Prosple Partner General Terms
Prosple has developed a unique website platform for job board and careers advice functionality. The Partner wishes to receive, and Prosple wishes to provide, a white-labelled version of the Prosple website platform and related materials and services (the Platform) which incorporate Partner Style Elements for use on the Partner’s website, subject to the Partner’s payment of Fees to Prosple.
These Partner General Terms (consisting of the General Terms and Conditions and these Partner General Terms) (Terms) are between Prosple Pty Ltd (ABN 43 168 218 782) (Prosple) and the Partner and set out the terms and conditions that govern any use of or access to the Platform by the Partner.
By registering to use the Platform, the representative of the Partner registering on the Prosple website warrants that they have the power and due authority to enter into these Terms on behalf of the Partner who agrees to be bound by, and deliver and perform obligations under these Terms.
The ongoing use by any Personnel of the Partner of the Platform binds the Partner to these Terms. If the Partner does not agree to these Terms it must not (and is not permitted to) access or use the Platform, or any other materials or services made available to it in conjunction with the Platform, and the Partner must immediately cease accessing and using the Platform or related materials or services and must ensure that none of its Personnel access or use the Platform.
1 Term and Access to Platform
(a) These Terms commence on the date the Partner first uses or is provided with access to the Platform and shall continue until terminated in accordance with these Terms (Term).
(b) Access to the Platform will be provided when the monthly Fees is paid and payment terms may be provided in an invoice which is subject to, these Terms.
2 Provision of the Platform and Restrictions on Use
(a) Subject to the provisions of these Terms, Prosple grants the Partner a non-exclusive, limited, non-transferable, non-sublicensable, licence for the Term to display the Platform on their domain, website or any other platform managed by the Partner.
(b) The Partner must not, and must not permit any third party to, without Prosple’s prior written approval:
(i) modify, adapt or amend the Platform;
(ii) disassemble, decompile, or reverse engineer all or any parts of the computer programs, source code or object code which comprise the Platform (or attempt to do so); or
(iii) sub-licence, rent, sell, lease, distribute or otherwise transfer the Platform or any part of it except as permitted under these Terms.
(c) Prosple is responsible for maintaining control over and access rights to the Platform, and for uploading and updating any Content on the Platform. Unless otherwise agreed in writing, Prosple will not be required to include or modify any Content on the Platform, or the Platform itself.
(d) Nothing in these Terms limits Prosple’s right to licence the Platform to third parties (without the Partner Style Elements).
3 Upgrades and Enhancements
(a) From time to time Prosple may introduce adaptations, upgrades or enhancements to the Platform, or make changes to the tools and features of any part of the Platform including the availability of such tools and features or features dependent upon other services or software.
(b) Where such adaptations, upgrades or enhancements are applicable to the Platform, Prosple shall make them available to the Partner subject to the payment of the applicable Fees (if any), notified to the Partner at that time, provided that if the Partner does not wish to accept an upgrade or enhancement which would involve the payment of additional Fees, it may, within ninety (90) days of receiving notice of such upgrade or enhancement, terminate these Terms and the Partner’s use of the Platform on written notice to Prosple.
(c) Any adaptations, upgrades or enhancements to the Platform, and any new features or tools that are added to it will be owned by, and will vest in Prosple upon creation.
4 Additional Services
(a) Prosple will provide support and hosting services in connection with the Platform in accordance with the provisions of these Terms and subject to the Fees (if any) set out in any invoice.
(b) The Partner may, from time to time, request that Prosple carry out customisation services or other services in connection with the Platform. Prosple may accept or reject such requests in its sole discretion. The scope, terms of and fees for, such services must be agreed in writing between the parties.
5 Intellectual Property
(a) The Partner acknowledges that Prosple owns or licences all intellectual property rights in any Content and the Platform, and that these Terms do not transfer ownership of any intellectual property rights of Prosple or any third party.
(b) The Partner must notify Prosple immediately if it becomes aware of any:
(i) unauthorised access to or use of the Platform or any Content; or
(ii) other infringement of Prosple’s intellectual property rights.
(c) Prosple acknowledges that the Partner owns or licenses all intellectual property rights in Partner Style Elements, and that these Terms do not transfer ownership of any intellectual property rights of the Partner or any third party.
(d) The Partner grants to Prosple a royalty-free, non-exclusive licence for the Term to use and display Partner Style Elements on the Platform and any portal or webpages in connection with the Platform.
(e) Prosple acknowledges that the Partner owns or licenses all intellectual property rights in Partner Contributed Content, and that this Agreement does not transfer ownership of any intellectual property rights of Partner or any third party.
(f) The Partner grants to Prosple a royalty-free, non-exclusive licence for the Term to use, display and modify Partner Contributed Content on the Platform and any portal or webpages in connection with the Platform.
6 Fees and Payments
(a) The Partner must pay Prosple the Fees (if any), in accordance with any invoice
(b) Prosple may revise the Fees at any time on 90 days’ written notice to the Partner, provided that if such revision would result in the Partner paying additional Fees, the Partner may, on written notice to Prosple terminate these Terms with effect from the end of such 90 day notice period at which time Prosple can cancel or suspend the Partner’s account and the Partner must cease using the Prosple Platform.
(a) If GST is payable on a supply made under or in connection with these Terms, the party providing the consideration for that supply must pay as additional consideration an amount equal to the amount of GST payable on that supply. Any amount of GST is payable at the same time as the payment for the taxable supply to which it relates.
(b) Unless otherwise stated, all amounts referred to in these Terms are stated on a GST exclusive basis.
(c) If an adjustment event occurs in relation to a supply made under or in connection with these Terms, the GST payable on that supply will be recalculated to reflect that adjustment and an appropriate payment will be made between the parties.
(d) If GST is applicable, a party, in providing an invoice under these Terms shall provide a proper tax Invoice.
(e) Terms which have a defined meaning in the GST Law shall have that meaning in these Terms.
8 Confidential Information
(a) The Partner acknowledges that information relating to or embodied in the Platform is confidential to Prosple and that any disclosure thereof would cause damage to Prosple. Subject to clause 8(b) each party must not use or disclose the Confidential Information of the other party.
(b) Each party:
(i) may use Confidential Information of the other party solely for the purposes of exercising its rights and performing its obligations under these Terms;
(ii) except as permitted under subclause (iii), must keep, and take all reasonable steps to ensure its Personnel keep, confidential all Confidential Information of the other party; and
(iii) may only disclose the other party’s Confidential Information:
(A) to its Personnel to the extent they have a need to know such Confidential Information and provided they are bound by obligations of confidentiality;
(B) to its professional advisors who have entered into a confidentiality agreement including provisions substantially similar to this clause 8; or
(C) as required by Law, a court order, stock exchange regulations or professional and industry standards organisations.
(c) The restrictions outlined in clause 8(b) do not apply to information which:
(i) becomes public knowledge during the Term; or
(ii) a party becomes aware of from a third person,
in each case, provided there has been no breach of any obligation of confidence by the party wishing to use or disclose the information or, to that party’s knowledge, any third party.
(d) Prosple shall take reasonable steps to ensure the reliability of any Personnel who may have access to Personal Information, ensuring in each case that access is strictly limited to those individuals who need to know or access the Personal Information, as strictly necessary, and to comply with applicable privacy Laws in the context of that individual’s duties in relation to these Terms, ensuring that all such individuals are subject to confidentiality undertakings or professional or statutory obligations of confidentiality.
(a) During and after the Term, the Partner must comply with the Privacy Act and any Privacy Law by which the Partner is bound and must:
(i) take all reasonable steps to ensure that Personal Information is protected against misuse, loss and unauthorised use, access or disclosure (including to unauthorised third parties);
(ii) not do anything which may cause Prosple to breach any Privacy Law and provide all reasonably requested assistance for Prosple to comply with Privacy Law; and
(iii) if requested by Prosple, co-operate with Prosple to resolve any actual or suspected data breach, or complaint or investigation under any Privacy Law.
(b) The Partner acknowledges that the Platform, any other services under these Terms, and any third party users accessing the Platform may be from overseas locations or provided using contractors located overseas. The Partner agrees to provide all information and notifications and obtain all necessary consents or agreements relevant to and necessary for its use of the Platform.
(c) If Prosple detects a security breach that affects or compromises the service provided to the Partner, Prosple shall without undue delay and, where feasible, not later than 72 hours after having become aware of it, notify the Partner of the security breach. Where the notification to the Partner is not made within 72 hours, it shall be accompanied by reasons for the delay.
(d) Prosple shall co-operate with the Partner and take reasonable commercial steps as are directed by the Partner to assist in the investigation, mitigation and remediation of a breach of security leading to the accidental or unlawful destruction, loss, alteration, or unauthorised disclosure of or access to Personal Information.
(e) The GDPR applies to protection of the data provided by a data subject in the European Union. Where a Partner is collecting information from a data subject in the European Union, Annexure 1 will apply to any data transfer between the Partner and Prosple. To the extent of any inconsistency between the terms in Annexure 1 and the remainder of these Terms, the terms in Annexure 1 take precedence to the extent that they apply to the rights of a data subject and the remainder of these Terms take precedence in any other circumstances.
Each Party warrants that it:
(a) has the authority to enter into and perform it obligations under these Terms and that these Terms are a legal, valid and binding agreement; and
(b) will comply at all times with applicable Laws.
(a) The Partner acknowledges that Content on the Platform may incorporate open source software or other third party content, and that while Prosple will use commercially reasonable endeavours to ensure that Content is accurate, complete and reliable, Prosple is not responsible for the accuracy, quality, integrity or reliability of any Content.
(b) To the extent permitted by Law (including the Australian Consumer Law if applicable), Prosple does not give any representation or warranty as to the reliability, accuracy or completeness of any Content or the Platform, including open source software, and Prosple will have no responsibility or liability to the Partner or any other person arising from or in connection with any error, defect or inaccuracy in any Content or the Platform.
To the extent permitted by Law (including the Australian Consumer Law if applicable):
(a) the Platform, Content and any other products or services provided by Prosple under these Terms are provided “as is” without warranty or guarantee; and
(b) Prosple for itself and on behalf of each of its third party suppliers expressly disclaims any and all warranties, guarantees and representations of any kind, including as to:
(i) the quality, accuracy, reliability, completeness or timeliness of the Platform, Content or any services provided by Prosple, non-infringement, or fitness for a particular purpose;
(ii) continuity of supply, or use free from interruption, errors, viruses or harmful components;
(iii) errors or defects being corrected; and
(iv) use or operation in combination with any other hardware, software or system.
The Partner shall indemnify and hold harmless Prosple, its affiliates and their Personnel (the Prosple Indemnified Parties) from and against any Loss arising out of or in connection with:
(a) any breach of or inaccuracy in a warranty given pursuant to these Terms that a person registering on the Prosple Platform, purportedly for and on behalf of the Partner, has power to bind the Partner;
(b) any breach by the Partner of clauses 2, 5, 8, 9, 10 or any provision of Annexure 1; and
(c) a claim that the Partner Style Elements or any Partner Contributed Content infringe any third party intellectual property rights or are otherwise defamatory or in breach of any law.
14 Limitation of Liability
(a) To the extent permitted by Law, (including the Australian Consumer Law if applicable):
(i) subject to clause 14(b), each Party’s aggregate liability for any Loss arising under these Terms is limited to the greater of:
(A) $20,000; and
(B) Fees paid or payable by the Partner in the 12 months prior to the event giving rise to the Loss.
The limitation of liability under this clause 14(a)(i) is cumulative and not per incident or claim;
(ii) Prosple will not be liable for any Consequential Loss;
(iii) Prosple will not be liable to the Partner or any third party for any Loss resulting from:
(A) termination of these Terms for any reason;
(B) any changes made, or updates, to the Platform;
(C) the transmission of viruses;
(D) The Partner’s use of, or inability to use, or reliance on the Platform or Content, including where the Platform or Content is inaccurate, incomplete or not up-to-date; or
(E) any delays, interruptions, service failures and other problems inherent in use of the internet and electronic communications or other systems outside the reasonable control of Prosple.
(iv) if the consumer guarantees under the Australian Consumer Law apply, to the extent that the goods or services provided under these Terms are goods or services other than goods or services of a kind ordinarily acquired for personal, domestic or household use or consumption, Prosple’s liability for failure to comply with a consumer guarantee is limited to (at Prosple’s election):
(A) for goods: the replacement of the goods or the supply of equivalent goods, the repair of the goods, the payment of the cost of replacing the goods or of acquiring equivalent goods, or the payment of the cost of having the goods repaired; or
(B) for services: the supplying of the services again, or the payment of the cost of having the services supplied again.
(b) Clauses 14(a)(i) and 14(a)(ii) do not apply to, and shall not limit, any party’s liability for death or personal injury caused by that party or its Personnel or for fraud.
(c) Each party shall perform its obligations under this Agreement at its own cost.
(a) Either party may terminate these Terms on ninety (90) days’ written notice to the other party and at the end of those 90 days the Partner must cease using the Prosple Platform.
(b) The Partner may terminate these Terms in accordance with clauses 3(b) and 6(b).
(c) Prosple may immediately terminate these Terms or suspend access to the Platform on written notice to the Partner if:
(i) The Partner breaches clause 2, 5, 8, 9, 10 or any provision of Annexure 1;
(ii) The Partner breaches any other provision of these Terms and does not rectify such breach within 20 days after written notice of such breach;
(iii) The Partner undergoes a change in control of more than half the issued voting shares in the Partner, and Prosple considers that such a change in control will be detrimental to Prosple’s interests; or
(iv) the liability of the Partner for Loss arising under these Terms exceeds the limit under clause 14(a)(i).
(d) On expiration or termination of these Terms for any reason the rights granted to the Partner in respect of the Platform terminate and:
(i) Prosple will cease providing, and the Partner must (and must ensure its Personnel) immediately stop using, the Platform and any other Content or services; and
(ii) each party must, at the other party’s election, return or destroy all copies of the other party’s Confidential Information in its possession or control.
(e) Termination or expiry of these Terms shall not relieve the parties of any accrued rights or liability (including with respect to outstanding or accrued Fees). Rights and obligations which are intended or by their nature survive termination will still continue to have effect, including clauses 5, 8, 9, 10, 12, 13, 14, 15(d), 16, 18 and this clause 15(e).
The Partner grants Prosple a royalty-free, non-exclusive licence to use and display the Partner’s logo and other Partner Style Elements on Prosple’s website or other marketing materials to promote the Platform.
(a) A party giving notice under these Terms must do so in English, in writing and addressed and delivered to Prosple at [email protected] or to the Partner at the email address provided when registering the Partner’s account), as may be updated from time to time by written notice.
(b) A notice given under this clause is taken to be received:
(i) if hand delivered, on delivery;
(ii) if sent by prepaid post, 3 days after the date of posting;
(iii) if sent by email, at the time of sending the email.
(a) The Partner must not sublicense or assign these Terms or its rights arising out of these Terms without Prosple’s prior written consent.
(b) To the extent Prosple is precluded from performing under these Terms by any event or circumstance beyond its control, Prosple shall be excused from performance (and associated liability) for the duration of such event or circumstance.
(c) Nothing in these Terms gives a party any right to bind the other party in contract or otherwise at law, or hold itself out as a representative, partner, agent or employee of the other party.
(d) These Terms contain the entire agreement between the parties with respect to its subject matter. The Partner acknowledges and agrees that these Terms will prevail over and supplant any separate terms provided by the Partner.
(e) A failure or delay in exercising any right or remedy under these Terms does not operate as a waiver. A single or partial exercise of a waiver does not preclude any other further exercise of that right, power or remedy. A waiver is not valid or binding unless made in writing.
(f) Any provision of these Terms that is prohibited or unenforceable in any jurisdiction is ineffective as to that jurisdiction to the extent of the prohibition or unenforceability. That does not invalidate the remaining provisions of these Terms nor affect the validity or enforceability of that provision in any other jurisdiction.
(g) These Terms are governed by the Laws of New South Wales, Australia. Each party irrevocably submits to the exclusive jurisdiction of courts with jurisdiction there, and waives any right to object to the jurisdiction on any ground.
(h) A clause, party, schedule, attachment, exhibit or annexure is a clause of or a party, schedule, attachment, exhibit or annexure to these Terms.
19 Definitions and Interpretation
The following definitions apply unless the context requires otherwise:
Australian Consumer Law means Schedule 2 of the Competition and Consumer Act 2010 (Cth).
Confidential Information of a party means all confidential or proprietary information relating to that party, its suppliers or customers, or an affiliate from time to time, of which the other party becomes aware, before or after the date of these Terms, which is either marked as confidential or which a reasonable person would understand to be confidential. Prosple’s Confidential Information includes the design, specification and content of the Platform including its source code and object code.
Consequential Loss means any loss not arising naturally (that is according to the usual course of things) from the relevant breach, which may include loss of profits, loss of income or revenue, loss of data, loss of or damage to reputation or goodwill, and loss of business opportunities.
Content means any and all data or other material input, entered onto or added to the Platform.
Fees means all amounts payable by the Partner to Prosple for provision of the Platform in accordance with these Terms, as set out in an invoice.
GDPR means European Union General Data Protection Regulation 2016/679.
GST means any goods and services tax imposed by the GST Law or any other value added tax, sales tax or consumer tax payable.
GST Law means the A New Tax System (Goods and Services Tax) Act 1999, and any associated legislation and regulations to the extent they relate to GST.
Laws means all applicable laws including rules of common law, principles of equity, statutes, regulations, orders, rules, subordinate legislation or other document enforceable under any statute, regulation, rule or subordinate legislation applicable to the Platform or the parties’ rights and obligations under these Terms in force from time to time.
Loss means any claim, loss, liability, cost or expense (including legal expenses on a full indemnity basis).
Partner means the party identified in the relevant registration, who may also manage access of third-party users to the Platform or to whom Prosple makes available a white-labelled version of the Platform.
Partner Contributed Content means any articles, videos, images or other content which has been developed by the Partner independently of Prosple and loaded onto the Platform.
Partner Style Elements means the navigational elements, trade names, trademarks, and/or other visual representations, including logos, designs, symbols and images, or other indicia of ownership owned or used by the Partner.
Personal Information means information or an opinion (including information or an opinion forming part of a database), whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion, which is accessed or made available to a party as a consequence of, or otherwise in connection with, these Terms.
Personnel means in respect of a person any director, officer, employee, contractor, servant, agent, or other person under the person’s direct or indirect control and includes any sub-contractors.
Privacy Act means the Privacy Act 1988 (Cth).
Privacy Law means all legislation, principles, industry codes and policies, which relate to the collection, use, disclosure, storage or handling of Personal Information, and includes the Privacy Act.
Processor has the meaning given to it in the GDPR.
Term has the meaning given in clause 1(a).
Headings are for convenience only and do not affect interpretation. The following rules apply unless the context requires otherwise.
(a) the singular includes the plural and conversely;
(b) a reference to a clause is to a clause of these Terms;
(c) a reference to a party to these Terms or any other agreement or document includes the party’s successors and permitted assigns;
(d) a reference to any agreement or document (including to these Terms) is to that agreement or document as amended, supplemented or replaced from time to time;
(e) a reference to legislation (or a provision thereof) includes any modification or re-enactment of it, any legislative provision substituted for it and all regulations and statutory instruments issued under it;
(f) a reference to includes, means includes without limitation; and
(g) all references to $ are to Australian dollars, unless otherwise noted.
The Partner, of the address and country of establishment provided upon registration, is the data exporter, and Prosple (PO Box 256, Blackheath, NSW, 2785), established in Australia, is the data importer (each a “party”; together “the parties”).
For the purposes of the clauses:
(a) “personal data”, “special categories of data/sensitive data”, “process/processing”, “controller”, “processor”, “data subject” and “supervisory authority/authority” shall have the same meaning as in Directive 95/46/EC of 24 October 1995 (whereby “the authority” shall mean the competent data protection authority in the territory in which the data exporter is established);
(b) “the data exporter” shall mean the controller who transfers the personal data;
(c) “the data importer” shall mean the controller who agrees to receive from the data exporter personal data for further processing in accordance with the terms of these clauses and who is not subject to a third country’s system ensuring adequate protection;
(d) “clauses” shall mean these contractual clauses, which are a free-standing document that does not incorporate commercial business terms established by the parties under separate commercial arrangements.
The details of the transfer (as well as the personal data covered) are specified in Annexure B, which forms an integral part of the clauses.
I. Obligations of the data exporter
The data exporter warrants and undertakes that:
(a) The personal data have been collected, processed and transferred in accordance with the laws applicable to the data exporter.
(b) It has used reasonable efforts to determine that the data importer is able to satisfy its legal obligations under these clauses.
(c) It will provide the data importer, when so requested, with copies of relevant data protection laws or references to them (where relevant, and not including legal advice) of the country in which the data exporter is established.
(d) It will respond to enquiries from data subjects and the authority concerning processing of the personal data by the data importer, unless the parties have agreed that the data importer will so respond, in which case the data exporter will still respond to the extent reasonably possible and with the information reasonably available to it if the data importer is unwilling or unable to respond. Responses will be made within a reasonable time.
(e) It will make available, upon request, a copy of the clauses to data subjects who are third party beneficiaries under clause III, unless the clauses contain confidential information, in which case it may remove such information. Where information is removed, the data exporter shall inform data subjects in writing of the reason for removal and of their right to draw the removal to the attention of the authority. However, the data exporter shall abide by a decision of the authority regarding access to the full text of the clauses by data subjects, as long as data subjects have agreed to respect the confidentiality of the confidential information removed. The data exporter shall also provide a copy of the clauses to the authority where required.
II. Obligations of the data importer
The data importer warrants and undertakes that:
(a) It will have in place appropriate technical and organisational measures to protect the personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, and which provide a level of security appropriate to the risk represented by the processing and the nature of the data to be protected.
(b) It will have in place procedures so that any third party it authorises to have access to the personal data, including processors, will respect and maintain the confidentiality and security of the personal data. Any person acting under the authority of the data importer, including a data processor, shall be obligated to process the personal data only on instructions from the data importer. This provision does not apply to persons authorised or required by law or regulation to have access to the personal data.
(c) It has no reason to believe, at the time of entering into these clauses, in the existence of any local laws that would have a substantial adverse effect on the guarantees provided for under these clauses, and it will inform the data exporter (which will pass such notification on to the authority where required) if it becomes aware of any such laws.
(d) It will process the personal data for purposes described in Annexure B, and has the legal authority to give the warranties and fulfil the undertakings set out in these clauses.
(e) It will identify to the data exporter a contact point within its organisation authorised to respond to enquiries concerning processing of the personal data, and will cooperate in good faith with the data exporter, the data subject and the authority concerning all such enquiries within a reasonable time. In case of legal dissolution of the data exporter, or if the parties have so agreed, the data importer will assume responsibility for compliance with the provisions of clause I(e).
(f) At the request of the data exporter, it will provide the data exporter with evidence of financial resources sufficient to fulfil its responsibilities under clause III (which may include insurance coverage).
(g) Upon reasonable request of the data exporter, it will submit its data processing facilities, data files and documentation needed for processing to reviewing, auditing and/or certifying by the data exporter (or any independent or impartial inspection agents or auditors, selected by the data exporter and not reasonably objected to by the data importer) to ascertain compliance with the warranties and undertakings in these clauses, with reasonable notice and during regular business hours. The request will be subject to any necessary consent or approval from a regulatory or supervisory authority within the country of the data importer, which consent or approval the data importer will attempt to obtain in a timely fashion.
(h) It will process the personal data in accordance with the data processing principles set forth in Annexure A.
(i) It will not disclose or transfer the personal data to a third party data controller located outside the European Economic Area (EEA) unless it notifies the data exporter about the transfer and
(i) the third party data controller processes the personal data in accordance with a Commission decision finding that a third country provides adequate protection, or
(ii) the third party data controller becomes a signatory to these clauses or another data transfer agreement approved by a competent authority in the EU, or
(iii) data subjects have been given the opportunity to object, after having been informed of the purposes of the transfer, the categories of recipients and the fact that the countries to which data is exported may have different data protection standards, or
(iv) with regard to onward transfers of sensitive data, data subjects have given their unambiguous consent to the onward transfer.
III. Liability and third party rights
(a) Each party shall be liable to the other parties for damages it causes by any breach of these clauses. Liability as between the parties is limited to actual damage suffered. Punitive damages (i.e. damages intended to punish a party for its outrageous conduct) are specifically excluded. Each party shall be liable to data subjects for damages it causes by any breach of third party rights under these clauses. This does not affect the liability of the data exporter under its data protection law.
(b) The parties agree that a data subject shall have the right to enforce as a third party beneficiary this clause and clauses I(b), I(d), I(e), II(a), II(c), II(d), II(e), II(h), II(i), III(a), V, VI(d) and VII against the data importer or the data exporter, for their respective breach of their contractual obligations, with regard to his personal data, and accept jurisdiction for this purpose in the data exporter’s country of establishment. In cases involving allegations of breach by the data importer, the data subject must first request the data exporter to take appropriate action to enforce his rights against the data importer; if the data exporter does not take such action within a reasonable period (which under normal circumstances would be one month), the data subject may then enforce his rights against the data importer directly. A data subject is entitled to proceed directly against a data exporter that has failed to use reasonable efforts to determine that the data importer is able to satisfy its legal obligations under these clauses (the data exporter shall have the burden to prove that it took reasonable efforts).
(c) The data exporter will indemnify and hold harmless the data importer from any cost, charge, damages, expense or loss the data exporter causes the data importer as a result of their breach of any of the provisions of these clauses. Indemnification hereunder is contingent upon (a) the data importer notifying the data exporter of a claim, (b) the data importer having sole control of the defence and settlement of any such claim, and (c) the data exporter providing reasonable cooperation and assistance to the data importer in defence of such claim.
IV. Law applicable to the clauses
These clauses shall be governed by the law of the country in which the data exporter is established, with the exception of the laws and regulations relating to processing of the personal data by the data importer under clause II(h), which shall apply only if so selected by the data importer under that clause.
V. Resolution of disputes with data subjects or the authority
(a) In the event of a dispute or claim brought by a data subject or the authority concerning the processing of the personal data against either or both of the parties, the parties will inform each other about any such disputes or claims, and will cooperate with a view to settling them amicably in a timely fashion.
(b) The parties agree to respond to any generally available non-binding mediation procedure initiated by a data subject or by the authority. If they do participate in the proceedings, the parties may elect to do so remotely (such as by telephone or other electronic means). The parties also agree to consider participating in any other arbitration, mediation or other dispute resolution proceedings developed for data protection disputes.
(c) Each party shall abide by a decision of a competent court of the data exporter’s country of establishment or of the authority which is final and against which no further appeal is possible.
(a) In the event that the data importer is in breach of its obligations under these clauses, then the data exporter may temporarily suspend the transfer of personal data to the data importer until the breach is repaired or the contract is terminated.
(b) In the event that:
(i) the transfer of personal data to the data importer has been temporarily suspended by the data exporter for longer than one month pursuant to paragraph (a);
(ii) compliance by the data importer with these clauses would put it in breach of its legal or regulatory obligations in the country of import;
(iii) the data importer is in substantial or persistent breach of any warranties or undertakings given by it under these clauses;
(iv) a final decision against which no further appeal is possible of a competent court of the data exporter’s country of establishment or of the authority rules that there has been a breach of the clauses by the data importer or the data exporter; or
(v) a petition is presented for the administration or winding up of the data importer, whether in its personal or business capacity, which petition is not dismissed within the applicable period for such dismissal under applicable law; a winding up order is made; a receiver is appointed over any of its assets; a trustee in bankruptcy is appointed, if the data importer is an individual; a company voluntary arrangement is commenced by it; or any equivalent event in any jurisdiction occurs then the data exporter, without prejudice to any other rights which it may have against the data importer, shall be entitled to terminate these clauses, in which case the authority shall be informed where required. In cases covered by (i), (ii), or (iv) above the data importer may also terminate these clauses.
(c) Either party may terminate these clauses if (i) any Commission positive adequacy decision under Article 25(6) of Directive 95/46/EC (or any superseding text) is issued in relation to the country (or a sector thereof) to which the data is transferred and processed by the data importer, or (ii) Directive 95/46/EC (or any superseding text) becomes directly applicable in such country.
(d) The parties agree that the termination of these clauses at any time, in any circumstances and for whatever reason (except for termination under clause VI(c)) does not exempt them from the obligations and/or conditions under the clauses as regards the processing of the personal data transferred.
VII. Variation of these clauses
The parties may not modify these clauses except to update any information in Annexure B, in which case they will inform the authority where required. This does not preclude the parties from adding additional commercial clauses where required.
VIII. Description of the Transfer
The details of the transfer and of the personal data are specified in Annexure B. The parties agree that Annexure B may contain confidential business information which they will not disclose to third parties, except as required by law or in response to a competent regulatory or government agency, or as required under clause I(e). The parties may execute additional annexes to cover additional transfers, which will be submitted to the authority where required. Annexure B may, in the alternative, be drafted to cover multiple transfers.
DATA PROCESSING PRINCIPLES
1. Purpose limitation: Personal data may be processed and subsequently used or further communicated only for purposes described in Annexure B or subsequently authorised by the data subject.
2. Data quality and proportionality: Personal data must be accurate and, where necessary, kept up to date. The personal data must be adequate, relevant and not excessive in relation to the purposes for which they are transferred and further processed.
3. Transparency: Data subjects must be provided with information necessary to ensure fair processing (such as information about the purposes of processing and about the transfer), unless such information has already been given by the data exporter.
4. Security and confidentiality: Technical and organisational security measures must be taken by the data controller that are appropriate to the risks, such as against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, presented by the processing. Any person acting under the authority of the data controller, including a processor, must not process the data except on instructions from the data controller.
5. Rights of access, rectification, deletion and objection: As provided in Article 12 of Directive 95/46/EC, data subjects must, whether directly or via a third party, be provided with the personal information about them that an organisation holds, except for requests which are manifestly abusive, based on unreasonable intervals or their number or repetitive or systematic nature, or for which access need not be granted under the law of the country of the data exporter. Provided that the authority has given its prior approval, access need also not be granted when doing so would be likely to seriously harm the interests of the data importer or other organisations dealing with the data importer and such interests are not overridden by the interests for fundamental rights and freedoms of the data subject. The sources of the personal data need not be identified when this is not possible by reasonable efforts, or where the rights of persons other than the individual would be violated. Data subjects must be able to have the personal information about them rectified, amended, or deleted where it is inaccurate or processed against these principles. If there are compelling grounds to doubt the legitimacy of the request, the organisation may require further justifications before proceeding to rectification, amendment or deletion. Notification of any rectification, amendment or deletion to third parties to whom the data have been disclosed need not be made when this involves a disproportionate effort. A data subject must also be able to object to the processing of the personal data relating to him if there are compelling legitimate grounds relating to his particular situation. The burden of proof for any refusal rests on the data importer, and the data subject may always challenge a refusal before the authority.
6. Sensitive data: The data importer shall take such additional measures (e.g. relating to security) as are necessary to protect such sensitive data in accordance with its obligations under clause II.
7. Data used for marketing purposes: Where data are processed for the purposes of direct marketing, effective procedures should exist allowing the data subject at any time to “opt-out” from having his data used for such purposes.
8. Automated decisions: For purposes hereof “automated decision” shall mean a decision by the data exporter or the data importer which produces legal effects concerning a data subject or significantly affects a data subject and which is based solely on automated processing of personal data intended to evaluate certain personal aspects relating to him, such as his performance at work, creditworthiness, reliability, conduct, etc. The data importer shall not make any automated decisions concerning data subjects, except when:
(a) (i) such decisions are made by the data importer in entering into or performing a contract with the data subject, and
(ii) (the data subject is given an opportunity to discuss the results of a relevant automated decision with a representative of the parties making such decision or otherwise to make representations to that parties.
(b) where otherwise provided by the law of the data exporter.
DESCRIPTION OF THE TRANSFER
The personal data transferred concern the following categories of data subjects: any data subject who accesses the data importer’s online platform. Only data subjects over 16 years of age are allowed to use the data importer’s platform. These include students, application end-user, and customers.
Purposes of the transfer(s)
The transfer is made for the following purposes: connecting the data subjects with the data exporter through the services provided by the data importer.
Categories of data
The personal data transferred concern the following categories of data: Any information which the data subject may provide during registration or on their curriculum vitae including name, home address, birthday/age, nationality, work permit, phone number, email address, education, photograph, leisure activities, and sensitive data.
The personal data transferred may be disclosed only to the following recipients or categories of recipients: employees of the parties, the two corporate parties, the data subject whose information is being transferred, any bodies to meet legal requirements
Sensitive data (if appropriate)
The personal data transferred concern the following categories of sensitive data: racial or ethnic origin, political opinions, religious or philosophical beliefs, trade union membership, or data concerning health or data concerning a natural person’s sex life or sexual orientation.
Data protection registration information of data exporter (where applicable): as provided to the data importer upon registration.
Additional useful information (storage limits and other relevant information): NA
Contact points for data protection enquiries
Data importer: [email protected]
Data exporter: The email address provided for this party on registration