising out of a Force Majeure Event.
• 14.4 [Neither party shall be liable to the other party] OR [The Provider shall not be liable to the Customer] OR [The Customer shall not be liable to the Provider] in respect of any loss of profits or anticipated savings.
• 14.5 [Neither party shall be liable to the other party] OR [The Provider shall not be liable to the Customer] OR [The Customer shall not be liable to the Provider] in respect of any loss of revenue or income.
• 14.6 [Neither party shall be liable to the other party] OR [The Provider shall not be liable to the Customer] OR [The Customer shall not be liable to the Provider] in respect of any loss of use or production.
• 14.7 [Neither party shall be liable to the other party] OR [The Provider shall not be liable to the Customer] OR [The Customer shall not be liable to the Provider] in respect of any special, indirect or consequential loss or damage.
• 14.8 The liability of [each party to the other party] OR [the Provider to the Customer] OR [the Customer to the Provider] under the Agreement in respect of any event or series of related events shall not exceed the greater of:
  1. [amount]; and
  2. [the total amount paid and payable by the Customer to the Provider under the Agreement in the 12 month period preceding the commencement of the event or events].
• 14.9 The aggregate liability of [each party to the other party] OR [the Provider to the Customer] OR [the Customer to the Provider] under the Agreement shall not exceed the greater of:
  1. [amount]; and
  2. [the total amount paid and payable by the Customer to the Provider under the Agreement].

• 15.1 If a Force Majeure Event gives rise to a failure or delay in either party performing any obligation under the Agreement[ (other than any obligation to make a payment)], that obligation will be suspended for the duration of the Force Majeure Event.
• 15.2 A party that becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay in that party performing any obligation under the Agreement, must:
  1. promptly notify the other; and
  2. inform the other of the period for which it is estimated that such failure or delay will continue.
• 15.3 A party whose performance of its obligations under the Agreement is affected by a Force Majeure Event must take reasonable steps to mitigate the effects of the Force Majeure Event.

• 16.1 Either party may terminate the Agreement by giving to the other party [at least 30 days'] written notice of termination.
• 16.2 Either party may terminate the Agreement immediately by giving written notice of termination to the other party if the other party commits a material breach of these Terms and Conditions.
• 16.3 Either party may terminate the Agreement immediately by giving written notice of termination to the other party if:
  1. the other party:
     1. is dissolved;
     2. ceases to conduct all (or substantially all) of its business;
     3. is or becomes unable to pay its debts as they fall due;
     4. is or becomes insolvent or is declared insolvent; or
     5. convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;
  2. an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party;
  3. an order is made for the winding up of the other party, or the other party passes a resolution for its winding up[ (other than for the purpose of a solvent company reorganisation where the resulting entity will assume all the obligations of the other party under this Licence)]; or
  4. [if that other party is an individual:
     1. that other party dies;
     2. as a result of illness or incapacity, that other party becomes incapable of managing his or her own affairs; or
     3. that other party is the subject of a bankruptcy petition or order.]

• 17.1 Upon the termination of the Agreement, all of the provisions of these Terms and Conditions shall cease to have effect, save that the following provisions of these Terms and Conditions shall survive and continue to have effect (in accordance with their express terms or otherwise indefinitely): [Clauses 1, 3.11, 7, 10.2, 10.4, 11, 12.1, 12.3, 12.4, 12.5, 12.6, 12.7, 12.8, 12.9, 12.10, 12.11, 12.12, 12.13, 12.14, 12.15, 15, 18, 21 and 22].
• 17.2 Except to the extent that these Terms and Conditions expressly provides otherwise, the termination of the Agreement shall not affect the accrued rights of either party.
• 17.3 Within [30 days] following the termination of the Agreement for any reason:
  1. the Customer must pay to the Provider any Charges in respect of Services provided to the Customer before the termination of the Agreement; and
  2. the Provider must refund to the Customer any Charges paid by the Customer to the Provider in respect of Services that were to be provided to the Customer after the termination of the Agreement,

  without prejudice to the parties' other legal rights.

• 18.1 Any notice from one party to the other party under these Terms and Conditions must be given by one of the following methods (using the relevant contact details set out in Section 4 of the Services Order Form and Clause 19.2):
  1. [[delivered personally or sent by courier], in which case the notice shall be deemed to be received [upon delivery]]; or
  2. [sent by [recorded signed-for post], in which case the notice shall be deemed to be received [2 Business Days following posting]],

  providing that, if the stated time of deemed receipt is not within Business Hours, then the time of deemed receipt shall be when Business Hours next begin after the stated time.

• 18.2 The Provider's contact details for notices under this Clause 19 are as follows: [contact details].
• 18.3 The addressee and contact details set out in Section 4 of the Services Order Form and Clause 19.2 may be updated from time to time by a party giving written notice of the update to the other party in accordance with this Clause 18.

• 19.1 The Provider must not subcontract any of its obligations under the Agreement without the prior written consent of the Customer[, providing that the Customer must not unreasonably withhold or delay the giving of such consent].
• or
• 19.2 Subject to any express restrictions elsewhere in these Terms and Conditions, the Provider may subcontract any of its obligations under the Agreement[, providing that the Provider must give to the Customer, promptly following the appointment of a subcontractor, a written notice specifying the subcontracted obligations and identifying the subcontractor in question].
• 19.3 The Provider shall remain responsible to the Customer for the performance of any subcontracted obligations.
• 19.4 Notwithstanding the provisions of this Clause 20 but subject to any other provision of these Terms and Conditions, the Customer acknowledges and agrees that the Provider may subcontract [to any reputable third party hosting business the hosting of the Platform and the provision of services in relation to the support and maintenance of elements of the Platform].

• 20.1 No breach of any provision of the Agreement shall be waived except with the express written consent of the party not in breach.
• 20.2 If any provision of the Agreement is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions of the Agreement will continue in effect. If any unlawful and/or unenforceable provision would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect (unless that would contradict the clear intention of the parties, in which case the entirety of the relevant provision will be deemed to be deleted).
• 20.3 The Agreement may not be varied except by a written document signed by or on behalf of each of the parties.
• 20.4 The Customer hereby agrees that the Provider may assign the Provider's contractual rights and obligations under the Agreement to [any successor to all or a substantial part of the business of the Provider from time to time] OR [any third party]. The Customer must not without the prior written consent of the Provider assign, transfer or otherwise deal with any of the Customer's contractual rights or obligations under the Agreement.
• 20.5 The Agreement is made for the benefit of the parties, and is not intended to benefit any third party or be enforceable by any third party. The rights of the parties to terminate, rescind, or agree any amendment, waiver, variation or settlement under or relating to the Agreement are not subject to the consent of any third party.
• 20.6 Subject to Clause 15.1, a Services Order Form, together with these Terms and Conditions and any Schedules, shall constitute the entire agreement between the parties in relation to the subject matter of that Services Order Form, and shall supersede all previous agreements, arrangements and understandings between the parties in respect of that subject matter.
• 20.7 The Agreement shall be governed by and construed in accordance with [English law].
• 20.8 The courts of [England] shall have exclusive jurisdiction to adjudicate any dispute arising under or in connection with the Agreement.

20.1 In these Terms and Conditions, a reference to a statute or statutory provision includes a reference to:

1. that statute or statutory provision as modified, consolidated and/or re-enacted from time to time; and
2. any subordinate legislation made under that statute or statutory provision.

20.2 The Clause headings do not affect the interpretation of these Terms and Conditions.

20.3 References in these Terms and Conditions to "calendar months" are to [the 12 named periods (January, February and so on) into which a year is divided].

20.4 In these Terms and Conditions, general words shall not be given a restrictive interpretation by reason of being preceded or followed by words indicating a particular class of acts, matters or things.

1.1 This acceptable use policy (the "Policy") sets out the rules governing:

1. the use of [the website at [URL], any successor website, and the services available on that website or any successor website] (the "Services"); and
2. the transmission, storage and processing of content by you, or by any person on your behalf, using the Services ("Content").

1.2 References in this Policy to "you" are to [any customer for the Services and any individual user of the Services] (and "your" should be construed accordingly); and references in this Policy to "us" are to [identify provider] (and "we" and "our" should be construed accordingly).

1.3 By using the Services, you agree to the rules set out in this Policy.

1.4 We will ask for your express agreement to the terms of this Policy before [you upload or submit any Content or otherwise use the Services].

1.5 You must be [at least 18 years of age] to use the Services; and by using the Services, you warrant and represent to us that you are [at least 18 years of age].

• 2.1 You must not use the Services in any way that causes, or may cause, damage to the Services or impairment of the availability or accessibility of the Services.
• 2.2 You must not use the Services:
  1. in any way that is unlawful, illegal, fraudulent or harmful; or
  2. in connection with any unlawful, illegal, fraudulent or harmful purpose or activity.
• 2.3 You must ensure that all Content complies with the provisions of this Policy.

• 3.1 Content must not be illegal or unlawful, must not infringe any person's legal rights, and must not be capable of giving rise to legal action against any person (in each case in any jurisdiction and under any applicable law).
• 3.2 Content[, and the use of Content by us in any manner licensed or otherwise authorised by you,] must not:
  1. [be libellous or maliciously false];
  2. [be obscene or indecent];
  3. [infringe any copyright, moral right, database right, trade mark right, design right, right in passing off, or other intellectual property right];
  4. [infringe any right of confidence, right of privacy or right under data protection legislation];
  5. [constitute negligent advice or contain any negligent statement];
  6. [constitute an incitement to commit a crime, instructions for the commission of a crime or the promotion of criminal activity];
  7. [be in contempt of any court, or in breach of any court order];
  8. [constitute a breach of racial or religious hatred or discrimination legislation];
  9. [be blasphemous];
  10. [constitute a breach of official secrets legislation]; or
  11. [constitute a breach of any contractual obligation owed to any person].
• 3.3 You must ensure that Content is not and has never been the subject of any threatened or actual legal proceedings or other similar complaint.

4.1 Content must be appropriate for all persons who have access to or are likely to access the Content in question[, and in particular for children[ over 12 years of age]].

4.2 Content must not depict violence[ in an explicit, graphic or gratuitous manner].

4.3 Content must not be pornographic[ or sexually explicit].

• 5.1 Content must not be untrue, false, inaccurate or misleading.
• 5.1 Statements of fact contained in Content and relating to persons (legal or natural) must be true[; and statements of opinion contained in Content and relating to persons (legal or natural) must be reasonable, be honestly held and indicate the basis of the opinion].

• 6.1 Content must not consist of or contain any [legal, financial, investment, taxation, accountancy, medical or other professional] advice, and you must not use the Services to provide any [legal, financial, investment, taxation, accountancy, medical or other professional] advisory services.
• 6.2 Content must not consist of or contain any advice, instructions or other information that may be acted upon and could, if acted upon, cause death, illness or personal injury, damage to property, or any other loss or damage.

• 7.1 Content must be appropriate, civil and tasteful, and accord with generally accepted standards of etiquette and behaviour on the internet.
• 7.2 Content must not be offensive, deceptive, threatening, abusive, harassing, menacing, hateful, discriminatory or inflammatory.
• 7.3 Content must not be liable to cause annoyance, inconvenience or needless anxiety.
• 7.4 You must not use the Services to send any hostile communication or any communication intended to insult, including such communications directed at a particular person or group of people.
• 7.5 You must not use the Services for the purpose of deliberately upsetting or offending others.
• 7.6 You must not unnecessarily flood the Services with material relating to a particular subject or subject area, whether alone or in conjunction with others.
• 7.7 You must ensure that Content does not duplicate other content available through the Services.
• 7.8 You must ensure that Content is appropriately categorised.
• 7.9 You should use appropriate and informative titles for all Content.
• 7.10 You must at all times be courteous and polite to other users of the Services.

• 8.1 You must not[ without our written permission] use the Services for any purpose relating to [the marketing, advertising, promotion, sale or supply of any product, service or commercial offering].
• 8.2 Content must not constitute or contain spam, and you must not use the Services to store or transmit spam - which for these purposes shall include [all unlawful marketing communications and unsolicited commercial communications].
• 8.3 You must not send any spam[ or other marketing communications] to any person using any email address[ or other contact details] made available through the Services or that you find using the Services.
• 8.4 You must not use the Services to promote or operate any chain letters, Ponzi schemes, pyramid schemes, matrix programs, "get rich quick" schemes or similar letters, schemes or programs.

• 9.1 You must not use the Services for any purpose relating to [gambling, gaming, betting, lotteries, sweepstakes, prize competitions or any gambling-related activity].

• 10.1 You acknowledge that [we may actively monitor the Content and the use of the Services] OR [we do not actively monitor the Content or the use of the Services].

• 11.1 You must not conduct any systematic or automated data scraping, data mining, data extraction or data harvesting, or other systematic or automated data collection activity, by means of or in relation to the Services.

• 12.1 You must not link to any material using or by means of the Services that would, if it were made available through the Services, breach the provisions of this Policy.

• 13.1 The Content must not contain or consist of, and you must not promote or distribute by means of the Services, any viruses, worms, spyware, adware or other harmful or malicious software, programs, routines, applications or technologies.
• 13.2 The Content must not contain or consist of, and you must not promote or distribute by means of the Services, any software, programs, routines, applications or technologies that will or may have a material negative effect upon the performance of a computer or introduce material security risks to a computer.

• 01. Categories of data subject

  [Specify the categories of data subject whose personal data may be processed]

• 02. Types of Personal Data

  [Specify types of personal data to be processed]

• 03. Purposes of processing

  [Specify purposes for which personal data may be processed]

• 04. Security measures for Personal Data

  [Specify the security measures used to protect personal data]

• 05. Sub-processors of Personal Data

  [Identify sub-processors of personal data]

• This is a short-form SaaS terms and conditions, with support and maintenance provisions.

• The document sets out the basis upon which a customer may use a hosted software system. Rights of usage are expressed both positively, stating what the customer is permitted do do, and negatively, with a list of limitations and prohibitions. Usage may optionally be governed by a distinct acceptable use policy (set out as a schedule to this document).

• The maintenance and support provisions in the T&Cs are comparatively short and simple: unlike in the standard and premium versions of this document, there are no SLAs setting out the details of how support and maintenance will be provided.

• Standard confidentiality are included. This document also includes provisions designed to help both parties to comply with the General Data Protection Regulation (GDPR), which is in force from 25 May 2018.

• The document has been designed for B2B (rather than B2C) SaaS arrangements.

Section 1: Customer details

1. Is the second party an individual, a company or a partnership?
2. What is the full name of the individual (including middle names)?
3. What is the postal address of the second party?
4. What is the full company name of the second party?
5. In which jurisdiction is the second party incorporated?
6. What is the registration number of the second party?
7. What is the registered office address of the second party?
8. What is the name of the second party partnership?
9. In which jurisdiction is the second party partnership established?
10. Where is the principal place of business of the second party?

Section 2: Specification of Hosted Services

1. Insert the specification for the hosted services.

Section 3: Financial provisions

1. Insert financial provisions.

Section 4: Contractual notices

Optional element.

1. Insert details to be used for sending contractual notices to the Customer.

Section: Execution of order form (individuals, companies or partnerships)

Subsection: Execution of contract by first party (individual, company or partnership)

1. Will the contract be signed by the (first party) contracting individual, or a person on behalf of the (first party) contracting entity?
2. What is the full name of the first party signatory?
3. On what date is the first party signing the contract?
4. Add the full name of the person who will sign the document on behalf of the first party.
5. On what date is the contract being signed on behalf of the first party?

Subsection: Execution of contract by second party (individual, company or partnership)

Subsection: Execution of contract by first party (individual, company or partnership)

1. Will the contract be signed by the (second party) contracting individual, or by a person on behalf of the (second party) contracting entity?
2. What is the full name of the second party signatory?
3. On what date is the second party signing the contract?
4. Add the full name of the person who will sign the document on behalf of the second party.
5. On what date is the contract being signed on behalf of the second party?

• Will services related to the hosted services always be governed by this document?
• How will the Provider ensure that the Customer agrees to the terms of this document?

Clause 1.1

Definition of Business Day

1. What different types of account may be used to access the hosted services platform?

Definition of Business Day

1. The bank and public holidays of which jurisdiction should be excluded from the definition of "Business Day"?

Definition of Business Hours

1. What are business hours for the purposes of this document?

Definition of Charges

1. What charges are payable under this document?
2. How should the time-based charging rates be described or specified?
3. Will all the services be subject to time-based charging, or only some of the services?
4. How are time-based charging units to be rounded?

Definition of Customer Confidential Information

1. Might confidential information be disclosed to the first party by someone other than the second party, on behalf of the second party?
2. Information disclosed during which of these periods is or might be treated as confidential for the purposes of this document?

Definition of Customer Data

1. What data, works and materials will be stored and processed by the Provider on behalf of the Customer?

Definition of Customer Personal Data

1. Specify those categories of data with respect to which the Provider is a data controller.

Definition of Documentation

1. How should the hosted services documentation be identified?

Definition of Effective Date

1. From what date will the contract be in force?

Definition of Force Majeure Event

1. Specify particular examples of force majeure events.

Definition of Hosted Services

1. Specify the name of the hosted services.
2. Will a detailed specification of the hosted services be provided?
3. Where will the detailed specification appear?

Definition of Hosted Services Defect

1. Will non-material defects count as software defects for the purposes of this definition?
2. Negative effects upon what aspects of the hosted services might constitute defects for these purposes?
3. Should a set of general exclusions from this definition be included?
4. What exclusions should apply here?

Definition of Hosted Services Specification

1. Where is the specification for the hosted services set out?

Definition of Mobile App

1. What is the mobile application known as?
2. How is the mobile application made available?

Definition of Platform

1. Do you wish to be more specific about the constituent elements of the hosted services platform?
2. Identify the elements of the hosted services platform.

Definition of Provider

1. Is the first party an individual, a company or a partnership?
2. What is the full name of the individual (including middle names)?
3. What is the postal address of the first party?
4. What is the full company name of the first party?
5. In which jurisdiction is the first party incorporated?
6. What is the registration number of the first party?
7. What is the registered office address of the first party?
8. What is the name of the first party partnership?
9. In which jurisdiction is the first party partnership established?
10. Where is the principal place of business of the first party?

Definition of Services

1. Define "Services".

Definition of Services Order Form

1. How should this term be defined?

Definition of Support Services

1. In relation to what exactly will support be provided?

Definition of Supported Web Browser

1. Which web browsers are formally supported?
2. Is there a chance that the Provider will extend support to other browsers?

Definition of Term

1. Define "Term", the period during which the contract will subsist.

Definition of Update

1. Define "Update".

Definition of Upgrade

1. Define "Upgrade".

Clause 3.1

1. How will the Provider get an account for the hosted services?
2. When will automatic account creation take place?
3. When will manual account creation take place?

Clause 3.2

1. What sort of licence to use the hosted services is being granted?
2. Must the hosted services be used by some particular means (eg a web browser)?
3. Is the Customer only permitted to use the hosted services for some defined purpose, or may the hosted services be used for any purpose?
4. Must the hosted services be used in accordance with the documentation?
5. What means?
6. What purposes?

Clause 3.3

Optional element.

1. Which of these licensing limitations apply?
2. Which classes of person are eligible to use the hosted services?
3. Where will named users be specified?
4. What procedure will be used to change, add or remove a named user?
5. Where are named user details stored?
6. Where will concurrent user limits be specified?
7. What procedure will be used to add or remove a concurrent user licence?

Clause 3.4

1. What prohibitions apply to the use of the hosted services?
2. Will alterations be permitted in accordance with the documentation?

Clause 3.5

Optional element.

1. Are these obligations restricted to administrator accounts?

Clause 3.6

Optional element.

1. Will the Provider be required to use "all reasonable endeavours" to maintain availability, or merely "reasonable endeavours"?At what point are the hosted services considered to be made available?

Clause 3.7

Optional element.

Clause 3.8

Optional element.

1. Is this obligation limited to administrator accounts?

Clause 3.9

Optional element.

1. How much notice must the Provider give to the Customer of a suspension of services following non-payment?

Clause 4.1

1. During what period will the maintenance services be provided?

Clause 4.2

1. How much prior written notice of the release of an update must be given to the Customer?

Clause 4.3

Optional element. Will the Provider have an obligation to give to the Customer prior written notice of the application of an upgrade?

1. How much prior written notice of the release of an upgrade must be given to the Customer?

Clause 4.4

Optional element. Will the Provider have an obligation to give to the Customer prior written notice of the application of an upgrade?

1. How much prior written notice of the release of an upgrade must be given to the Customer?

Clause 4.5

Optional element.

1. What standard(s) must the maintenance services meet?
2. Specify the standard or standards the services must meet.

Clause 4.6

Optional element. Will the Provider have a right to suspend the maintenance services in the event that the Customer fails to pay any amount due under the contract?

1. How much notice of an intention to suspend the maintenance services must the Provider give to the Customer?

Clause 5.1

1. During what period will the support services be provided?

Clause 5.2

Optional element.

Clause 5.3

Optional element.

1. What standard(s) must the support services meet?
2. Specify the standard or standards the support services must meet.

Clause 5.4

Optional element.

1. For what purposes may the helpdesk be used?

Clause 5.5

Optional element.

Clause 5.6

Optional element.

1. How much notice must the Provider give to the Customer of a suspension of services following non-payment?

Clause 5.1

1. During what period will the support services be provided?

Clause 5.2

Optional element.

Clause 5.3

Optional element.

1. What standard(s) must the support services meet?
2. Specify the standard or standards the support services must meet.

Clause 5.4

Optional element.

1. For what purposes may the helpdesk be used?

Clause 5.5

Optional element.

Clause 5.6

Optional element.

1. How much notice must the Provider give to the Customer of a suspension of services following non-payment?

Optional element.

Optional element.

Clause 9.1

Optional element.

Clause 9.2

Optional element.

1. Are payment amounts stated inclusive or exclusive of VAT?

Clause 9.3

Optional element. Will the Provider be permitted to vary the charges, or any element of the charges, in any circumstances?

1. Which elements of the charges may be varied?
2. What notice period should apply to the variation of charges?
3. Must notice of the variation expire upon some specific date?
4. Should variations of charges be limited by reference to an index?
5. Specify the relevant date.
6. Will the charges variation cap exceed RPI by a defined percentage?
7. Identify the index in question.
8. Specify the relevant percentage.

Clause 10.1

Optional element.

1. When should invoices be issued?

Clause 10.2

1. What is the period for payment of invoices?
2. When does the period for payment of an invoice begin to run?
3. What if any proviso is required to the standard payment terms?

Clause 10.3

Optional element.

1. Using what methods should payments be made?

Clause 10.4

Optional element.

1. What contractual interest rate should apply to late payments?

Optional element.

Clause 11.1

1. In the event of a disclosure of confidential information made by the first party with the prior written consent of the second party, should the first party be bound to place confidentiality obligations upon the recipient of the information?
2. Will the second party have to give its written approval to the specific conditions under which confidential information is disclosed by the first party to a third party, or is it sufficient that such disclosures are made under conditions of confidentiality no less onerous than those set out in this document?
3. Should the Provider be required to act in good faith in relation to confidential information?
4. Should the first party be placed under an obligation to only use the information disclosed for a defined purpose?

Clause 11.2

1. To whom may the first party disclose confidential information supplied by the second party?
2. Should disclosures made under this provision be prohibited unless there is a "need to know"?

Clause 11.3

1. Should the first party be free to disclose all information received from third parties in circumstances where the first party has no reason to believe that there has been a breach of a confidentiality obligation?

Clause 11.4

1. Will the confidentiality obligations in this section continue indefinitely, or will they come to an end at some point following termination of the contract?
2. For what period following termination will the confidentiality obligations continue?

Will the Provider process personal data on behalf of the Customer?

This provision is designed to help the parties to a data processing arrangement to comply with the General Data Protection Regulation (GDPR), in force from 25 May 2018.

In addition to a set of specific requirements, the GDPR includes a general obligation on data controllers to ensure compliance:

"Where processing is to be carried out on behalf of a controller, the controller shall use only processors providing sufficient guarantees to implement appropriate technical and organisational measures in such a manner that processing will meet the requirements of this Regulation and ensure the protection of the rights of the data subject." (Article 28(1))

One aspect of ensuring compliance is the use of an appropriate written contract:

"Processing by a processor shall be governed by a contract or other legal act under Union or Member State law, that is binding on the processor with regard to the controller and that sets out the subject-matter and duration of the processing, the nature and purpose of the processing, the type of personal data and categories of data subjects and the obligations and rights of the controller." (Article 28(3))

The drafting in these provisions closely reflects the language of the GDPR.

Clause 12.1

Optional element.

Clause 12.2

Optional element.

Clause 12.3

Article 28(2)(a) of the GDPR provides that the controller-processor contract must stipulate that the controller "processes the personal data only on documented instructions from the controller, including with regard to transfers of personal data to a third country or an international organisation ... ".

Clause 12.4

Article 28(2)(a) of the GDPR provides that the controller-processor contract must stipulate an exception to the general rule that personal data may only be processed on the data controller's instructions: " ... unless required to do so by Union or Member State law to which the processor is subject; in such a case, the processor shall inform the controller of that legal requirement before processing, unless that law prohibits such information on important grounds of public interest".

Note the distinction between "Union or Member State law" in the GDPR and "applicable law" in the draft provision. There is a possibility of conflict between legal obligations here. Similarly, if applicable law prohibits the notification to the controller of legally-mandated processing, then in principle that might not be on "important grounds of public interest".

Clause 12.5

Article 28(3)(b) of the GDPR provides that the controller-processor contract must stipulate that the processor "ensures that persons authorised to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality".

Clause 12.6

Article 28(3)(c) of the GDPR provides that the controller-processor contract must stipulate that the processor "takes all measures required pursuant to Article 32".Article 32 provides that:

Article 32 provides that:

1. Taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, the controller and the processor shall implement appropriate technical and organisational measures to ensure a level of security appropriate to the risk, including inter alia as appropriate: (a) the pseudonymisation and encryption of personal data; (b) the ability to ensure the ongoing confidentiality, integrity, availability and resilience of processing systems and services; (c) the ability to restore the availability and access to personal data in a timely manner in the event of a physical or technical incident; (d) a process for regularly testing, assessing and evaluating the effectiveness of technical and organisational measures for ensuring the security of the processing.
2. In assessing the appropriate level of security account shall be taken in particular of the risks that are presented by processing, in particular from accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to personal data transmitted, stored or otherwise processed.
3. Adherence to an approved code of conduct as referred to in Article 40 or an approved certification mechanism as referred to in Article 42 may be used as an element by which to demonstrate compliance with the requirements set out in paragraph 1 of this Article.
4. The controller and processor shall take steps to ensure that any natural person acting under the authority of the controller or the processor who has access to personal data does not process them except on instructions from the controller, unless he or she is required to do so by Union or Member State law."

Clause 12.7

Article 28(2) of the GDPR provides that: "The processor shall not engage another processor without prior specific or general written authorisation of the controller. In the case of general written authorisation, the processor shall inform the controller of any intended changes concerning the addition or replacement of other processors, thereby giving the controller the opportunity to object to such changes".

Article 28(4) provides that: "Where a processor engages another processor for carrying out specific processing activities on behalf of the controller, the same data protection obligations as set out in the contract or other legal act between the controller and the processor as referred to in paragraph 3 shall be imposed on that other processor by way of a contract or other legal act under Union or Member State law, in particular providing sufficient guarantees to implement appropriate technical and organisational measures in such a manner that the processing will meet the requirements of this Regulation. Where that other processor fails to fulfil its data protection obligations, the initial processor shall remain fully liable to the controller for the performance of that other processor's obligations."

Article 28(3)(d) provides that the controller-processor contract should stipulate that the processor "respects the conditions referred to in paragraphs 2 and 4 for engaging another processor".

Clause 12.8

Article 28(3)(e) of the GDPR provides that controller-processor contracts must stipulate that the processor "taking into account the nature of the processing, assists the controller by appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of the controller's obligation to respond to requests for exercising the data subject's rights laid down in Chapter III".

Clause 12.9

Article 28(3)(f) of the GDPR provides that the controller-processor contract must stipulate that the processor "assists the controller in ensuring compliance with the obligations pursuant to Articles 32 to 36 taking into account the nature of processing and the information available to the processor".

Clause 12.10

Article 28(3)(h): the contract must require that the data processor "makes available to the controller all information necessary to demonstrate compliance with the obligations laid down in this Article...". The draft clause here is wider, covering compliance with any data protection legislation.