Last updated: November 2023
1. General and Scope
1.1 The present general terms and conditions (hereinafter referred to as the “Terms and Conditions”) apply to any Commercial Offer, Statement of Work or Trial Account (all as defined hereinafter) executed between OBJECTIVE7 BV, with registered office at Prins Boudewijnlaan 218A, 2650 Edegem, Belgium, RLE Commercial Court Antwerp, division Antwerp, and registered in the Crossroad Bank for Enterprises under enterprise number 0845.741.317 (hereinafter referred to as “Pointerpro”) and the Client for the provision of the Services and Online Software Services by Pointerpro to the Client.
If you are an employee (or contractor) of the Client entering into this Agreement on behalf of the Client, you represent and warrant that (i) you have full legal authority to bind the Client to this Agreement; (ii) you have read and understand this Agreement; and (iii) you agree on behalf of the Client to this Agreement.
1.2 Unless explicitly agreed upon otherwise in writing between the Parties, the Client expressly waives the application of its own general and special terms and conditions, even where it is stated therein that only those conditions may apply and even if such terms and conditions were not protested by Pointerpro. If and to the extent applicability of other terms than these Terms & Conditions has been agreed to in writing between the Parties, these Terms and Conditions will remain applicable in a supplementary fashion.
1.3 These Terms and Conditions equally apply to Trial Users, it being understood that Trial Users will have a (limited) Trial Account and/or Free Account. The scope of the Trial Account shall be determined by Pointerpro in its sole discretion. Trial Users will have all rights and obligations of the Clients during the Trial Term, unless expressly stated otherwise herein or if the context requires otherwise. For the avoidance of doubt, any reference to “Client” shall imply a reference to “Trial User” for the purpose of a Trial Account.
2. Definitions
2.1 For the purposes of these Terms and Conditions, the following definitions will apply, unless expressly stated otherwise and/or if the context clearly requires otherwise:
“Add-On” means an addition of a certain Feature or Functionality that is not included in the applicable Subscription Plan. Pointerpro reserves the right at all times to determine which specific Feature and Functionality it may separately offer. Upon request, Pointerpro shall inform the Client of the available Add-Ons.
“Agreement” means the entire contractual relationship between the Parties, governed by (in hierarchical order) (i) the Commercial Offer, (ii) a Statement Of Work (to the extent applicable) and (iii) t these Terms and Conditions with its Annexes.
“Annex(es)” means an(y) annex to these Terms and Conditions, which will be an integral part of it.
“Authorized User” means a physical person in the Client’s organisation (employees and contractors) who is granted access to the Online Software Service by the Client. The amount of Authorized Users is strictly limited to the amount corresponding to the applicable Subscription Plan as identified in the Commercial Offer. By default, only one Authorized User shall be included in a subscription, unless the applicable Subscription Plan allows for multiple Authorized Users.
“Business Day” means a normal working day of Pointerpro from 8.30 a.m. to 5.30 p.m. CET, from Monday to Friday, excluding Belgian public holidays.
“Change of Circumstances” means any unforeseeable change of circumstances that occurs after the conclusion of the Agreement, is not attributable to Pointerpro and makes the performance of the Agreement, or any of Pointerpro’s obligations thereunder, excessively onerous for Pointerpro, such that requiring performance from Pointerpro of that obligation would be unreasonable.
“Client” means any person or legal entity requesting a Commercial Offer and/or entering into (or wishing to enter into) contractual relations with Pointerpro, as identified in the Commercial Offer, or as applicable a Trial User.
“Client Data” means all data proprietary to, or held by the Client which is inputted or uploaded by the Client, the Authorized Users or the End Users when using the Online Software Service and as processed or stored by Pointerpro. Client Data shall also include output data resulting from the processing by the Online Software Service of the entered data by the Client, the Authorized User or the End User.
“Client Personal Data” means the personal data (within the meaning of the Applicable Privacy Laws) proprietary to or held by the Client, which is inputted or uploaded by the Client, the Authorized Users or the End Users when using the Online Software Service and as processed or stored by Pointerpro on behalf of the Client.
“Commercial Offer” means the offer to the Client including the applicable Subscription Plan and (as applicable) the nature, the amount of as well as the other specifics of the Online Software Services subscribed to by the Client (and/or any additional Services), which forms an integral part of the Agreement. Unless expressly agreed upon otherwise in writing, an offer is valid only for the period specified in it. If no period is specified in the Commercial Offer, its validity will be limited to sixty (60) calendar days. The Commercial Offer can be agreed to via click-through or via email (as applicable), after which the Agreement is concluded.
“Confidential Information” means all information of whatever nature and in whatever form, such as (but not limited to) financial, commercial, legal, fiscal, social, technical, and organizational nature, business and trade secrets, business partner-, customer- and supplier-data, employee data, any and all personal data, ideas, presentations, content, programs, computer programs, computer code (in any form), databases modules, scripts, designs, figures, geographical content and functional specifications, discounts, invoices, and payments, commercial and promotional strategies, the development and promotion of new products/services and trademarks or the negotiating or renegotiating of this or any other agreement, as well as the content of this Agreement, that is furnished by the disclosing Party to the receiving Party or its representatives prior to entering in the Agreement, as well as during the performance of the Agreement unless (i) said information was already available in the public domain and was not made available in the public domain as a result of a breach of a Party of the obligations as set forth in this Agreement, (ii) said information can be proven by a Party to the reasonable satisfaction of the disclosing Party to be lawfully in the receiving Party’s possession, prior to any disclosure by the disclosing Party, (iii) said information can be proven by receiving Party, to the reasonable satisfaction of the disclosing Party, to have been lawfully obtained from a third party, who was not under a confidentiality obligation towards the disclosing Party, and/or (iv) said information was independently developed by the receiving Party, without any access or reference to, or use of, the disclosing Party’s confidential information.
“Effective Date” means the date on which execution of the Agreement will commence, as specified in the Commercial Offer. If no effective date has been specified, the effective date is the date of granting access to the Online Software Services to the Client by Pointerpro.
“End User” means any individual to whom the Online Software Service will be made available by the Client and who will be able to use the Online Software Service as an end user under the responsibility of the Client.
“Features or Functionalities” means the features or functionalities available in the Online Software Service as included in the applicable Subscription Plan such as (for example but not limited to) the number of monthly responses, the number of Authorized Users, the possibility to white-label and any other variable specific to a certain Subscription Plan. Pointerpro reserves the right to add or evolve Features and/or Functionalities at any time.
“Force Majeure” means a temporary or permanent inability of a Party to fulfil one or more of its obligations under the Agreement, resulting from an unavoidable, unforeseeable and external fact and/or circumstance, reasonably beyond the control of that Party. The following non-exhaustive events shall in any case be considered as Force Majeure by the Parties: war, terrorism, natural disaster, insurrection or public revolt, fire, embargoes or other government imposed measures, internet failure, hosting failure, hacking, floods, explosion, strike or social action, pandemics (including but not limited to any and all extraordinary measures taking by national and international bodies to mitigate detrimental effect thereof) and any shortcomings of a third party that Pointerpro relies on for the performance of its obligations under the Agreement caused by a legitime Force Majeure event, liquidation, judicial reorganization or other insolvency procedure.
“Free Account” means the account to which the Trial User still has access upon expiry of the Trial Term of the Trial Account. The Free Account only has very limited Features and/or Functionalities made which are made available by Pointerpro on its sole discretions since this is not subject to any payment.
“Hosting Partner” means at present Amazon Web Services EMEA (or any other provider of such hosting services Pointerpro might contract in the future).
“Initial Term” means the duration for which the Agreement has been initially concluded as stated in the Commercial Offer.
“Intellectual Property Rights” means (non-exhaustive list) any and all patents, trademarks, copyrights, rights in software programs (both in object code and source code), design rights, database rights, proprietary rights in know-how, business names, trade names and all rights or forms of protection of a similar nature or having equivalent or similar effect to any of the afore listed which may subsist anywhere in the world, and any other intellectual or industrial property rights in any country and any existing or future applications for or registrations of such rights.
“Online Software Services” means the cloud services as provided by Pointerpro for creating a quiz or survey.
“Parties” means the Client (or the Trial User, as applicable) and Pointerpro.
“Party” means the Client, the Trial User or Pointerpro.
“Privacy Laws” means (i) the Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (“GDPR”), (ii) the Directive (EU) 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (“e-Privacy Directive”), (iii) the Belgian Act of 30 July 2018 on the protection of natural persons with regard to the processing of personal data and (iv) the Belgian Act of 13 June 2005 on electronic communications.
“Renewal Term” means the automatic and tacit renewal of the Agreement after the Initial Term for consecutive periods of one (1) year.
“Services Fee” means the fee due by the Client in compensation for the rendering of the Services, as specified in the Commercial Offer or the Statement of Work (as applicable).
“Services” mean any additional development, implementation, consultancy and integration services (including, but not limited to customizations) or any such other services in relation to the Online Software Service to be performed by Pointerpro to the Client as may be agreed to in writing between the Parties from time to time and as set out in the Commercial Offer and/or a Statement of Work.
“Statement of Work” means a written document, duly signed by both Parties, that Parties may enter into from time to time describing the Services that Pointerpro is to provide in connection with the Online Software Service. In case of limited or minor arrangements, the description of such Services can be agreed via email.
“Subscription Fee” means the amounts due by the Client to gain access to and use the Online Software Service as well as to receive the maintenance and support services as specified in the Commercial Offer.
“Subscription Plan” means the commercial feature-based model pursuant to which the Client licenses the Online Software Service. Each Subscription Plan comes with a different Subscription Fee and includes different Features and/or Functionalities, as specified in the Commercial Offer.
“Term” means the total duration of the Agreement, i.e. the Initial Term as well as any Renewal Term.
“Trial Account” means an account to which a Trial User subscribes free of charge, but which is only available during the Trial Term and for limited use of the Online Software Service only (as set out in this Agreement).
“Trial Term” means the limited term of fourteen (14) calendar days (or other term as communicated by Pointerpro in writing to the Trial User) to use the Online Software Service as part of a Trial Account.
“Trial User” means a legal entity who is not a Client, has not been a Trial User previously and subscribes free of charge to a Trial Account subject to the terms of the Agreement.
3. License
3.1 Subject to the terms of the Agreement and timely payment of the Subscription Fees, Pointerpro grants to Client a personal, restricted, non-exclusive, non-transferrable and non-assignable license, without the right to sublicense, to use the Online Software Service through its Authorized Users for its internal business purposes and to make the Online Software Service available to the End Users. If applicable pursuant the relevant Subscription Plan, the foregoing shall also include the right to make a white-labelled version of the Online Software Service available to the End Users.
3.2 With respect to Trial Accounts, the Trial User is granted a limited, revocable, non-exclusive, non-transferable right to use the Online Software Service during the Trial Term and subject to the Trial User’s continued compliance with this Agreement, it being understood that Trial Users are not charged any Subscription Fees during the Trial Term. The scope of the Trial User’s right to use the Online Software Service shall be determined by Pointerpro in its sole discretion as shall be limited to the Features and Functionalities made available by Pointerpro in the Online Software Service. Pointerpro shall at all times be entitled to change the scope of the Trial User’s rights.
3.3 The extent of any license granted under this Agreement is restricted to the scope expressly set forth in the Agreement. In no event shall there be any implied licenses under this Agreement.
3.4 The Client shall comply with all applicable laws relating to the use of the Online Software Service, including the applicable data protection and Privacy Laws. The Client acknowledges that the Online Software Service may include encryption and may, accordingly, be subject to export or other restrictions.
3.5 Except if and insofar as permitted by this Agreement or under applicable law, the Client shall neither directly nor indirectly (including for example, but not limited to, through the actions of any of its Authorized Users, End Users, agents, contractors, employees, representatives, subcontractors, or in general, any other third party): (i) arrange or create derivative works based on the Online Software Service without Pointerpro’s express written consent; (ii) assign, distribute, sub-license, hire, transfer, sell, lease, rent, charge or otherwise deal in or encumber the Online Software Service, or use the Online Software Service on behalf of any third party or make them available to any third party, nor allow or permit a third party to do any of the same; (iii) copy, duplicate, reverse engineer, reverse compile, disassemble, record or otherwise reproduce the Online Software Service or any part of them, or (iv) remove or alter any copyright or other proprietary notice on any of the Online Software Service.
3.6 The Client acknowledges that, both during the use of the Online Software Services and in the output of such services, recommendations may be included. Unless explicitly agreed otherwise in writing between the Parties, the Client bears full and sole responsibility for the use and/or implementation of any such recommendations.
4. Subscription Plans
4.1 The Online Software Service is provided pursuant to different Subscription Plans as agreed upon between the Parties. Each Subscription Plan comes with access to different Features and/or Functionalities. The Client shall be entitled to use such Features and Functionalities as set out in the applicable Subscription Plan (which shall be specified in the Commercial Offer) or as additionally ordered in accordance with clause 4.2 below.
4.2 If the Client wishes to make use of additional Features and/or Functionalities other than included in the relevant Subscription Plan, it may at any time request the purchase of Add-Ons to its Subscription Plan for which the Parties shall sign (or subscribe to) an additional Commercial Offer. Upon request, Pointerpro shall inform the Client of which Add-Ons are available and the applicable costs.
4.3 The Client acknowledges and agrees that certain data or output resulting from the use of the Online Software Service (such as, but not limited to End User responses) in excess of the limits foreseen in the applicable Subscription Plan, will only be available to the Client if the applicable Subscription Plan is upgraded accordingly.
5. Usage Control
Pointerpro has the right to monitor and inspect the usage of the Online Software Service by the Client, the Authorized Users and/or the End Users (including but not limited to monitoring the use of the applicable Features and Functionalities and Add-Ons) to improve the Online Software Services and/or Services.
6. Services
6.1 The Agreement may require Pointerpro to perform certain Services to the Client. In such event, the scope of the Services as well as the applicable Services Fees will be detailed in a Commercial Offer or Statement of Work.
6.2 Pointerpro shall provide any Services pursuant to the Agreement in complete independence and shall plan its activities as it sees fit. Said independence constitutes an essential element of the Agreement in the absence of which the Parties would not have concluded it.
6.3 During the performance of the Services, Pointerpro reserves the right to reassign or remove any of its resources and personnel involved in the performance of the Services, to its sole discretion.
6.4 Pointerpro undertakes to perform the Services to the best of its abilities, but does in no way whatsoever guarantee that the Services will serve the exact or specific purpose intended by the Client. The Client agrees that in order to enable Pointerpro to perform the Services properly, timely and efficiently, the Client must cooperate with Pointerpro in good faith. In this regard, the Client will provide Pointerpro with all necessary and/or useful information, as well as any information and data explicitly requested by Pointerpro. The Client will provide this information and data to Pointerpro in a common and readable format or in the specific format as stated in the Statement of Work.
6.5 The Client acknowledges that the Services may include advice and recommendations. Unless explicitly stated otherwise in the Agreement, the Client will bear full and sole responsibility for any use and/or implementation of any such advice and/or recommendations.
7. Client Data
7.1 The Client is at all times solely liable and responsible for the correctness and adequacy of Client Data inputted by the Authorized Users or the End Users (as applicable). Pointerpro will in no event be liable for damages or liability resulting from incorrect or insufficient Client Data inputted in the Online Software Service.
7.2 All Client Data will remain the exclusive property of the Client. The Client hereby grants Pointerpro for the Term a non-exclusive, royalty-free, worldwide, non-revocable, sublicensable, transferable, perpetual license to use, copy, store, modify, transmit and display such Client Data (including any other content and information provided, transmitted or uploaded through the Online Software Services) solely for the performance of its obligations under this Agreement and to improve the functioning and provision of the Online Software Service in the advantage of the Client. Pointerpro shall not sell any Client Data or use the Client Data for marketing or any other purposes than the performance of the Agreement.
7.3 The Client warrants to Pointerpro that at any time during the Term the Client Data (i) does not infringe any Intellectual Property Rights or any other legal rights of a third party, and (ii) does not breach the provisions of any law, statute or regulation, in any jurisdiction and under any applicable law.
The Client acknowledges and agrees that it shall be solely responsible for the Client Data that is distributed or accessible through the Online Software Service. Pointerpro shall in no event be responsible nor held liable for any such Client Data. In particular, the Client represents and warrants that no Client Data is distributed through the Online Software Service that in any manner: (i) violates any applicable, local, state, national, regional or international law, statute, ordinance or regulations; (ii) is illegal, criminal, deceptive, fraudulent or any other action that is unlawful, harmful, threatening, abusive, harassing, tortious, violent, defamatory, vulgar, obscene, invasive of others privacy, hateful racially, ethnically or otherwise objectionable, or (iii) adversely or negatively, even potentially, affects or reflects Pointerpro’s name, reputation or goodwill.
7.4 In the event Pointerpro becomes aware of a violation by the Client of its obligations under this article 7, it will notify the Client of this, for example by e-mail. Following this notification, the Client will immediately remove the infringing part of the Client Data itself (if technically possible) or authorize Pointerpro to remove or block the relevant Client Data.
If the Client does not delete or authorize Pointerpro to do delete the infringing Client Data within two (2) working days after Pointerpro’s notice, Pointerpro shall have the right to (i) remove or block the concerning Client Data, and/or (ii) immediately terminate the Agreement (or alternatively, at Pointerpro’s discretion, refuse or suspend any access to and use of the Online Software Service) for material breach, without any formalities being required and without prejudice to any other rights or remedies available to Pointerpro pursuant to this Agreement or under applicable law.
8. Third Party Components and Hosting
8.1 The Client acknowledges and agrees that in order to use the Online Software Service, it needs appropriate hardware (modern day laptop or desktop) and stable internet connection. The Client is at all times solely responsible for acquiring and maintaining – for the entire duration of the Term – the aforementioned equipment and infrastructure. If additional and/or special hardware is required, this will be stated in the Commercial Offer.
8.2 The Online Software Service will be hosted by Pointerpro in the data centers of the Hosting Partner. The Client represents and warrants that it accepts the applicable terms and conditions of the Hosting Partner that will be made available by Pointerpro or the Hosting Provider (as applicable) to the Client. The current version of the applicable terms and conditions can be found on https://aws.amazon.com/service-terms/. The Client acknowledges and agrees that the Hosting Partner retains the right to unilaterally change any such terms and conditions (including the hyperlink to such terms and conditions). Therefore, Pointerpro strongly encourages the Client to check the Hosting Partner’s terms and conditions regularly for updates. Unless expressly otherwise stated in this Agreement, the hosting services shall solely be governed by the applicable Hosting Partner terms and conditions and (without limitation) any warranties, indemnification and maintenance and support provided hereunder by Pointerpro in respect of the Online Software Service shall not apply in respect of such hosting services (except as expressly otherwise agreed to in writing by Pointerpro).
8.3 Pointerpro does not give any warranty whatsoever, be it direct, indirect, explicit or implied, regarding uninterrupted availability of the Online Software Service. Pointerpro shall use commercially reasonable efforts to provide availability of the Online Software Service. In no event shall Pointerpro be responsible and/or held liable for any downtime that is caused by the Hosting Provider. In case of unavailability of the Online Software Services due to a fault or negligence of Pointerpro, the provisions of article 20 of these Terms and Conditions on liability will apply.
8.4 The Client acknowledges that the hosting services and the Online Software Services might not be available during periods of planned maintenance by Pointerpro or the Hosting Provider. If reasonably feasible, any planned maintenance by Pointerpro will be performed outside of Business Days and Pointerpro will inform the Client as soon as reasonable possible of any planned maintenance.
8.5 Pointerpro reserves the right to conduct any unplanned maintenance at any time if necessary for security reasons or other reasons requiring immediate maintenance. Pointerpro or the Hosting Partner will not be held liable for any damages resulting from such unavailability of the Online Software Service.
8.6 If and to the extent any specific service levels have been agreed to between the Parties, these service-levels will be stated in the Commercial Offer and/or in any other applicable service-level-agreement, as may be concluded between the Parties.
9. Intellectual Property Rights
Pointerpro is and remains the sole and exclusive proprietary owner of all Intellectual Property Rights related to the Online Software Service and the Services (including any new versions, updates, customizations, enhancements, modifications or improvements made to the Online Software Service or the Services). Except for the limited license granted pursuant to article 3 of these Terms and Conditions, no other rights in respect of Pointerpro’s Intellectual Property Rights will be granted or transferred to the Client in connection with this Agreement. Nothing in this Agreement shall convey any title or proprietary right or Intellectual Property Rights in or over the Online Software Services or Services to the Client or any third party. The Client shall in no way acquire any title, rights of ownership, copyrights, Intellectual Property Rights or other proprietary rights of whatever nature in the Online Software Services or Services. The Client agrees not to remove, suppress or modify in any way any proprietary marking, including any trademark or copyright notice, on or in the Online Software Services, or visible during its operation or on media. All Client Data shall remain property of the Client, in accordance with article 7 of these Terms and Conditions.
10. Confidentiality
10.1 The Parties shall keep confidential, and shall not directly or indirectly disclose to others or use for any purpose not specifically authorized by the Agreement, any Confidential Information of the other Party for the entire duration of the Agreement as well as for a period of three (3) years following the termination of the Agreement. Confidential Information will always remain the property of the disclosing Party, unless otherwise explicitly agreed in writing.
10.2 Pointerpro is entitled to disclose Confidential Information of the Client to its employees, sub-contractors, and other third parties, to the extent necessary for the provision of the Services and Online Software Services and Services to the Client and to the extent these third parties are bound by a confidentiality obligation.
10.3 The Client will only disclose Confidential Information of Pointerpro to third parties to the extent explicitly allowed by Pointerpro in writing and to the extent these third parties are bound by a confidentiality obligation imposing at least the same restrictions as this article 10 of these Terms and Conditions.
11. Privacy and Data Protection
11.1 The Parties will always comply with the Privacy Laws for the processing of personal data when performing the Agreement.
11.2 In particular, the Client represents and warrants to Pointerpro that it has the legal right to disclose any personal data that is made available to Pointerpro under or in connection with this Agreement (including, but not limited to, any personal data that might by disclosed by the Authorized Users or End Users while using the Online Software Service) and that the Client has a valid legal ground to process such personal data and to disclose such personal data to Pointerpro in accordance with the applicable Privacy Laws. The Client undertakes to sufficiently inform all data subjects about such processing activities by the Client and/or Pointerpro (as applicable) in accordance with the applicable Privacy Laws.
11.3 Pointerpro shall use Client Personal Data only for the execution of this Agreement and in accordance with the data processing agreement included in Annex 1 to these Terms and Conditions.
12. Third Party Claims
12.1 The Client will indemnify, defend and hold Pointerpro harmless from and against any and all claims and procedures initiated by a third party, that might arise or result from any action or omission by the Client in violation of this Agreement and/or any other applicable legal obligations. Among other things, Client shall indemnify Pointerpro against all claims by End Users or other third parties arising from incorrect or unlawful use of the Online Software Service, violation of the Privacy Legislation, infringement of third parties Intellectual Property Rights and/or other rights of those third parties by the Client or its Authorized Users.
12.2 This indemnification obligation will cover all direct and indirect damages suffered by Pointerpro (including its agents, contractors, directors, employees or representatives) as a result of any third party claim, including but not limited to losses, costs and expenses (including reasonable attorney fees), reputational damage etc.
13. Fees
13.1 The Subscription Fee and the Services Fee are as stated in the Commercial Offer, and are exclusive of VAT and/or other taxes and levies, any costs and expenses (such as but not limited to insurance, legal, administration,…) which may be charged separately by Pointerpro (if applicable).
13.2 The Subscription Fee is subject to yearly indexation. In the absence of an agreement between the Parties concerning the fashion of indexation of the Subscription Fee, Pointerpro is entitled to change 80% of the amount of the Subscription Fee, in accordance with the following formula:
F = F0 x (0,2 + L1/LO x 0,8), whereby:
F = New fee;
F0 = Original fee for the Initial Term;
L0 = Original labor cost cf. the applicable salary index for companies in the digital sector published by the Belgian organization Agoria for the month prior to the Effective Date.
L1 = New labor cost cf. the aforementioned salary index for the year wherein the indexation takes place.
Pointerpro will communicate the new Subscription Fee to the Client and this new Subscription Fee will apply for the Renewal Term.
14. Invoicing and Payment of The Subscription Fee
14.1 The Client will pay the Subscription Fee in advance either (i) annually or (ii) monthly, as agreed upon in the applicable Commercial Offer.
14.2 Payment of the Subscription Fee can be made via either (i) credit card or (ii) wire transfer to Pointerpro’s bank account number as indicated in the Commercial Offer and/or the applicable invoice. The payment method agreed to between the Parties shall be identified in the applicable Commercial Offer.
14.3 The Client expressly acknowledges and agrees that all upfront payments under this Agreement are final and non-refundable. Without prejudice to Client’s rights under applicable law in the event of a termination due to Pointerpro’s intententional breach, willful misconduct or gross negligence, the Client shall not be not be entitled to a refund of the paid Subscription Fees or Services Fees in case of early termination of the Agreement.
14.4 Payment via Credit Card
14.4.1 In the event the Parties agreed to annual upfront payment of the Subscription Fee via credit card, the Client will pay the first annual Subscription Fee for the Initial Term via credit card prior to the Effective Date. Upon renewal of the Agreement in accordance with article 17.2 of these Terms and Conditions, the Parties agree that the Subscription Fee for any Renewal Term will be automatically debited from the Client’s credit card five (5) working days prior to the first day of the Renewal Term. Upon receipt of payment, Pointerpro will issue the corresponding invoice to the Client.
14.4.2 In the event the Parties agreed to monthly upfront payment of the Subscription Fee via credit card, the Client will pay the first monthly Subscription Fee via credit card prior to the Effective Date. The Parties agree that the following monthly Subscription Fees for the Initial Term of the Agreement will be automatically debited from the Client’s credit card, five (5) working days prior to the first day of the next month. Upon renewal of the Agreement in accordance with article 17.2 of these Terms and Conditions, the Parties explicitly agree to the continuation of this monthly debiting from the Client’s credit card. Upon receipt of payment, Pointerpro will Pointerpro will issue a corresponding invoice.
14.4.3 If an upfront payment of the Subscription Fee is not received by Pointerpro in accordance with the provisions of article 14.4 of these Terms and Conditions, Pointerpro reserves the right to suspend any use of and access to the Online Software Service by the Client, as well as the performance of any Services, until payment in full (incl. any applicable interest and damages) has been received.
14.5 Payment via Wire-transfer
14.5.1 In the event the Parties agreed to annual upfront payment of the Subscription Fee by wire transfer, the Client will pay the annual Subscription Fee in full within thirty (30) calendar days as of the date of the invoice.
15. Invoicing and Payment of The Services Fees
15.1 In the event the Agreement includes performance of Services by Pointerpro, the agreed upon Services Fee will be invoiced separately to the Client according to the terms of the applicable Statement of Work or Commercial Offer.
15.2 Any invoice for the Services Fee will be paid by the Client in full within thirty (30) calendar days as of the date of invoice.
16. General Invoicing & Default of Payment
16.1 Invoices will be sent by Pointerpro to the Client in PDF-format to the Client’s email address stated in the Commercial Offer. The Client expressly acknowledges and agrees that such communication by e-mail constitutes an official and formal notice of request for payment. Except if explicitly stated otherwise in the Agreement, Pointerpro will not send a physical copy of the invoices to the Client’s address.
16.2 Any dispute regarding any invoices from Pointerpro must be notified to Pointerpro via invoices@pointerpro.com within eight (8) calendar days as of the date of receipt of the relevant invoice. In the event the Client has failed to dispute an invoice within the aforementioned term, the Client will be irrevocable deemed to have fully accepted the concerned invoice. Disputing a part of an invoice, does not discharge the Client of its obligation to pay the non-disputed amount of the invoice.
16.3 All payments under this Agreement shall be made in the currency stated in the Agreement and are exclusive of VAT and/or other taxes and levies, any costs and expenses (such as but not limited to insurance, legal, administration,…) which may be charged separately by Pointerpro (if applicable).
16.4 All amounts payable to Pointerpro under the Agreement shall be paid without the right to set off or counterclaim and free and clear of all deductions or withholdings whatsoever unless the same are required by law, in which case the Client undertakes to pay Pointerpro such additional amounts as are necessary in order that the net amounts received by Pointerpro, after all deductions and withholdings, shall not be less than such payments would have been in the absence of such deductions or withholdings.
16.5 Upon failure by the Client to pay any invoice (in whole or partially) by the due date, or if the Client fails to timely pay any other amount due to Pointerpro, the Client shall, automatically and without prior notice, owe Pointerpro: (i) interests on the outstanding amount at the rate of one percent (1%) per month as from the due date until payment in full has been received by Pointerpro, and (ii) a lump sum compensation of fifteen percent (15%) of the outstanding balance with a minimum of two hundred and fifty euros (€ 250,00) for costs associated with the adverse effect on Pointerpro’s cash flow, as liquidated damages. This article 16.5. is without prejudice to any other (legal) rights Pointerpro may have and invoke as a result of the late, incomplete or non-payment by the Client.
16.6 Pointerpro is entitled to suspend performance of its obligations under the Agreement to the extent the Client is in default of any (payment) obligation under the Agreement or in the event the Client demonstrates to be insolvent.
16.7 Partial payments will be accepted by Pointerpro without any prejudice and will be deducted (in respective order) from (i) interest due, (ii) liquidated damages and (iii) unpaid invoices.
16.8 Late, incomplete or non-payment of one invoice, will cause all other invoices, for which a particular payment date has been agreed upon, to become immediately due and payable, without prior formal notice.
16.9 If during the Agreement an event occurs, including but not limited to the failure to (timely) pay one or more invoices or the fact that the Client or its assets are subjected to attachment measures, which raises reasonable doubts for Pointerpro about the creditworthiness of the Client, Pointerpro is entitled to demand, for the further performance of the Agreement, an (additional) advance payment or to request guarantees.
17. Term & Termination
17.1 The Agreement will commence on the Effective Date and shall continue for a fixed Initial Term as specified in the Commercial Offer. During the Initial Term the Agreement cannot be terminated, except in application of articles 17.3., 17.5. and 17.6. of these Terms and Conditions.
17.2 Upon expiry of the Initial Term, the Agreement shall automatically and tacitly renew for consecutive Renewal Terms, unless either Party notifies the other Party in writing (or in the event of payment via credit card via click-through in the Online Software Service) of its intent not to renew the Agreement. This notification needs to be done at the latest one (1) month before the end of the Initial Term or the then current Renewal Term.
17.3 The Parties can at all times terminate the Agreement by mutual written agreement.
17.4 In the event of a Trial Term, the Trial Account shall automatically end at the end of that Trial Term. However, the Trial User will still have access to a Free Account. In the event of a conversion to a paid Subscription Plan, the Trial User shall become a Client and thus shall become liable to pay the applicable Subscription Fee and to comply with all terms and conditions of this Agreement.
17.5 Either Party may immediately terminate the whole or any portion of the Agreement without any prior judicial intervention, without being liable for compensation and without prejudice to its rights to damages and any other rights, remedies and/or claim to which it may be entitled by law, upon providing the other Party with written notice of termination if: (i) the other Party performs a material breach to any provision of the Agreement and fails to cure such material breach within thirty (30) calendar days after receipt of written notice of the material breach, or (ii) the other Party becomes insolvent, is subject to voluntary or involuntary bankruptcy, insolvency or similar proceeding or otherwise liquidates or ceases to do business.
17.6 Without prejudice to any other rights and remedies available to it, Pointerpro is entitled to terminate the Agreement immediately, without prior formal notice or court intervention being required and without any compensation being due, in the event that: (i) the Client breaches the terms and conditions of the Hosting Partner or the applicable third party software; (ii) the Client infringes Pointerpro’s Intellectual Property Rights (expressly including the license grant pursuant to article 3 of these Terms and Conditions) or Confidential Information, (iii) the Client has caused Pointerpro reputational damage, or (iv) the Client fails to make an advance payment to Pointerpro as requested by Pointerpo in accordance with article 16.9. of these Terms and Conditions. In the event of termination of the Agreement by Pointerpro on one of the aforementioned grounds, a lump sum compensation of five thousand euros (€ 5.000,00) will be due by the Client to Pointerpro, without prejudice to Pointerpro’s right to claim a higher amount should the actual damage incurred exceed this lump sum compensation.
18. Consequences of Termination
18.1 Upon termination of the Agreement for whatsoever reason: (i) the Client shall promptly pay to Pointerpro all amounts due and payable under this Agreement up to and including the date of expiry of the Initial Term or current Renewal Term; (ii) all licenses granted to the Client shall automatically terminate; (iii) except as required to comply with any applicable legal or accounting record keeping requirement and upon the other Party’s written request, each Party shall return the other Party’s Confidential Information that are in the possession or under the control of that respective Party (or alternatively destroy any copies thereof that cannot be returned and confirm the other Party in writing that such copies have been destroyed).
19. Warranty
19.1 Pointerpro shall provide the Online Software Service and the Services to the best of its abilities, but does in no way whatsoever guarantee that the Online Software Service and/or the Services will serve the exact or specific purpose intended by the Client. The Client acknowledges and agrees that the Online Software Services and Services are provided “as is”.
19.2 Except for the foregoing warranty and to the maximum extent permitted by applicable law, Pointerpro does not make any representations or warranties, express or implied, concerning any matter under this Agreement (including the Online Software Services and Services) and Pointerpro disclaims any representations or warranties, express or implied, including (without limitation) any implied warranties of accuracy or completeness of data, fitness for a particular purpose, merchantability or economic profitability.
20. Limitation of Liability
20.1 Subject to the maximum extent permitted under applicable law and except in case of intent, willful misconduct or gross negligence on part of Pointerpro or its appointees, Pointerpro’s total maximal liability under the Agreement, both in contract as in tort, shall, per event (or series of connected events) and per contract year, not exceed an amount equal to the Subscription- and (to the extent applicable) Services Fee paid during such contract year.
20.2 The Trial User acknowledges and agrees that, subject to the maximum extent permitted under applicable law, Pointerpro has no liability whatsoever under this Agreement in respect of Trial Accounts as Trial Users do not pay any fees.
20.3 Subject to the maximum extent permitted under applicable law and except in case of intent, willful misconduct or gross negligence on part of Pointerpro or its appointees, Pointerpro shall not be liable under the Agreement for any indirect, punitive, special, consequential or similar damages (including damages for loss of profit, lost revenue, loss of business, loss of corruption of data, loss of customers and contracts, loss of goodwill, the cost of procuring replacement goods or services, and reputational damage) whether arising from negligence, breach of contract or of statutory duty or otherwise howsoever.
20.4 Pointerpro shall not be held liable in any way, neither contractually nor extra-contractually, for discontinuing an older release of the Online Software Service or for damages caused by the wrongful (or out of scope) use of the Online Software Service.
20.5 The Parties agree to exclude the extra-contractual liability of Pointerpro’s employees and directors for damages resulting from non-performance of a contractual obligation towards the Client. Within the limits of the applicable law, the Client expressly waives his right to claim compensation for such damage from Pointerpro’s employees and directors.
21. Non-solicitation
21.1 For the Term of this Agreement and for a period of two (2) years thereafter, the Client shall not recruit, nor employ any agents, contractors, employees or representatives (directly or indirectly) employed or contracted by Pointerpro and introduced in connection with the performance of the Agreement, unless expressly agreed to in writing by Pointerpro. In case of breach of this article by the Client, the Client shall pay to Pointerpro an amount equal to six (6) times the monthly gross remuneration paid by Pointerpro to said agent, contractor, employee or representative concerned, without prejudice to Pointerpro’s right to initiate any legal proceedings and/or to claim a higher amount should the actual damage suffered by Pointerpro exceed the aforementioned amount.
22. Miscellaneous
22.1 Entire agreement – The Agreement constitutes the entire agreement and understanding between the Parties with respect to the subject matter hereof and supersedes all prior oral or written agreements, representations or understandings between the Parties relating to the subject matter hereof. No statement, representation, warranty, covenant or agreement of any kind not expressly set forth in the Agreement shall affect, or be used to interpret, change or restrict, the express terms and provisions of the Agreement. The terms and conditions of the Agreement may be modified or amended only by written agreement executed by a duly authorized representative of both Parties hereto.
22.2 Severability – The Parties are convinced that all articles of the Agreement are valid and legally binding in all of their aspects. Is however one or more articles (in whole or partially) void or invalid, this being void or invalid does not affect the validity of the other articles of the Agreement. Articles that are effected by nullity or invalidity, will remain binding to the maximum extent legally allowed. The Parties undertake to replace said articles with valid articles that, to the nearest extent possible, correspond with the intentions of the Parties at the time of conclusion of the Agreement.
22.3 Non-waiver – Any failure or delay by Pointerpro in exercising any right under the Agreement, any single or partial exercise of any right under the Agreement or any partial reaction or absence of reaction by Pointerpro in the event of violation by the Client of one or more of the provisions of this Agreement, shall not operate or be interpreted as a waiver (either express or implied, in whole or in part), nor shall it preclude any further exercise of any such rights.
Any waiver of a right by Pointerpro must be express and in writing. If there is an express written waiver of a right by Pointerpro, following a specific failure by the Client, this waiver cannot be invoked by the client in favor of a new failure, similar to the prior one, or in favor of any other kind of failure/violation.
22.4 Survival – The provisions of the Agreement that are expressly or implicitly intended to survive termination, shall survive expiration or termination of the Agreement, including without limitation, the provisions relating to Intellectual Property Rights, Confidential Information and limitation of liability.
22.5 Assignment – Pointerpro may assign, transfer and/or subcontract the rights and obligations under this Agreement to any third party. The Client is not allowed not assign or otherwise transfer any of its rights or obligations under the Agreement without Pointerpro’s prior written and explicit consent.
22.6 Force Majeure or Change of Circumstances – Neither Party will be responsible or liable for any failure or delay in the performance of its obligations under the Agreement arising out of or caused by a Force Majeure event. The Party claiming Force Majeure shall promptly and in any event no later than forty eight (48) hours after obtaining knowledge of the Force Majeure event (or forty eight hours after the moment on which said Party no longer reasonably can claim not to have been aware of the Force Majeure event), inform the other Party to this effect in writing (including e-mail), explaining its reasons for doing so.
If Force Majeure occurs, Pointerpro may, at its own discretion, without requirement of a prior notice of default or judicial intervention, and with no right of recourse against it: (i) propose a functional equivalent, (ii) temporarily suspend the execution of the Agreement, or (iii) unilaterally and extrajudicially terminate the Agreement if the Agreement cannot be executed for longer than three (3) months because of Force Majeure.
In the event of a Change of Circumstances, Pointerpro may, without giving rise to compensation, suspend performance of its obligations under the Agreement as well as request the Client to renegotiate the Agreement. If the Client refuses negotiation or does not participate in good faith in these renegotiations as well as in the event no agreement is reached within thirty (30) calendar days as from Pointerpro’s written request (may include e-mail) to renegotiate, Pointerpro may at its discretion (i) request the competent court to modify the Agreement or (ii) unilaterally and extrajudicially terminate the Agreement with immediate effect.
22.7 Unilateral Price Reductions and Replacement of Defaulting Party – Parties agree that the sanctions included in articles 5.85 of the Belgian Civil Code regarding the unilateral replacement of a defaulting party (vervanging van schuldenaar) and 5.97 of the Belgian Civil Code regarding unilateral price reductions (eenzijdige prijsvermindering) will not apply to this Agreement.
22.8 Notices – Unless otherwise set forth in the Agreement, any notice under the Agreement can be given by a Party via electronic mail (with confirmation of delivery) to the email address of the other Party mentioned in the Commercial Offer. Parties expressly acknowledge and agree that any such notice constitutes an official and formal notice.
All Notices shall be deemed to have been received by the non-notifying Party (i) on the date of delivery if delivered in person, (ii) upon receipt of a confirmation of delivery of the email, and (iii) three (3) working days following the date of mailing if sent by registered mail.
22.9 Interpretation – For the purposes of the Agreement (unless the context would require otherwise): (i) Any reference to a statute or statutory provision includes a reference to any future version of that statute or statutory provision which may be amended, extended or re-enacted from time to time; (ii) All words in singular include the plural, words referring to a gender include every gender and words referring to ‘persons’ include bodies both corporate and incorporate; (iii) All the headings or captions to the clauses are for ease of reference only and shall not affect the interpretation or construction of the Agreement.
22.10 Relationship between the Parties – The relationship between Pointerpro and Client is that of independent contractors. Nothing in the Agreement is intended or shall be deemed to constitute a partnership, agency, franchising or joint venture relationship between the Parties.
22.11 Publicity – Pointerpro shall have the right to use any trademarks, logos or other marks of the Client (including the Client’s corporate name), as well as any survey of the Client (if publicly available), for client references on Pointerpro’s website, social media announcements and sales presentations. Client reserves the right to object to any such use by Pointerpro and the Parties will, upon notification of objection by the Client, discuss further use by Pointerpro in good faith.
22.12 Applicable law and Competent Court – The Agreement has been drafted and needs to be interpreted in accordance with the laws of Belgium, with the exclusion of any rule of international private law which would lead to applicability of any other laws.
Any dispute regarding the validity, interpretation, and or execution of this Agreement will be subject to a mandatory attempt to mediation between the Parties. Should no amicable solution be found within thirty (30) calendar days from the written notice thereto, the courts of the registered office of Pointerpro will have exclusive jurisdiction.
Annex 1 – Data Processing Agreement
1. About this Data Processing Agreement
1.1 This Data Processor Agreement (the “DPA”) is concluded between Objective 7 BV, with registered office at Prins Boudewijnlaan 218A 2650 Edegem, Belgium, and registered in the Crossroad Bank for Enterprises with enterprise number 0845.741.317 (hereinafter referred to as “Pointerpro”) and the Client (as identified in the relevant Commercial Offer) pursuant to the Agreement between Pointerpro and the Client.
1.2 This DPA forms an integral part of the Agreement between the Parties. In the performance of the Agreement, Pointerpro will receive and process Personal Data for the benefit and on behalf of the Client and in accordance with the instructions and purpose defined by the Client. Parties agree that Pointerpro is the Processor and the Client is the Controller in respect of such Processing of Personal Data related to the Agreement. Parties acknowledge that specific legislation applies to the Processing of Personal Data in relation the Agreement. Such legislation includes, among others, the GDPR (including implementing laws, if applicable) and the Belgian Privacy Act.
1.3 By means of this Data Processor Agreement, Parties wish to lay down their specific agreements in respect to Processing Personal Data within the framework of the Agreement. This Data Processor Agreement supersedes and replaces all previous agreements made in respect of Processing Personal Data and data protection.
2. Definitions
2.1 Capitalized terms used in this DPA shall have the meaning as set out in this section. Terms also defined in the GDPR or any other applicable legislation shall be interpreted in accordance with the meaning given to them in the GDPR or such applicable legislation. Capitalized terms not defined in this DPA shall have the meaning given to them in the Terms and Conditions.
Belgian Privacy Act means the Belgian act of July 30th, 2018 regarding the protection of natural persons in respect of processing of personal data.
Controller or Data Controller means the natural or legal person, public authority, agency or other body which, alone or jointly with others, determines the purposes and means of the Processing of Personal Data (i.e. the Client).
(Personal) Data Breach means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Personal Data transmitted, stored or otherwise processed.
Data Processing Agreement or DPA means this document, setting out the conditions applicable to the Processing of Data in connection with the Agreement.
Data Processing Details means Appendix 1 to this DPA including information such as the purpose, object and nature of Processing and the kind of Personal Data being processed, also including the instructions given by the Controller.
Data Subject a natural person who is identified or identifiable by the Personal Data. an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.
GDPR Regulation (EU) 2016/679 of the European Parliament and of Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation).
Personal Data means any information relating to an identified or identifiable natural person.
Processing means any operation or set of operations which is performed on Personal Data or on sets of Personal Data, whether or not by automated means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.
Processor means a natural or legal person, public authority, agency or other body which processes Personal Data on behalf of the Controller (i.e. Pointerpro).
Sub-processor means a third party subcontractor that is involved in the Processing of Personal Data by the Processor.
Supervisory Authority refers to the independent government body who is responsible for monitoring the application of GDPR.
3. Object of this DPA
3.1 This DPA determines the conditions of the Processing by the Processor, on a self-employed basis, of the Personal Data communicated by or at the initiative of the Controller and in the context of the Agreement. This Processing will exclusively take place for the benefit of the Controller and for the purpose as defined by the Controller.
3.2 The nature and purpose of the Processing, a list and the type of Personal Data as well as the categories of the Data Subjects are detailed below (Data Processing Details).
3.3 The Processor will only process the Personal Data according to the documented instructions of the Controller, and will not use the Personal Data for its own purpose.
3.4 If the Processor is legally obliged to proceed with any Processing of Personal Data, the Processor, unless this would violate applicable mandatory rules, will inform the Controller of such obligation.
4. Compliance with Data Protection Regulations
The Controller and the Processor shall comply with their obligations under applicable legislation and under relevant codes of conduct or standard contractual clauses (if applicable).
5. Term
5.1 This DPA is applicable to every Processing of Personal Data executed in the context of the Agreement.
5.2 This DPA applies as long as the Processor processes Personal Data made available by the Controller in the context of the Agreement. This DPA ends automatically upon termination of the Agreement. The provisions of this DPA that are either expressly or implicitly (given their nature) intended to have effect after termination of the DPA shall survive the end of the Agreement as regards the Personal Data communicated by or at the initiative of the Controller in the context of the Agreement.
6. Technical and organizational measures
6.1 The Processor and Controller offer adequate guarantees with regard to the implementation of appropriate technical and organizational measures so that the Processing complies with GDPR requirements and that the protection of the Data Subject’s rights is guaranteed. Such measures shall also include the measures referred to in article 32 GDPR to ensure an adequate level of security appropriate to the risk.
6.2 Upon request the Processor shall communicate such technical and organizational measures to the Controller. Upon signing the Agreement, the Controller acknowledges those measures to be adequate for the Processing of its Personal Data.
6.3 If the Controller requests specific technical and organizational measures to be implemented by the Processor, to the extend the Processor does not have equivalent measures in place, the Controller shall reimburse the Processor for implementing such measures according to clause 17 below.
7. Records of processing activities
Each Party and, where applicable, their representatives, shall maintain a register of the processing activities under their responsibility. Each such register shall contain at least all legally required data.
8. Storage of Personal Data
8.1 The Processor will not retain any Personal Data longer than as required for Processing of such Personal Data in the context of the Agreement. The Controller will not instruct the Processor to store any Personal Data longer than necessary. The agreed retention period can be found below (Data Processing Details).
8.2 Unless storage of the Personal Data is mandatory under Union or Member State law, the Processor shall, within a reasonable period after the end of the Processing, at the option of the Controller, either erase all Personal Data or return it to the Controller and delete existing copies.
9. Confidentiality
9.1 Only those agents of the Processor who are involved in the Processing of Personal Data may be informed about the Personal Data. The Processor ensures that persons authorized to process the Personal Data are committed to confidentiality by contract or are under an appropriate statutory obligation of confidentiality.
9.2 The Processor may only provide Personal Data to Third Parties with the prior written consent of the Controller.
10. Code of Conduct and Certification
Adherence by the Processor to an approved code of conduct as referred to in Article 40 GDPR, or an approved certification mechanism as referred to in Article 42 GDPR may be used as an element of proof of sufficient guarantees as referred to in GDPR.
11. Data Subject’s rights
11.1 Taking into account the nature of the Processing, the Processor shall use best efforts, by taking appropriate technical and organizational measures, to assist the Controller in the fulfillment of its obligation to respond to requests from Data Subjects.
11.2 For all services performed by the Processor in the context of the treatment of such requests from Data Subjects, the Controller will reimburse the Processor in accordance with clause 17 of this DPA. Such reimbursement by the Controller shall not be due in case the Data Subject is invoking its rights because of a Data Breach proven attributable to the Processor.
12. Duty to notify
12.1 Upon becoming aware of a Personal Data Breach the Processor shall notify the Controller thereof without undue delay.
12.2 At the request of the Controller, the Processor will cooperate with the investigation and elaboration of the measures necessary in case of any Data Breaches.
12.3 The Parties will keep each other informed of any new developments with regard to any Data Breach and of the measures they take to limit its consequences and to prevent the repetition of such Data Breach.
12.4 It is the responsibility of the Controller to report any Data Breach to the Supervisory Authority or the Data Subject, as required.
13. Sub-processing
13.1 The Controller expressly authorizes the Processor to engage Sub-processors for the Processing of Personal Data in the context of this Agreement. The Controller grants a general permission to the Processor to decide with which Sub-processor(s) the Processor cooperates. The Processor shall keep a list of all Sub-processors engaged, which can be consulted by the Controller upon simple request. The Processor will inform the Controller of any intended material changes concerning the addition or replacement of Sub-processors. The Controller can only refuse a Sub-processor proposed by the Processor on the basis of a well-founded justification submitted in writing.
13.2 The Processor will conclude a separate sub-processing agreement with each Sub-processor.
13.3 In such sub-processing agreement, the same data protection obligations as set out in this DPA shall be imposed on the sub-processor.
13.4 In the event the sub-processor fails to fulfil its data protection obligations, the Processor shall remain fully liable to the Controller for the performance of the obligations of that sub-processor, subject to clause 19 below.
14. Transfers of Personal Data
14.1 The Processing of Personal Data will exclusively take place within the EEA, except for Processing by Sub-processors.
14.2 The Processing or transfer of Personal Data outside the EEA can only occur with the specific prior written consent of the Controller and/or in compliance with applicable legislation. The Processor can sign standard contractual clauses, codes of conduct or any other instruments adopted by the European Commission, which ensures that the transfer of Personal Data to a country outside the EEA complies with appropriate safeguards as required by the GDPR.
14.3 Such consent of the Controller is not required when the transfer of Personal Data to countries outside the EEA is mandatory under EU or Member State law provisions.
15. Data Protection Impact Assessment and Prior Consultation
15.1 When a ‘Data Protection Impact Assessment’ or a ‘Prior Consultation’ is required according to Article 35 and 36 GDPR, the Controller shall be responsible to implement such assessment. At the request of the Controller, the Processor will assist in this assessment as well as in the compliance with any required measures.
15.2 The Controller will reimburse the Processor for the Services so rendered in relation to this assessment and the compliance with any required measures in accordance with clause 17 of this DPA.
16. Audit
16.1 Each Party shall allow the other Party and its authorized auditors to perform audits regarding the compliance by a Party with its obligations under this DPA and the applicable legislation in respect of data protection.
16.2 Each Party shall notify the other party of its intention to perform an audit at least one (1) month prior to the date on which the audit will be performed by giving written notice to the other Party.
16.3 Each Party shall use its best efforts to cooperate with those audits and to make available to the other Party all information necessary to prove compliance with the obligations of such Party. A Party shall immediately inform the other Party if, in its opinion, an instruction infringes the applicable legislation.
16.4 Upon the performance of any such audit, the confidentiality obligations of the Parties with respect to Third Parties must be taken into account. Both the Parties and their auditors must keep the information collected in connection with an audit secret and use it exclusively to verify the compliance by the other Party with this DPA and the applicable laws and regulations in respect of data protection.
16.5 The Controller and the Processor and where applicable their representatives, shall cooperate, upon request, with the Supervisory Authority in the performance of its tasks.
16.6 The auditing Party shall reimburse the other Party for the services so rendered in relation to the audit in accordance with clause 17 below.
17. Costs
17.1 The Services to be performed under this DPA for which the Processor may charge the Controller, will be charged on the basis of the hours worked and the applicable standard hourly rates of the Processor. The Processor will invoice these amounts on a monthly basis.
17.2 Payment by the Controller to the Processor for the Services under this DPA will take place in accordance with the provisions of the Agreement.
18. Notice of default
When the Processor fails to comply with its obligations under this DPA, the Controller shall first send a registered notice of default (in accordance with the relevant article of the Agreement). This notice shall clearly mention the defaults that occurred, and, if redress is possible, a proposal of remedial measures and a reasonable term for their implementation.
19. Liability
19.1 The Processor shall only be liable under this DPA if it (i) did not comply with its specific obligations under the GDPR, or (ii) acted outside or in violation of the lawful instructions of the Controller.
19.2 In any case, the limitations of liability as set out in the Agreement are applicable to this DPA and all services provided in respect of this DPA.
20. Other provisions
The provisions of the Agreement concerning (amongst others) amendments, severability, applicable law and jurisdiction are applicable to this DPA.
Annex 2 – Data Processing Details
| Contact details of responsible for data protection and security
|
Stefan Debois
privacy@pointerpro.com |
| Object of Processing
|
Use of the Online Software Service and/or execution and performance of the survey instructed by the Client (as applicable) |
| Legal basis of Processing
|
Execution of the Agreement |
| Purpose and means of Processing
|
Use of the Online Software Service and/or execution and performance of the survey instructed by the Client, including the purpose determined by the Client for which the survey will be executed and performed (as applicable) |
| Category (type) of Personal Data being processed
|
Personal data processed during the use of the Online Software Service and/or Personal data collected and/or indicated by the Client for the purpose of the survey (as applicable) |
| Category (type) of Data Subjects
|
Data subjects that use the Online Software Service and/or data subjects that participate in or to the Client’s survey (as applicable) |
| Category (type) of Recipients
|
The Client |
| Storage Location
|
Data centers of the Hosting Partner as identified in or pursuant to the Agreement |
| Storage Period
|
Until five (5) years after the final use of the Online Software Services |
| Technical and Organizational Measures
|
Detailed overview available upon request in separate document |
| Transfer of Personal Data (outside the EEA)
|
N/A |
| Processor
|
The Hosting Partner as identified in or pursuant to the Agreement |