General terms and conditions
These Services Terms and Conditions (the “Terms“) and the order form signed by BrightMinded Ltd (“BrightMinded”) and you as “Client” referencing these Terms (the “Order Form”), together (the “Agreement“) govern the Client’s access to and use of Services ordered by Client in the relevant Order Form. By entering into an Order Form with BrightMinded Limited the Client agrees to be bound by all of the terms and conditions of the Agreement.
1. Interpreting these Terms
1.1. Unless otherwise defined in the Agreement, capitalised terms set out in the Agreement have the meanings given in clause 26 of these Terms.
Getting started
2. How to order
2.1 The Client must enter into an Order Form(s) to purchase the Services. Each Order Form sets out the details of the Services to be provided by BrightMinded.
2.2 The Client may enter into more than one Order Form and each Order form will form a separate agreement between the Client and BrightMinded.
3. Scope of Services
3.1 The Client’s access to and use of the Services is limited to the Scope specified in the relevant Order Form.
4. Duration of Services
4.1 The Services will commence on the Services Start Date stated in the relevant Order Form and will, unless otherwise stated in the relevant Order Form, continue for the Initial Subscription Term. Thereafter, the Services will automatically renew for successive periods of 12 months (or such other period as stated in the applicable Order Form) (each a “Renewal Period“), unless either party terminates with not less than 30 days written notice prior to the end of the Initial Subscription Term or relevant Renewal Period or otherwise terminates in accordance with the provisions of the Agreement. The Client’s access and use of the Services will terminate on termination of the Agreement.
5. Fees
5.1 The Client will pay BrightMinded the Fees as stated in the Order Form in accordance with this clause 5. In consideration for the Fees BrightMinded will provide the Services to the Client in accordance with the Scope and Agreement during the Subscription Term.
5.2 In the event the Client’s use of the Services exceeds the Scope, Client shall pay the Overage Fees in respect of such excess use in accordance with clause 6.1.
5.3 BrightMinded will be entitled to increase the Fees with effect from the start of each Renewal Period upon 60 days’ prior notice to the Client and the Agreement will be deemed to have been amended accordingly.
6. Invoicing and Payment
6.1 Unless otherwise agreed in the relevant Order Form, BrightMinded will invoice Client for:
- The Set Up Services Fees in full on the relevant Order Date;
- The Subscription Fees for the Subscription Services subscription annually in advance on or after the relevant Order Date and thereafter on the anniversary of the Order Date for the duration of the Subscription Term, unless otherwise agreed in the relevant Order Form.
- Any increased or additional Subscription Fees payable for the Client’s use of the Subscription Services in excess of the Scope will be invoiced from on or after the date such use is exceeded (unless otherwise agreed in the relevant Order Form);
- The Support Fees in full on the relevant Order Date;
- Any reasonable expenses incurred by BrightMinded in connection with the Set Up Services, which will be invoiced separately and in addition to the Set Up Services Fees; and
- Any Overage Fees monthly in arrears.
6.2 Unless otherwise specified in the relevant Order Form, all Fees and any approved expenses will be paid by Client in full and without deduction within 14 days of the date of the relevant invoice.
6.3 If BrightMinded has not received payment for any invoices (which are not the subject of a bona fide dispute) by the due dates and without prejudice to any other rights and remedies it may have, BrightMinded may by giving 30 days prior written notice to Client, without liability to Client, disable Client’s password, account and access to all or part of the Services.
6.4 All amounts and Fees stated or referred to in the Agreement are non-refundable and are exclusive of all Taxes. The Client will be solely responsible for paying all applicable Taxes relating to the Agreement and the use or access to the Services.
Our Services
7. Subscription Services
Subject to payment of the applicable Fees and the terms of the Agreement, BrightMinded grants to Client a non-exclusive, non-transferable right during the Subscription Term to access and use the Subscription Services in accordance with the Scope and solely for Client’s internal business operations.
8. Set Up Services
8.1 Where Client has purchased Set Up Services, BrightMinded will provide the Set Up Services stated in the relevant Order Form.
8.2 In the event that any unmet Dependencies result in a need for BrightMinded to spend additional time to deliver the Services, BrightMinded will not be required to perform additional work caused by unmet Dependencies or requested Scope increases unless the parties have agreed in writing to changes to the estimated days and/or additional fees. Any work required to be performed by BrightMinded (i) outside the scope of, or in addition to, the Set Up Services; or (ii) outside normal Business Hours or not on a Business Day may be subject to further fees or charges (as determined by BrightMinded at its sole discretion).
8.3 Any reasonable expenses incurred by BrightMinded in connection with the Set Up Services will be invoiced and payable in addition to the Set Up Services Fees.
9. Support Services
Subject to Client paying the Fees, BrightMinded will provide Client with Support Services during Business Hours for the Subscription Services for the relevant Subscription Term in accordance with the relevant Order Form and Services Specification.
10. Trial
10.1 BrightMinded may offer Trials of the Subscription Service(s). Trials are for the Client’s internal evaluation during the period designated on the Order Form (or if not designated, 30 days) only. Either party may terminate the Client’s use of any Trial at any time for any reason.
10.2 Notwithstanding anything else in this Agreement, in respect of Trials, BrightMinded offers no warranty, indemnity, SLA or Support Services and its liability to Client in respect of any claims resulting from use of all Trials will not exceed the amount paid or payable by Client in respect of such Trial.
11. Our Service Warranties and disclaimers
11.1 BrightMinded warrants that:
a) the Subscription Services will be supplied during the Subscription Term substantially in accordance with the Services Specification and with reasonable skill and care and in accordance with good industry practices; and
b) where applicable, the Set Up Services and Support Service will be performed with reasonable skill and care and in accordance with good industry practices.
11.2 The warranties provided in clause 11.1 will not apply if any non-conformance is caused by or results from: (i) Client’s use of the Services contrary to BrightMinded’s written instructions or the Service Specifications; (ii) Client’s breach of the terms of the Agreement; (iii) any modification or alteration of the Services by any party other than BrightMinded or its duly authorised contractors or agents; or (iv) any failure by the Client to meet any Dependencies.
11.3 If the Services do not conform with the warranty provided in clause 11.1(a) during the Subscription Term, BrightMinded will, at its expense, use commercially reasonable efforts to correct any such non-conformance promptly, or provide the Client with substitute services. If, after using commercially reasonable efforts, BrightMinded cannot provide such correction or substitution for the Subscription Services, BrightMinded or Client may terminate the Agreement in respect of such Subscription Services and BrightMinded shall refund the Fees payable for the affected Subscription Services for the remaining period of the Subscription Term after the date of termination. Such correction, substitution or refund is Client’s sole and exclusive remedy, and BrightMinded’s sole and exclusive liability for any breach of the warranty.
11.4 Notwithstanding the foregoing, BrightMinded:
- does not warrant that the Services and/or the information obtained by Client through the Services will meet the Client’s requirements; or that the Client’s use of the Services will be uninterrupted or error-free;
- is not responsible for any delays, delivery failures, or any other loss or damage resulting from third party applications or the transfer of data over communications networks and facilities, including the Internet, and Client acknowledges that the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities;
- is not responsible for any Virus which was not detected by BrightMinded using reasonable current commercial methods of detection or transmitted through any third party services;
- nor its suppliers or third-party service providers or software vendors, will have any liability whatsoever for the accuracy, completeness, or timeliness of the Client Content, or for any decision made or action taken by Client, any Authorised User, or any third party in reliance upon any Client Content.
11.5 Except as expressly provided for in this clause, BrightMinded (and its suppliers) to the extent permitted by law, disclaims all other warranties, express, implied or statutory, including warranties, terms and conditions of merchantability, accuracy, correspondence with description, fitness for a particular purpose or use and satisfactory quality, and non-infringement.
11.6 Client understands that the BrightMinded Platform is currently built to interact with third party services including but not limited to OpenAI Global, LLC and certain payment providers (“Third Party Services”). Where Client elects to interact with OpenAI, it hereby agrees to comply with Business terms | OpenAI, and that its usage of such is subject to such terms. Likewise, when Client chooses to interact with its contracted payment provider via the BrightMinded Platform, Client acknowledges that its contract with payment provider shall govern any such access via the BrightMinded Platform and warrants that such payment provider’s contract permits access to such service via the BrightMinded Platform. Accordingly, Client hereby indemnifies BrightMinded upon demand from and against any claims, losses and expenses arising from Client’s use of Third Party Services via the BrightMinded Platform, violation of any law and breach of any terms and conditions applicable to Third Party Services.
12. Our SLA
BrightMinded will use commercially reasonable endeavours to make the Subscription Services available 24 hours a day, 7 days a week, excepting periods of (i) scheduled downtime for installation of updates, maintenance and, on occasions, fault correction and (ii) emergency downtime. BrightMinded will take all reasonable endeavours to minimise such downtime, and when scheduled downtime is required will: schedule such downtime outside of the support hours where possible, give Client as much notice as is reasonably possible of the downtime, and keep Client informed of the situation.
13. Changing Scope of Services
If Client wishes to change the Scope of the Services, it will submit details of the requested change to BrightMinded in writing (which may be by email). The change will not take effect until the parties have agreed in writing such change by way of Order Form amendment.
General Client Obligations
14. Authorised Users
14.1 Client undertakes that:
- the maximum number of Authorised Users that it grants access to the Services will not exceed the number of Authorised Users set out in the Order Form;
- it will not allow more than one individual Authorised User per Authorised User unless that Authorised User has been reassigned in its entirety to another individual Authorised User, in which case the prior Authorised User will no longer have any right to access or use the Services.
14.2 Client will:
- use all reasonable endeavours to prevent any unauthorised access to, or use of the Services and, in the event of any such unauthorised access or use, promptly notify BrightMinded;
- procure that it and its Authorised Users (i) keep all account log in and passwords as confidential and not disclose to third parties, and such passwords will be changed frequently, (ii) use the Services in accordance with the terms and conditions of the Agreement; (ii) comply with all applicable laws and regulations with respect to its activities under the Agreement; and (iv) only use the Services for lawful purposes.
14.3 Client will be liable for any Authorised User’s breach of the Agreement.
15. Cooperation
Client will:
- provide all necessary co-operation and information as may be reasonably required by BrightMinded in order to provide the Services. In the event of any delays in Client’s provision of such assistance, BrightMinded may adjust any agreed timetable or delivery schedule as reasonably necessary;
- permit BrightMinded to audit Client’s use of the Services in order to establish compliance with the Agreement. Without prejudice to BrightMinded’s other rights, if any audit reveals that any Services are being used in a manner that is not permitted by the Agreement, BrightMinded may take action that is appropriate and proportionate to the misuse including disabling access to the Services and / or invoicing Client for additional, unauthorised use beyond the Scope of Services;
- be solely responsible for procuring and maintaining its network connections and telecommunications links and for all problems, conditions, delays and delivery failures arising from or relating to the Client’s network connections or telecommunications links;
- be responsible for obtaining all necessary licenses and consents required to use the Client Content (if any, and including without limitation those from the owners or licensees of any third party information) and as part of the Services and Client warrants and represents that licenses and consents have been obtained;
- comply with all applicable laws and regulations, including, without limitation, technology control or export laws and regulations that apply to the technology used or supported by the Services; and
- fulfil all Dependencies (if any).
16. Prohibitions
16.1 Client will not during the course of its use of the Services, upload, input, access, store, distribute or transmit (i) any Viruses, or (ii) any material or data including without limitation Client Content that contains or is Inappropriate Content or breaches any Intellectual Property Rights or any other rights of any other party.
16.2 Client is expressly prohibited from reselling any of the Services and/or any other of BrightMinded’s services or products without BrightMinded’s express written consent.
16.3 Except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties, Client will not:
- make alterations to, or modifications of, the whole or any part of the Services, or permit the Services or any part of them to be combined with, or become incorporated in, any other programs unless expressly agreed by BrightMinded in writing;
- disassemble, decompile, reverse-engineer or otherwise reduce to human-perceivable form or create derivative works based on the whole or any part of the Services or attempt to do any such thing;
- provide or otherwise make available the Service, in any form to any third party, unless such provision is a normal feature of the Services;
- use the Services for any illegal or unethical purposes or in any manner which may infringe or violate any third parties’ rights;
- access all or any part of the Services in order to build a product or service which competes with the Services;
- license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services available to any third party;
- not use the Services in a manner that could damage, disable, overburden, impair or compromise such Services or the security thereof.
17. Disabling Access
BrightMinded reserves the right, without liability to Client or prejudice to its other rights, to: (i) disable Client’s or its user’s access to any material that breaches the provisions of clauses 14 to 16; and (ii) remove any such content where, in BrightMinded’s sole and reasonable discretion, BrightMinded suspects such content to be Inappropriate Content.
Termination
18. Early Termination
18.1 Without prejudice to any other rights or remedies to which the parties may be entitled, either party may terminate the Agreement without liability to the other at any time with immediate effect upon written notice if the other party:
- is in material breach of any of its obligations under the Agreement and, in the case of a breach which is capable of remedy, fails to remedy such breach within 30 days following notice of the breach; or
- voluntarily files a petition under bankruptcy or insolvency law; has a receiver or administrative receiver appointed over it or any of its assets becomes subject to an administration order or enters into any voluntary arrangement with its creditors or ceases or threatens to cease to carry on business; or is subject to any analogous event or proceeding in any applicable jurisdiction.
18.2 BrightMinded may further terminate the Agreement (or part thereof) where the provision of the Services or part thereof becomes unlawful.
19. Obligations on Termination
19.1 On termination of the Agreement, for any reason:
- Client’s rights of use granted under the Agreement will immediately terminate and Client will immediately cease the use of the Services, as applicable;
- Client will promptly pay Fees or other monies due or to become due under the Agreement, as applicable, including the remainder of the Fees due to BrightMinded for the remaining period of the then current Subscription Term after the date of termination where BrightMinded has terminated for cause; and
- Client will make no further use of the terminated Services and each party shall return and make no further use of any equipment, property, software and any other items (and all copies of them) belonging to the other party, subject to BrightMinded retaining a back-up of Client Content in its possession for up to 30 Business Days after the date of termination in accordance with clause 19.2 below.
19.2 BrightMinded may destroy or otherwise dispose of any of Client Content in its possession unless BrightMinded receives, no later than 30 Business Days after the effective date of the termination of the Agreement, a written request for the delivery to Client of the then most recent back-up of the Client Content. BrightMinded will deliver the back-up to Client following its receipt of such a written request. Unless otherwise agreed by the parties in writing, the Client will pay all reasonable expenses incurred by BrightMinded in returning or disposing of Client Content.
Intellectual Property, Data and Confidentiality Obligations
20. Marketing
Client agrees that BrightMinded may publish Client’s name and logo in its client lists, and promotional, marketing and investment materials, in any media. Any use of Client’s name and logo shall be in accordance with the applicable brand guidelines as notified by Client from time to time. Client will co-operate with BrightMinded in producing any press releases or case studies regarding the supply of the Services to Client.
21. Data protection
21.1 Both parties will comply with all applicable requirements of Applicable Data Protection Law. This clause 21 is in addition to, and does not relieve, remove or replace, a party’s obligations under Applicable Data Protection Law.
21.2 The Client warrants to BrightMinded that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to BrightMinded for the duration and purposes of the Agreement.
21.3 The parties agree to comply with the Data Processing Addendum in the Schedule to these Terms.
22. Confidentiality
22.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under the Agreement. A party’s Confidential Information does not include information that:
- is or becomes publicly known other than through any act or omission of the receiving party;
- was in the other party’s lawful possession before the disclosure;
- is lawfully disclosed to the receiving party by a third party without restriction on disclosure;
- is independently developed by the receiving party, which independent development can be shown by written evidence; or
- is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.
22.2 Each party will: (i) hold the other’s Confidential Information in confidence and, unless required by law, not make the other’s Confidential Information available to any third party, or use the other’s Confidential Information for any purpose other than the implementation of the Agreement; and (ii) take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of the Agreement. Neither party will be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party other than a service provider appointed by that party.
22.3 On termination of the Agreement or when requested to do so in writing by the disclosing party, the receiving party will promptly:
- deliver to the disclosing party any documents and other materials in its possession or control that contain any of the Confidential Information;
- permanently delete, destroy and erase all electronic copies of the Confidential Information from any computer or data storage system into which the Confidential Information was entered; and
- make no further use of the Confidential Information.
22.4 The receiving party, if requested by the disclosing party, will confirm in writing that the provisions of clause 22.3 of these Terms have been complied with. The obligations of confidentiality under this clause 22 will survive any expiration or termination of the Agreement for a period of 3 years.
23. BrightMinded’s IP and Data
23.1 Client acknowledges and agrees that BrightMinded and its licensors and suppliers own all Intellectual Property Rights in the Services, and all underlying software, data and materials used to provide such Services, and any updates thereto. Except as expressly stated herein, the Agreement does not grant Client any Intellectual Property Rights or any other rights or licenses in respect of (but not limited to) the Services or the Service Specifications.
23.2 Nothing in the Agreement shall operate so as to transfer ownership of the Client Content to BrightMinded. Client hereby grants BrightMinded a licence to use the Client Content in order to provide the Services, including the right to make copies of and to host and distribute the Client Content, together with the right to allow third party service providers to do the same.
23.3 Any usage data generated by Client’s use of the Services will be owned by BrightMinded (provided any personal data is removed).
23.4 The Agreement will not prevent BrightMinded from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under the Agreement or from using information and know how obtained through the provision of the Services in the furtherance of BrightMinded’s business interests or improvement of the Services.
Limitation of Liability
24. Limitation of Liability
24.1 The exclusions in this clause 24 will apply to the fullest extent permissible at law but neither party excludes or limits its liability for:
- death or personal injury caused by its negligence or that of its officers, employees, contractors or agents;
- fraud or fraudulent misrepresentation;
- any other liability which cannot be excluded by applicable law; or
- Client’s (i) infringement or misuse of BrightMinded’s (or any licensors) Intellectual Property Rights or the Services or (ii) violation of any third party’s rights.
24.2 Subject to clause 24.1 above, and except with respect to Fees owed by Client to BrightMinded, the aggregate liability of each party for or in respect of any loss or damage suffered by the other party (whether due to breach of contract, tort (including negligence) or otherwise) under or in connection with the Agreement in any claim year will be limited to the total amount of Fees paid by Client under the relevant Order Form during such the year the claim arose.
24.3 Subject to clause 24.1, to the maximum extent permitted by applicable law, in no event will either party be liable to the other for special, consequential, incidental or other indirect damages, or for loss of profits, anticipated savings, business opportunity, goodwill, or loss of revenue, loss of use or loss of data (including corruption of data), or costs of procurement of substitute goods or services arising of the agreement, howsoever caused and under any theory of liability (including contract, tort, negligence or otherwise) even if the other party has been advised of the possibility of such damages.
24.4 In addition to the other exclusions set out in these terms, BrightMinded has no liability:
- for any Third Party Services;
- where any failure to provide the Services is caused by a network, hardware or software fault in equipment which is not under the control of BrightMinded; or
- for any act or omission of Client or any modification of the Services by anyone other than BrightMinded (or its authorised sub-contractors).
24.5 Client assumes sole responsibility for results obtained from the use of the Services by Client, and for conclusions drawn from such use. BrightMinded will have no liability for any damage caused by errors or omissions in any information or instructions provided to BrightMinded by Client in connection with the Services or any actions taken by BrightMinded at Client’s direction.
25. General
Order of terms
25.1 In the event of any inconsistencies or conflict between the Terms and the Order Form, the terms of these Terms will prevail, except where the parties agree in the Order that any such terms of the Order Form will prevail over the terms of these Terms.
Entire Agreement
25.2 The Agreement sets out the entire agreement and understanding between the parties and supersedes any previous agreement between the parties relating to its subject matter. Unless otherwise expressly agreed in writing the Agreement applies in place of and prevails over any terms or conditions contained in or referred to in any correspondence or elsewhere or implied by trade custom or course of dealing. Any general terms of business or other terms and conditions of any order or other document issued by Client in connection with the Agreement will not be binding on BrightMinded. In entering into the Agreement each party acknowledges and agrees that it has not relied on any representations made by the other except as set forth in the Agreement. Any such representations are excluded.
Variations
25.3 Save as otherwise expressly stated in the Agreement, the Order Form may only be modified or varied in writing executed by duly authorised representatives of both parties, save that these Terms may be updated by BrightMinded by giving Client 30 days’ written notice prior to such changes taking effect. Client may terminate the Agreement by serving written notice on BrightMinded within the 30 days following such notification, otherwise Client shall be deemed to have accepted the amended Terms and have waived its right to terminate under this clause.
Survival
25.4 In addition to those provisions which by their nature are intended to survive any termination of the Agreement, clauses 19 (Obligations on Termination), 22 (Confidentiality), 23 (BrightMinded’s IP and Data), 24 (Limitations of Liability), 25 (General), 26 (Definitions) of the Agreement will survive such termination or expiration of the Agreement.
Waiver
25.5 A waiver of any right under the Agreement is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and to the circumstances for which it is given. Unless specifically provided otherwise, rights arising under the Agreement are cumulative and do not exclude rights provided by law.
Invalid Provisions
25.6 If any provision (or part of a provision) of the Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions will remain in force. If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision will apply with whatever modification is necessary to give effect to the commercial intention of the parties.
Third Party Rights
25.7 A person who is not a party to the Agreement has no rights to enforce, or to enjoy the benefit of, any term of the Agreement, but this does not affect any right or remedy of a third party which exists or is available by applicable law or that is expressly provided for under the Agreement.
Force Majeure
25.8 BrightMinded will have no liability to Client under the Agreement if it is prevented from or delayed in performing its obligations under the Agreement due to a Force Majeure Event. BrightMinded will provide Client with notice of a Force Majeure Event and its expected duration.
Anti-Bribery
25.9 Each party will comply with all applicable laws, statues and regulations relating to anti-bribery and anti-corruption.
Notices
25.10 All notices to be given under the Agreement will be given in English in writing to the address stated at the beginning of the Agreement, or to such other address as will be given by either party to the other in writing. Any notice sent by Client involving non-performance and/or termination must be sent by email to [email protected]. All such notices will be deemed to have been given and received on the earlier of actual receipt or 3 days from the date of postmark. All other notices may be provided by email to the contact email address provided by each party upon entering into the Agreement and such email will be deemed delivered 1 day from the date of the email (unless a bounceback is received).
No Employee or Agent
25.11 The parties to the Agreement are independent contractors. Client bears all risk and cost of operating its own business, including risk of loss. Nothing in the Agreement is intended to, or will be deemed to, constitute a partnership or joint venture, agency or employment relationship between the parties.
Subcontracting & Assignment
25.12 Save as otherwise expressly stated in the Agreement, neither BrightMinded nor Client may assign or otherwise transfer the Agreement or any of its rights or obligations or purport to do any such acts under it to any third party without prior written consent from the other party, such consent not to be unreasonably withheld. Notwithstanding anything to the contrary, BrightMinded will have the right, upon written notice to Client, to assign the Agreement to an entity resulting from a merger, acquisition or other business reorganisation of BrightMinded. In addition, BrightMinded will have the right to sub-contract any of its obligations hereunder to a third party, provided that BrightMinded will continue to remain responsible for the performance of the Service hereunder. Any attempted assignment, sub-contracting or other transfer in violation of this provision will be null and void.
Counterparts
25.13 The Agreement may be executed and delivered in any number of counterparts, each of which is an original and which, together, have the same effect as if each party had signed the same document.
Dispute Resolution
25.14 If a dispute arises out of or in connection with the Agreement, then the parties will use reasonable endeavours to resolve such dispute before submitting any claims to the courts.
Governing Law & Jurisdiction
25.15 The Agreement and any disputes or claims arising out of or in connection with it, its subject matter or formation (including non-contractual disputes or claims) will for all purposes be solely and exclusively governed, construed and enforced in accordance with the laws of England. Both parties submit to the exclusive jurisdiction of the courts of England.
26. Definitions
Affiliate: an entity that is directly or indirectly controlled by, or is under common control with Client. For purposes of the foregoing, “control” means the ownership of (i) greater than fifty per cent (50%) of the voting power to elect directors of the entity, or (ii) greater than fifty per cent (50%) of the ownership interest in the entity.
Applicable Data Protection Law: All applicable statutory and regulatory requirements regarding privacy and the protection of “personal data” or “personally identifiable information” (as defined by such laws) and as amended from time to time, including without limitation, Regulation (EU) 2016/679 of the European Parliament and any applicable acts and regulations which bring it into force. The terms “data controller”, “data processor” “personal data”, “process”, “processing” shall have the meaning set out in the Applicable Data Protection Laws and “subprocessor” means any third party appointed by or on behalf of Client to process Client’s personal data in connection with the Agreement;
Authorised Users: anyone, including employees, agents, members, clients and independent contractors of the Client and its Affiliates, who is authorised by the Client to use the Services, as further described in clause 14 and are in accordance with the number and type of users permitted to use the Service as detailed in the relevant Order Form (if applicable);
BrightMinded Platform: the subscription to the proprietary BrightMinded service as further described in the Order Form;
Business Day: any day which is not a Saturday, Sunday or statutory public holiday in England;
Business Hours: 09:00 to 17:30 GMT/BST each Business Day;
Confidential Information: information of a party that is proprietary or confidential and is either clearly labelled as confidential, identified as Confidential Information in clause 23, or a reasonable person would understand to be confidential or proprietary at the time of disclosure;
Client Content: the content, data, materials and/or information (i) provided by Client to BrightMinded and/or inputted by Client, Authorised Users, or BrightMinded on Client’s behalf for the purpose of using the Services or facilitating Client’s use of the Services, (ii) collected and processed by or for the Client through Client’s use of the Services, and/or (iii) shared by the Client where the Client makes use of a feature of the Services that allows Client or its Authorised Users to import, upload, link to, present, share, embed or otherwise make available to third parties through Client’s or its Authorised Users use of the Services;
Dependencies: those dependencies (if any) to be delivered or fulfilled by the Client as stated on the Order Form;
Fees: the Subscription Fees, Set Up Services Fees (as applicable), Overage Fees (as applicable), Support Fees (as applicable), any additional fees payable for exceeding the Scope, and any other fees payable under the Agreement as set out in the Order Form;
Force Majeure Event: acts, events, omissions or accidents beyond a party’s reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes, failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, fire, flood or storm or government intervention;
Initial Subscription Term: the initial term of the subscription to the Services, as set out in the Order Form and commencing on the Order Date (unless otherwise specified in the Order Form);
Inappropriate Content: content which (a) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive; (b) facilitates illegal activity; (c) depicts sexually explicit images; (d) promotes unlawful violence; (e) is discriminatory; or (f) causes damage or injury to any person or property; or (g) contains any sensitive personal data or cardholder or banking data;
Intellectual Property Rights: including without limitation, rights in patents, trademarks, service marks, trade names, other trade-identifying symbols and inventions, copyrights, design rights, database rights, rights in know-how, trade secrets and any other intellectual property rights arising anywhere in the world, whether registered or unregistered, and including applications for the grant of any such rights;
Order Date: the effective date of the relevant Order Form as set out in such Order Form;
Overage Fees: the fees payable by Client calculated in accordance with the pricing as set out in the relevant Order (or as otherwise notified by BrightMinded to Client in writing) for Client’s use of the BrightMinded Platform in excess of the Usage Limits;
Renewal Period: has the meaning set out in clause 4 above;
Scope: the limits (in addition to those contained in these Terms) within which Client and its Authorised Users can use the Services purchased by Client as stated in the relevant Order Form.
Services: the Subscription Service(s) and, where applicable, the purchased Set Up Service(s) and Support Service(s) further described in the relevant Order Form;
Services Specifications: BrightMinded then current standard specifications for the Services as set out in the Order Form (which may be updated from time to time);
Set Up Service(s): certain set up services provided by BrightMinded and purchased by the Client as set out in the Order Form;
Set Up Services Fees: the fees payable by Client for the Set Up Services ordered as specified in an Order;
Subscription Fees: the subscription fees payable by Client to BrightMinded for Client’s and its Authorised Users’ subscription to and use of the Subscription Services, as set out in the Order Form;
Subscription Service(s): the access to and use of the BrightMinded Platform in accordance with the Agreement and as further stated in the Order Form;
Subscription Term: the Initial Subscription Term and any subsequent Renewal Periods;
Support Fees: those fees payable by the Client for Support Services (where applicable) which are in addition to the relevant Subscription Fees for its subscription to the Services, as further detailed in the relevant Order Form;
Support Service(s): the BrightMinded support services provided by BrightMinded in accordance with the support terms set out in the relevant Order Form and any other support services policy as notified by BrightMinded to Client in writing from time to time, during the applicable Subscription Term;
Taxes: any applicable taxes, including without limitation, withholding, sales, use, excise, value added tax and similar taxes but not taxes based on BrightMinded’s gross income;
Trials: access to any of the BrightMinded Platform on a trial basis as set out in the Order Form.
Usage Limits: the limits of use in respect of the BrightMinded Platform as set out in the applicable Order Form;
Virus: any thing or device (including any software, code, file or programme) which may prevent, impair or otherwise adversely affect the access to or operation, reliability or user experience of any computer software, hardware or network, telecommunications service, equipment or network or any other service or device, including worms, trojan horses, viruses and other similar things or devices.
Data Processing Addendum
Data Processing Details
1. Data Subjects
Employees of Client and Client’s Authorised Users
2. Type of Personal Data
(i) Names, addresses, phones, email and (ii) data which Client requests or allows its Authorised Users to submit (by way of example only professional certifications, licences, special access data, diversity and inclusion data)
3. Period of processing
The Subscription Term and for the reasonable period after the termination or expiration of the Subscription Term to return or delete the data (as applicable).
4. Scope of processing
For the provision of the Services provided under the Agreement.
Data Processing Agreement
Scope
1. When this agreement applies
1.1 This Data Processing Agreement contains the clauses required by Article 28(3) of the retained EU law version of the General Data Protection Regulation ((EU) 2016/679) (UK GDPR) for contracts between controllers and processors and applies to you if:
- you have engaged BrightMinded Limited to act as your service provider by accepting our Terms and Agreement; and
- the Services we provide to you require us to act as your data processor in relation to any personal data you provide to us (Client Data).
Your role as the Data Controller
1.2 It is agreed that:
- you are the Data Controller and we are the Data Processor (as defined in the Applicable Data Protection Law);
- you retain control of the personal data and remain responsible for your obligations under the Applicable Data Protection Law, including but not limited to providing any required notices and obtaining any required consents, and for the written processing instructions you give to us;
- this document sets out the subject matter, duration, nature and purpose of the processing and the categories of personal data and data subjects.
Our Obligations To You
2. Acting under your instructions
2.1 We will:
- comply with all relevant Applicable Data Protection Law when processing any personal data on your behalf;
- only process Client Data as required to perform our Services;
- comply with your documented instructions in relation to the processing, including with regard to international transfers.
Confidentiality
2.2 We will maintain the confidentiality of Client Data and will ensure that the persons authorised to process Client Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
Responding to data subject requests
2.3 Taking into account the nature of processing, we will assist you, through appropriate technical and organisational measures, to respond to requests from a data subject when exercising their rights under any Applicable Data Protection Law, including subject access rights, the rights to rectify or erase personal data.
2.4 We will promptly notify you if we receive any request or any complaint about the processing of the Client Data. We will not respond to any request or complaint except on your documented instructions or as required by law.
Assisting impact assessments and regulatory consultations
2.5 We will provide assistance to you with any data protection impact assessments and prior consultations with data privacy authorities which you consider to be required under Applicable Data Protection Law, in each case solely in relation to our processing of Client Data, taking into account the nature and scope of such Client Data.
Information and audit requests
2.6 If you request assistance in ensuring your compliance with your Applicable Data Protection Law obligations, we will make available all information reasonably necessary to demonstrate compliance with this Data Processing Agreement to you, including allowing for and contributing to audits / inspections by you or your mandated auditor.
Notification of any Client Data breach
2.7 If a Client Data breach occurs, we will notify you without undue delay, once we become aware of such a breach and assist you in the notification of such breach to the data privacy authority and the data subject.
Staff controls
2.8 We will ensure (via contractual obligations and internal policies) that our staff are authorised to process Client Data and will protect its confidentiality in accordance with our obligations under the Contract.
Security controls
2.9 We confirm we have appropriate technical and organizational measures in place to ensure a level of security appropriate to the risk presented by our processing, nature of Client Data processed, scope and context of our processing, existing technologies available and cost of implementing any such measures.
Sub-processing
2.10 You agree that we may engage third parties to process Client Data (Sub-Processors). A list of our Sub-Processors is available on request. In all cases:
- each Sub-Processor is subject to contractual terms that are required between controllers and processors by Applicable Data Protection Law;
- we will remain liable for any breach of the Agreement that is caused by an act, error or omission of any of our Sub-Processors; and
- the sub-processing will end when our arrangement to act as your processor ends.
International transfers of Client Data
2.11 We agree not to transfer Client Data outside the UK or EEA unless we have your consent to the transfer and have complied with our obligations under Applicable Data Protection Law in ensuring adequate safeguards for such transfers.
Deletion / Return of Client Data
2.12 At your request, we will delete or return all Client Data at the end of the provision of the relevant Services unless applicable law requires us to retain such data.
Governance Terms
Order of Precedence
3.1 This Data Processing Agreement is subject to the terms of the Agreement and is incorporated into the Agreement.
Interpretation
3.2 Interpretations and defined terms in the Agreement apply to the interpretation of this Data Processing Agreement.