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General Terms And Conditions For Navigator Users
1 The Agreement
1.1 These General Terms and Conditions for Navigator Users (“Terms and Conditions”) apply to each Navigator Order Form entered into by Customer, Simply Biz and ifaDASH, pursuant to which the Customer named on the Navigator Order Form subscribes to Navigator Services or Navigator Plus Services.
1.2 The Customer may accept these Terms and Conditions by either:
1.2.1 accepting them by electronic means (which may include ticking the box indicated on the https://simplybiz.ifadash.com/portal area of the Simply Biz Website); or
1.2.2 signing electronically on an electronic copy or by wet signature on a hard copy of a Navigator Order Form and confirming the incorporation of these Term and Conditions.
1.3 Each Navigator Order Form will form a distinct agreement with ifaDASH that is governed by and incorporates the following (collectively the “ifaDASH Agreement”):
1.3.1 Navigator Order Form; and
1.3.2 these Terms and Conditions, including the Service Level Agreement at Schedule 1 and the Data Processing Agreement at Schedule 2.
1.4 Each Navigator Order Form will additionally form a separate and distinct agreement with Simply Biz that is governed by and incorporates the following (collectively “Navigator Agreement”):
1.4.1 Navigator Order Form; and
1.4.2 Navigator Licence and Use Terms and Conditions (“Navigator Terms”) including the Data Processing Addendum at Schedule 1.
1.5 IfaDASH Services will only be made available to a Customer under this ifaDASH Agreement where Customer also has an unexpired Navigator Agreement.
2.1 This ifaDASH Agreement will commence on the Commencement Date and unless earlier terminated in accordance with these Terms and Conditions, will continue for the Initial Subscription Term and for any Renewal Terms (“Term”).
2.2 The Initial Subscription Term will commence on the Commencement Date. IfaDASH will use commercially reasonable efforts to provide access to the Services from such Commencement Date provided that the Customer has performed its obligations under the Navigator Order Form.
2.3 Unless otherwise stated in the Navigator Order Form or agreed in writing, at the end of the Initial Subscription Term and thereafter at the end of each Renewal Term, all then-current Authorised User subscriptions will be automatically renewed for a further Renewal Term, unless Customer provides Simply Biz with a written non-renewal notice at least ninety (90) days prior to the scheduled renewal date to: navigator@simplybiz.co.uk
2.4 Either party may terminate this ifaDASH Agreement at any time by giving notice in writing to the other party if the other party commits a material breach of this ifaDASH Agreement and such breach is not remediable.
2.5 This ifaDASH Agreement may be immediately terminated upon written notice by a party in the event the other party commits a material breach of this ifaDASH Agreement that remains uncured for sixty (60) days following receipt of written notice thereof, or is subject to an Insolvency Event.
2.6 In the event that Simply Biz terminates the Customer’s Navigator Agreement, this ifaDASH Agreement shall automatically terminate and such termination shall take effect on the same date as the Customer’s Navigator Agreement terminates.
2.7 Upon termination or expiration of this ifaDASH Agreement, all rights granted by ifaDASH under this ifaDASH Agreement, including all rights to use the Services, will terminate, and Customer will stop using the Services.
2.8 During the Term, Customer may access, retrieve and export the Customer Data through the Services. IfaDASH shall not be obliged to provide the Customer with any assistance extracting or recovering Customer Data whether during the Term or after the Termination Date.
2.9 Unless otherwise stated in the Navigator Order Form, if the ifaDASH Agreement is terminated other than by Customer for cause pursuant to either clause 2.4 or clause 2.5, Customer will pay all unpaid Charges in full covering the remainder of the Term.
2.10 Termination or expiration of this ifaDASH Agreement shall not affect any accrued rights and liabilities of either party at any time up to the Termination Date and shall not affect any provision of this ifaDASH Agreement that is expressly or by implication intended to continue beyond termination.
3.1 Subject to the terms and conditions of this ifaDASH Agreement, ifaDASH grants to Customer, exercisable by Authorised Users, a non-exclusive, non-transferable, non-sublicensable right to access and use during the Term the Services solely for Customer’s internal business operations authorised under this ifaDASH Agreement (the “ifaDASH Licence”).
3.2 Additional Authorised User Subscriptions may be provided for the applicable additional Charges, as agreed and as specified in an additional Navigator Order Form or otherwise in writing. Any changes to Authorised Users shall be notified in writing to ifaDASH by Simply Biz
3.3 Support Services will be available for the Services for the duration of the Term, to the extent and in the manner specified in the Service Level Agreement at Schedule 1.
3.4 IfaDASH shall offer to the Customer any Upgrades of the ifaDASH Software, which it develops. If the Upgrade is designed solely to remedy defects in the ifaDASH Software, ifaDASH shall make it available to Customer as part of the Services at no additional charge. In all other cases, ifaDASH shall be entitled to make an additional charge for the Upgrade only if the Customer elects to pay for the Upgrade. IfaDASH may upgrade the ifaDASH Software without notice except where such Upgrades require modification and or upgrades to the Customer’s computer hardware and or software environment. In such instance where Upgrades require modification and or upgrades to the Customer’s PC hardware and or software environment, ifaDASH undertakes to give the Customer 13 weeks’ notice of any such Upgrade.
4 Charges
4.1 Any applicable Charges in relation to the Services will be invoiced by and payable to Simply Biz in accordance with a fully executed Navigator Order Form or as otherwise agreed in writing.
4.2 Unless otherwise stated in the Navigator Order Form or as otherwise agreed in writing, all such invoices will be due and payable within thirty (30) days of the invoice date (“Due Date”).
4.3 All Charges will be paid by Customer to Simply Biz by established direct debit, in pounds sterling and without any deductions, withholdings or set-off.
4.4 Unless otherwise stated in the Navigator Order Form or as otherwise agreed in writing, the Charges may be subject to an increase each year during the Term with 120 days’ written notice from Simply Biz.
4.5 Customer acknowledges that Customer’s Simply Biz Membership provides discounted pricing for the Services and that in the event that Customer ceases to be a Simply Biz Member and continues to receive ifaDASH Services pursuant to a new, direct agreement with ifaDASH, ifaDASH may increase the applicable Charges to its then-current standard rates.
4.6 Any undisputed Charges that are not paid by the Due Date will accrue interest at a rate of one and a half percent (1.5%) per month and be subject to any costs of collection until such payment is received by Simply Biz.
4.7 If Customer fails to pay any such Charges by the Due Date, ifaDASH may, in addition to its other available remedies, suspend the provision of the Services until all past due Charges have been fully paid, or terminate the ifaDASH Agreement if any such Charges are overdue by sixty (60) or more days.
4.8 To dispute any invoiced Charges in good faith, Customer will notify Simply Biz in writing within thirty (30) days of the relevant invoice date.
4.9 Any Charges not subject to a good faith dispute raised within such thirty (30) day period are deemed correct and binding on Customer and Customer waives any claims it may have to dispute such Charges.
4.10 Unless otherwise stated in this ifaDASH Agreement, all Charges are non-cancellable, non-creditable and non-refundable.
4.11 The Charges do not include VAT, and Customer will pay any and all applicable VAT related to the Services and Charges.
5 Customer Responsibilities
5.1 Simply Biz will provide the Customer with user names and passwords or facilitate the Customer to set up user names and passwords, to enable the Customer’s Authorised Users to access the Services. The Customer:
5.1.1 will be responsible for the security and proper use of its user names and passwords and will ensure that these are kept strictly confidential, that each user name and password is only used by the relevant Authorised User and that they are not disclosed to any unauthorised person;
5.1.2 will promptly inform Simply Biz if it has any reason to believe that its user names and/or passwords have or are likely to become known to an unauthorised person or are being or are likely to be used in an unauthorised way;
5.1.3 may change its passwords online, or by contacting Simply Biz and satisfying Simply Biz’s reasonable security checks.
5.2 Customer will ensure that only Authorised Users use or access the Services via the access methods provided or approved by ifaDASH and that such access and use is at all times in accordance with the terms of this ifaDASH Agreement.
5.3 Customer will be responsible and liable for all acts and omissions of all its Authorised Users and any person using an Authorised User’s access credentials or account for any Service. Customer acknowledges and agrees that Authorised Users’ compliance with the Terms and Conditions herein is a condition to their access to and continued use of the Services and failure to comply may result in suspension or termination of this ifaDASH Agreement, subject to reasonable notice under the circumstances.
5.4 Customer is responsible for Authorised Users’ compliance with Applicable Laws and for actions and omissions by Authorised Users that would constitute a breach of this ifaDASH Agreement if taken by the Customer. In the event the Customer or any Authorised User breaches the terms of this ifaDASH Agreement or uses the Services in a manner that poses an imminent and material security risk to ifaDASH or other customers, ifaDASH may immediately suspend access to the applicable Services, including suspending or withdrawing the Customer’s user names and/or passwords, provided that, ifaDASH will promptly restore access to the Services once the breach or risk has been resolved.
5.5 Customer will ensure that the number of Authorised Users who use the Services does not exceed the number of Authorised User subscriptions that Customer has purchased for the Services at any time and the Authorised Users do not share their access credentials or accounts for any Service. Customer shall promptly notify Simply Biz of and take mitigating steps when (i) there is any change in an Authorised User’s eligibility to use the Services or (ii) any suspected or unauthorised access to or use of the Services takes place.
5.6 Customer will be solely responsible for ensuring its hardware, software, systems, networks, internet connections, and other information technology infrastructure (“Customer Systems”) are up-to-date and compatible with the Services.
5.7 The Services may bundle or otherwise include certain third party services, as may be further specified in the Navigator Order Form or as otherwise agreed in writing. Customer agrees to and will ensure Authorised Users comply with applicable third party terms. Unless otherwise stated in the ifaDASH Agreement, Customer will be solely responsible for its and its Authorised Users’ use of the third party services, obtaining and maintaining all necessary licenses, permissions and consents to use any third party services, and ensuring that Customer Systems are compatible and interoperable with all third party services.
5.8 Customer will promptly notify Simply Biz in writing where Customer becomes aware that the Services have been or are likely to be used or accessed by someone other than an Authorised User or are being used or accessed in a manner not authorised by this ifaDASH Agreement.
5.9 Customer will ensure that any and all obligations set out in the Navigator Order Form are satisfied in a timely manner. Customer acknowledges and agrees that notwithstanding the Commencement Date, ifaDASH may not provide the Services until after the Customer has satisfied any and all Customer obligations set out in the Navigator Order Form and that unless otherwise expressly agreed in writing by ifaDASH, ifaDASH will not be obligated to expend additional resources in order to mitigate any such failure by Customer to satisfy its obligation set out in the Navigator Order Form, in a timely manner.
5.10 Customer will provide ifaDASH with reasonable access to Customer Systems and data as may be reasonably required by ifaDASH to provide the Services.
5.11 If Customer provides any express written instructions to ifaDASH with respect to this ifaDASH Agreement, Customer will be solely responsible for all acts and omissions to the extent ifaDASH acts pursuant to such instructions.
5.12 Customer will be responsible for compliance with all Applicable Laws in relation to its use of the Services and the ifaDASH Agreement.
5.13 Customer will take no action in violation of, or that would cause ifaDASH to be in violation of, any Applicable Laws, including any anti-corruption laws, and Customer will maintain policies, procedures and controls that are reasonably designed to prevent and detect violations of anti-money laundering laws.
5.14 Customer will have sole authority and responsibility for all legal, tax, financial, investment, regulatory or other professional advice, opinions, or recommendations delivered by or on behalf of Customer through the Services. IfaDASH will in no way be liable or responsible for any such advice, opinions, or recommendations rendered by or on behalf of Customer.
5.15 Customer shall not and shall not permit Authorised Users or any third party to: (i) modify or create derivative works from or based on the Services or any components thereof, (ii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any source code of the Services, (iii) use the Services for the benefit of a third party other than the Authorised Users (iv) use manual process, automatic device or application or extraction tool to access, monitor, use, download, retrieve, index, extract, scrape, or data mine the Services, (v) infringe or misappropriate ifaDASH’s Intellectual Property Rights or otherwise attempt to defeat, bypass, or circumvent any other protections implemented by ifaDASH with respect to its Intellectual Property Rights or any components of the Services, (vi) bypass or breach any security device or protection used in the Services, (vii) input, upload, transmit, activate or otherwise provide to or through the Services any malware or harmful code or virus, (viii) damage, destroy, deface, disrupt, disable, impair, interfere with, or otherwise disrupt, impede, overburden or harm in any manner the Services or ifaDASH's provision of products and services, (ix) remove, delete, alter, or obscure any Intellectual Property Rights, attribution notices, confidentiality notices or disclaimers or (x) access the Services for monitoring availability, performance of any technical security integrity review, penetration test, load test, denial-of-service simulation or vulnerability scan, performance or functionality, or for any other benchmarking or competitive purpose, or (xi) otherwise access or use the Services in a manner and for purposes not permitted under this ifaDASH Agreement or in violation of Applicable Laws. Any breach by the Customer of this clause 5.15 shall be deemed a material breach of this ifaDASH Agreement which is not remediable.
5.16 Customer acknowledges and agrees that ifaDASH may continually monitor by automated or other means the use of the Services, including to verify that such use is in compliance with this ifaDASH Agreement.
6.1 In relation to Customer, ifaDASH is a technology services provider only, and ifaDASH is not responsible for soliciting clients on behalf of Customer. Nothing in this ifaDASH Agreement will be construed as ifaDASH providing, and ifaDASH will not be responsible for providing an investment advisory service or services in any fiduciary capacity.
6.2 Any assurances relating to the Services complying with or satisfying any obligations, requirements or needs of Customer, any Authorised User or other person are as expressly stated in this ifaDASH Agreement.
6.3 Customer’s subscription to the Services is not contingent on, and Customer has not relied upon, any oral or public written comments made by ifaDASH regarding the Services, including with respect to any future functionality or features. Unless otherwise stated in the Navigator Order Form, or as otherwise agreed in writing, ifaDASH will not be required to customise, enhance, upgrade or modify the Services.
6.4 Except as otherwise expressly stated in this ifaDASH Agreement and to the maximum extent permitted by Applicable Laws: (a) the Services and third party services are provided on an “as is”, “as available” and “with all faults” basis, and Customer agrees that it may not be free of interruptions, periods of unavailability, inaccuracies, errors, or other defects or security issues; (b) all express, implied, statutory or other representations, warranties, conditions, terms, undertakings, guarantees and obligations (including all warranties arising from course of dealing, usage or trade practice) relating to the provision of the Services and third party services, including any implied terms relating to merchantability, quality, fitness for any particular purpose, non-infringement or ability to achieve a particular result are hereby specifically disclaimed and excluded; and (c) use of the Services and third party services is at Customer’s own risk. IfaDASH is under no obligation to control, monitor or correct any third party services or to provide, make available, support or ensure the continued availability or security of any third party services, whether through the Services or otherwise.
7.1 Subject to the terms and conditions of this ifaDASH Agreement, ifaDASH will provide the Services in accordance with the Service Level Agreement, in a professional and workmanlike manner.
7.2 If Customer notifies ifaDASH in writing of a breach of clause 7.1, ifaDASH will correct, re-perform, repair or replace the impacted Service in accordance with the Service Level Agreement. Except as otherwise expressly stated in this ifaDASH Agreement and to the maximum extent permitted by Applicable Laws, this clause sets out Customer’s sole remedy for any breach of clause 7.1.
7.3 The Customer acknowledges and accepts that ifaDASH does not give any warranty or representation and does not accept any liability (howsoever arising) in relation to:
7.3.1 any Third Party Software;
7.3.2 the ifaDASH Software meeting the Customer’s individual needs or business requirements, whether or not such needs or requirements have been communicated to ifaDASH;
7.3.3 the ifaDASH Software operating in a manner which is uninterrupted or free from minor errors or defects that do not materially affect performance; or
7.3.4 the ifaDASH Software being compatible with any other software or with any particular hardware or equipment.
7.4 Unless otherwise provided in this ifaDASH Agreement and subject to clause 7.5, all warranties, conditions, terms, undertakings or obligations whether express or implied and including any implied terms relating to quality, fitness for any particular purpose, reasonable care and skill or ability to achieve a particular result are excluded to the fullest extent allowed by Applicable Laws.
7.5 Each party represents and warrants that: (a) it is duly organised, validly existing and in good standing under Applicable Laws; (b) it has the organisational and legal power and authority to enter into, validly execute and deliver this ifaDASH Agreement as binding on behalf of itself and to perform its obligations under this ifaDASH Agreement; (c) it is properly licensed and has obtained any approvals, licenses, consents and permissions necessary to perform its obligations and operate its business under this ifaDASH Agreement; (d) this ifaDASH Agreement is enforceable in accordance with its terms; (e) it has not violated any Applicable Laws, been convicted of any offence or been subject to any sanctions relating to a violation of Applicable Laws or been subject to any investigation, inquiry or enforcement proceeding by a regulatory organisation; (f) it is not owned or controlled by any person that is the subject or target of any trade, economic, or financial sanctions, or located, organised or resident in a country or territory that is, or whose government is, the subject or target of any trade, economic or financial sanctions; and (g) no person employed or engaged by itself in relation to this ifaDASH Agreement is or will be, during the Term, a Government Official and each party will promptly notify the other party if any such person becomes a Government Official during the Term.
8 Intellectual Property Rights
8.1 Each party represents and warrants to the other that:
8.1.1 it owns or is licensed to use all Intellectual Property Rights which it uses or exploits in the performance of its obligations under this ifaDASH Agreement;
8.1.2 it has obtained all necessary permissions, consents, waivers and licences required from any third party (including all necessary or appropriate regulatory consents) in order for it to lawfully perform its obligations under this ifaDASH Agreement; and
8.1.3 the use by the other party in accordance with this ifaDASH Agreement of any Intellectual Property Rights licensed by it in the performance of its obligations under this ifaDASH Agreement shall not breach the rights, including any Intellectual Property Rights, of any third party.
8.2 As between ifaDASH and Customer, all rights (including all Intellectual Property Rights) in and to the Services, any components thereof and the information supplied as part of the Service shall at all times be and remain the sole and exclusive property of ifaDASH (or its licensors).
8.3 As between the Parties, all right, title and interest, including all Intellectual Property Rights in Customer Data are and shall remain the sole and exclusive property of Customer. Customer grants to ifaDASH a limited, non-exclusive, non-transferable, non-sublicensable right and licence, during the Term to use modify, copy, process, display and prepare derivative works of such Customer Data in order to deliver the Services as applicable. Customer has obtained and will continue to obtain all rights, licences and permissions necessary for ifaDASH to use the Customer Data in the provision of Services as contemplated hereunder, including to transmit Customer Data to and share it with Simply Biz or other third parties pursuant to Customer’s instructions or otherwise in accordance with the terms of this ifaDASH Agreement.
8.4 The Customer acknowledges that ifaDASH may receive Customer Data both directly from the Customer and captured by ifaDASH in the course of providing Services.
8.5 ifaDASH shall indemnify the Customer against all losses, damages, costs and expenses (including reasonable legal fees) incurred as a result of any claim by a third party that the Customer’s use of the Services in accordance with this ifaDASH Agreement infringes the Intellectual Property Rights of that third party (“IPR Claim”) provided that the Customer:
8.5.1 promptly notifies ifaDASH in writing of any IPR Claim of which it has notice; and
8.5.2 does not make any admission as to liability or agree to any settlement of or compromise any IPR Claim without the prior written consent of ifaDASH.
8.6 ifaDASH will, at its request and own expense, be entitled to conduct and/or settle all negotiations and/or litigation arising from any IPR Claim and the Customer shall give ifaDASH all reasonable assistance in connection with those negotiations and/or litigation. Any settlement reached by ifaDASH shall not rely upon the Customer paying any contribution towards any losses, damages, costs or expenses.
8.7 If any IPR Claim is made, ifaDASH may at its own discretion and expense:
8.7.1 procure for the Customer the right to continue using the Services;
8.7.2 modify or replace the infringing part of the Services (without causing any material diminution to the functionality or performance of the Services) so as to avoid the infringement or alleged infringement;
8.7.3 terminate that part of the Services which relates to the infringement (or potential infringement) and return any sums paid by the Customer in advance for that part of the Services in full and final settlement of any claims in respect thereof; or
8.7.4 if none of the options in clauses 8.7.1 to 8.7.3 is reasonably practicable, terminate this ifaDASH Agreement and return any sums paid by the Customer to ifaDASH in advance for the affected Services, in full and final settlement.
8.8 The indemnity given under clause 8.5 will not apply to any infringement arising from any use of the Services other than in accordance with this ifaDASH Agreement.
9.1 Each party agrees that both during and after the Term it shall treat as and keep confidential:
9.1.1 any and all information of a confidential or sensitive nature (whether or not marked as such) which may come into its possession or into the possession of any of its Personnel or Representatives as a result of or in connection with this ifaDASH Agreement relating to the other party (the “Confidential Information”); and
9.1.2 any and all information which has been and which may be derived or obtained from any Confidential Information.
9.2 The obligations of confidentiality in this clause 9 shall not prevent disclosure of Confidential Information which: (a) is in or enters the public domain other than by breach of this clause 9; (b) is obtained from a third party without breach of this clause 9 or any other duty of confidence; (c) is authorised for release by written consent of the other party; and/or (d) is required to be disclosed by a government body or court of competent jurisdiction or relevant regulatory body or authority or by operation of law.
9.3 Each party agrees to take all reasonable steps to ensure that all Confidential Information relating or belonging to, or provided to it by, the other party is protected from unauthorised use or disclosure, theft, loss or damage (whether as a result of criminal damage, negligence, Force Majeure Event or otherwise) applying no lesser security measures to it than to its own confidential information. Each party shall use the Confidential Information received by the other party solely for the purposes authorised by this ifaDASH Agreement.
9.4 The party receiving the Confidential Information shall limit access to Confidential Information to those of its Personnel and Representatives who reasonably and necessarily require access to the same for the performance of the receiving party’s obligations under this ifaDASH Agreement and shall ensure that each such Personnel and Representative is aware of the confidential nature of the Confidential Information and complies with the obligations set out in this ifaDASH Agreement as if named as a party hereto.
9.5 The receiving party shall promptly notify the disclosing party in writing of any unauthorised use or disclosure of any Confidential Information.
10.1 Nothing in this ifaDASH Agreement will exclude or limit either party's liability in respect of: (a) death or personal injury caused by the negligence of that party; (b) fraud (including fraudulent misrepresentation); or (c) any liability which may not otherwise be lawfully excluded or limited.
10.2 Subject always to clauses 10.1 and 10.3, neither party shall be liable to the other in contract, tort (including negligence and breach of statutory duty) or otherwise for: (a) any loss of revenue, profit, business, anticipated savings, goodwill, reputation, contract, data, loss or damage to equipment, corruption of data, corruption of software or systems; use of equipment or process or any wasted management time; or (b) any indirect, economic, special or consequential loss whatsoever.
10.3 Clause 10.2 shall not prevent ifaDASH recovering: (a) the Charges; or (b) damages calculated on the basis of amounts due but not paid by the Customer as a result of a breach of this ifaDASH Agreement by the Customer.
10.4 Subject always to clauses 10.1 and 10.3 and any indemnity expressly provided in this ifaDASH Agreement, ifaDASH's liability to the Customer in contract, tort (including negligence and breach of statutory duty) or otherwise shall be limited to five thousand pounds Sterling (£5,000) per year, regardless of the number of events giving rise to liability.
10.5 Neither party shall be liable for any failure or delay in performing its obligations under this ifaDASH Agreement if and to the extent that such failure or delay is the result of a Force Majeure Event. A party whose performance is or may be affected by a Force Majeure Event shall inform the other party as soon as reasonably practicable after becoming aware of the Force Majeure Event.
11.1 Save that nothing in this clause 11 will prevent a party from taking any actions under this ifaDASH Agreement or otherwise in relation to the recovery of debts, in the first instance, disputes or differences which may arise between the parties in connection with other matters under this ifaDASH Agreement shall be dealt with and determined as follows:
11.1.1 each party shall nominate a representative who will be authorised to deal with the management, negotiation and settlement of any dispute or difference arising under or in connection with this ifaDASH Agreement (“Nominated Representative”). Each party may change the identity of its Nominated Representative at any time during the term of this ifaDASH Agreement or in the absence of its Nominated Representative appoint another representative (“Alternative Nominated Representative”);
11.1.2 each party shall refer any dispute or difference that arises under or in connection with this ifaDASH Agreement to its Nominated Representative (or Alternative Nominated Representative) appointed in accordance with clause 11.1.1, who shall be responsible for the escalation of the dispute within that party’s organisation and shall notify the other party’s Nominated Representative (or Alternative Nominated Representative) in writing of the reason for the dispute or difference. Any such notifications shall include a summary of the salient details of the relevant dispute or difference (“Dispute Notice”);
11.1.3 the Nominated Representatives shall meet within seven (7) days of receipt of the Dispute Notice from the relevant Nominated Representative (or Alternative Nominated Representative) in order to agree a resolution or action(s) required by each party in order to resolve the dispute or difference;
11.1.4 if any dispute or difference has not been settled and/or a course of action for its settlement has not been agreed within twenty-one (21) days of the date of the Dispute Notice, each Nominated Representative (or Alternative Nominated Representative) shall procure that an alternative senior representative (“Alternative Senior Representative”) shall meet with the Alternative Senior Representative of the other party in order to agree to a resolution of such dispute or difference on one separate, further occasion. The parties shall procure that any such meeting takes place as soon as reasonably practicable, taking into account the timescale in which the matter in dispute or difference should be resolved so as not to impede the performance of this ifaDASH Agreement; and
11.1.5 if the dispute or difference, considered by the Alternative Senior Representatives is not resolved to the satisfaction of both the parties within fourteen (14) days of it being referred to them, the dispute or difference may be referred by either party to the courts of England under clause 14.
11.2 All periods specified in clause 11.1 shall be extendable by written agreement of the parties.
12.1 Notices under this ifaDASH Agreement shall not be valid unless in writing and delivered personally, or sent to a party by first class recorded delivery post. Notices to the Customer shall be sent to the address provided by the Customer at the time of sign-up or on the Navigator Order Form. Notices to ifaDASH should be sent to its registered office address.
12.2 Either party may change its notice details by serving notice on the other party of the change in accordance with this clause 12.
12.3 In the absence of earlier receipt, and save as provided below, any notice delivered under this ifaDASH Agreement shall be deemed to have been duly delivered as follows:
12.3.1 if delivered personally, on delivery; or
12.3.2 if sent by first class recorded delivery post, at 9.30am on the second Business Day after the date of posting, provided that any notice delivered under this ifaDASH Agreement on a day which is not a Business Day or at any time after 5.30pm on a Business Day shall be deemed to be delivered at 9.30am on the next Business Day.
12.4 This clause does not apply to notices given in legal proceedings or alternative dispute resolution proceedings.
12.5 Nothing in this clause 12 shall prevent the use of e-mail for day-to-day communication between the parties, or for matters not requiring formal notice.
13.1 This ifaDASH Agreement constitutes the entire agreement between the parties and supersedes all previous agreements, understandings and arrangements between them in respect of its subject matter, whether in writing or oral.
13.2 Each party acknowledges that it has not entered into this ifaDASH Agreement in reliance on, and shall have no remedies in respect of, any representation or warranty that is not expressly set out in this ifaDASH Agreement.
13.3 No variation of this ifaDASH Agreement shall be valid or effective unless it is in writing, refers to this ifaDASH Agreement and is duly signed or executed by, or on behalf of, each party.
13.4 IfaDASH may at any time assign, sub-contract, transfer, mortgage, charge, declare a trust of or deal in any other manner with any or all of its rights or obligations under this ifaDASH Agreement, provided that it gives prior written notice to the Customer.
13.5 The Customer shall not assign, transfer, sub-licence, mortgage, charge, declare a trust of or deal in any other manner with any or all of its rights or obligations under this ifaDASH Agreement, in whole or in part, without ifaDASH’s prior written consent.
13.6 Each party shall pay all sums that it owes to the other party under this ifaDASH Agreement without any set-off, counterclaim, deduction or withholding of any kind, save as may be required by law.
13.7 The parties are independent and are not partners or principal and agent and this ifaDASH Agreement does not establish any joint venture, trust, fiduciary or other relationship between them, other than the contractual relationship expressly provided for in it. Neither party shall have, nor shall represent that it has, any authority to make any commitments on the other party’s behalf.
13.8 If any provision of this ifaDASH Agreement (or part of any provision) is or becomes illegal, invalid or unenforceable, the legality, validity and enforceability of any other provision of this ifaDASH Agreement shall not be affected.
13.9 If any provision of this ifaDASH Agreement (or part of any provision) is or becomes illegal, invalid or unenforceable but would be legal, valid and enforceable if some part of it was deleted or modified, the provision or part-provision in question shall apply with such deletions or modifications as may be necessary to make the provision legal, valid and enforceable. In the event of such deletion or modification, the parties shall negotiate in good faith in order to agree the terms of a mutually acceptable alternative provision which must be agreed in writing.
13.10 No failure, delay or omission by either party in exercising any right, power or remedy provided by law or under this ifaDASH Agreement shall operate as a waiver of that right, power or remedy, nor shall it preclude or restrict any future exercise of that or any other right, power or remedy.
13.11 No single or partial exercise of any right, power or remedy provided by law or under this ifaDASH Agreement shall prevent any future exercise of it or the exercise of any other right, power or remedy.
13.12 A waiver of any term, provision, condition or breach of this ifaDASH Agreement shall only be effective if given in writing and signed by the waiving party, and then only in the instance and for the purpose for which it is given.
13.13 This ifaDASH Agreement and any part of it, may be accepted electronically by Customer ticking the relevant box on a specified area of the Simply Biz Website. The Navigator Order Form may also be executed and delivered by electronic signature, wet signature or email in any number of counterparts, each of which shall be an original, but all of which together (including reproductions by photocopy or scan) shall constitute one instrument and be deemed delivery of an original.
13.14 Each party shall comply with all Applicable Laws and shall maintain such authorisations and approvals as required from time to time to perform their obligations under or in connection with this ifaDASH Agreement.
13.15 A person who is not a party to this ifaDASH Agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any of its provisions.
14 Governing law and Jurisdiction
14.1 This ifaDASH Agreement and any dispute or claim arising out of, or in connection with it, its subject matter or formation (including non-contractual disputes or claims) shall be governed by, and construed in accordance with, the laws of England and Wales.
14.2 The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of, or in connection with, this ifaDASH Agreement, its subject matter or formation (including non-contractual disputes or claims).
15 Definitions and interpretation
15.1 In this ifaDASH Agreement:
“Additional Authorised User” means an individual connected to the Customer who, in accordance with an agreed Navigator Order Form or otherwise agreed in writing, is additionally granted access to the Services as an Authorised User;
“Applicable Laws” means all binding laws, legislation, acts, statutes, statutory instruments, regulations, bylaws, orders, or directions or guidance from a government, regulatory organization or similar authority which have the force of law whether local, national, international or otherwise existing from time to time, in each case which are applicable to this ifaDASH Agreement;
“Application” means the ifaDASH Dashboard;
“Appointed Representative” means an appointed representative which has an agreement with a Principal which permits the Appointed Representative to carry on regulated activities under Principal’s authorisation and the Principal has confirmed that it will take responsibility for the actions of the Appointed Representative;
"Authorised User" means an individual who is authorised by the Customer to use the Services, and Customer has set up or requested Simply Biz to set up a user name and password. Customer’s Authorised Users may include its Personnel and Appointed Representatives, subject to any further restrictions that may be set out in the Navigator Order Form, Navigator Terms, or in these Terms and Conditions;
"Business Day" means a day other than a Saturday, Sunday or bank or public holiday in England;
“Charges” means any ifaDASH applicable charges to the Customer for access to and use of the Services by the Customer’s Authorised Users pursuant to the relevant Navigator Order Form or otherwise agreed in writing and which charges may be increased from time to time;
"Commencement Date" means the date on which the Customer accepts the Terms and Conditions in accordance with clause 1.2 above
"Confidential Information" has the meaning set out in clause 9.1;
“Customer” means the Legal Entity which enters into the ifaDASH Agreement and which is stated on the Navigator Order Form;
“Customer Data” means any and all data, content and information, including personal data, entered, uploaded, submitted, shared, posted, displayed, transmitted on or via the Services by Customer or by any of its Authorised Users;
“Data Processing Agreement” means the data processing agreement set out at Schedule 2, which may be amended from time to time and which is incorporated herein by reference;
"Data Protection Legislation" all applicable data protection and privacy legislation in force from time to time in the UK including the Data Protection Act 2018 and UK GDPR; the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended and any legislation amending, supplementing or replacing the above at any time during the Term;
“End Customer” means a customer of the Customer/Authorised User;
“FCA” means the Financial Conduct Authority or any regulatory body which succeeds or replaces it;
“Force Majeure Event” means any act of God, war, insurrection, riot, civil commotion, act or threat of terrorism, lightning, earthquake, fire, flood, storm, or extreme weather condition, theft, malicious damage, strike, lockout, industrial dispute (whether affecting the workforce of a party and/or any other person), breakdown or failure of equipment or machinery, inability to obtain essential supplies, services or materials, failure or default of a supplier, third party licensor or sub-contractor of the relevant party, failure of any telecommunications network, equipment or provider, denial of service attack and event or circumstance to the extent it is beyond the reasonable control of the relevant party;
“Hosting Services Provider” means the provider of hosting services for the ifaDASH Software;
“ICO” means the Information Commissioner’s Office;
“ifaDASH” means Newdez Limited;
"IfaDASH Software" means the proprietary software of IfaDASH which powers Navigator services, including any Updates or Upgrades made available by IfaDASH under this ifaDASH Agreement;
“Initial Subscription Term” means a period of twelve (12) months starting on the Commencement Date;
“Insolvency Event” means any corporate action, legal proceedings or other procedure or step, other than as part of a solvent re-organization, restructuring or merger of the group of companies, including: (a) where a party stops or threatens to stop trading; (b) the appointment of a receiver, administrator, liquidator, compulsory manager or similar officer over any of the assets or business of a party; (c) a composition, compromise, assignment or arrangement with any creditor; (d) the suspension of payments, a moratorium of any indebtedness, winding-up, dissolution or administration by way of voluntary arrangement, scheme of arrangement or otherwise; and (e) any events or circumstances analogous to the foregoing in any applicable jurisdiction;
"Intellectual Property Rights" means any and all copyright, rights in inventions, patents, know-how, trade secrets, trademarks and trade names, service marks, design rights, rights in get-up, database rights and rights in data, utility models, domain names and all similar rights and, in each case: (a) whether registered or not; (b) including any applications to protect or register such rights; (c) including all renewals and extensions of such rights or applications; (d) whether vested, contingent or future; and (e) wherever existing;
“Legal Entity” means a body corporate, association, partnership, firm, trust, organisation, sole trader or joint venture;
“Navigator Order Form” means any Simply Biz form relating to Navigator, whether in paper or online format which includes inter alia details of the Customer, the Navigator Services, Authorised Users, any applicable Charges, and Customer’s acceptance of these Terms and Conditions and the Navigator Terms and which Simply Biz forms include the forms titled “Navigator Application Form” and “Navigator Customer Form”;
“Normal Business Hours” means 9:00am to 5:00pm on Business Days;
“Personnel” means in respect of a party, its officers, directors, and employees;
“Platform” means the environment provided by the Hosting Services Provider on which the Application is hosted;
“Principal” means a firm which has been granted FCA permission directly to carry out one or more regulated activities, which is responsible for its own actions and the actions of any and all Appointed Representatives with which it has an agreement permitting those Appointed Representatives to carry on regulated activities under Principal’s authorisation;
“Renewal Term” means a period of twelve (12) months during the Term, starting on the day following expiry of the Initial Subscription Term and (if any) each successive period of twelve (12) months during the Term of this ifaDASH Agreement, starting on the day following expiry of the last such Renewal Term;
“Representative” means in respect of a party, its Personnel, consultants, professional advisers, agents and sub-contractors and in respect of the Customer may also include any of its Appointed Representatives; and “Representative” means any of them;
“Service Level Agreement” means the service level agreement set out at Schedule 1, which may be amended from time to time;
“Services” means the ifaDASH services provided inter alia by the Application and ifaDASH Software pursuant to the ifaDASH Licence as provided in clause 3.1, which enable the Customer and Customer’s Authorised Users to amongst other things carry out business monitoring, forecasting and planning for the Customer’s financial advisory business;
“Simply Biz” means Simply Biz Services Limited;
“Simply Biz Member” means a member firm of Simply Biz and “Membership” shall interpreted accordingly;
“Simply Biz Website” means the following: https://www.simplybiz.co.uk
“Simply Biz Software” means the Simply Biz compliance system software known as “Navigator” as may be updated and/or replaced from time to time and which is powered by ifaDASH Software;
"Software" means the IfaDASH Software and Third Party Software;
“Termination Date” means the date on which this ifaDASH Agreement terminates for whatever reason;
"Third Party Software" means any third party software identified in connection with this ifaDASH Agreement, including Simply Biz Software, together with any other software program which is not IfaDASH Software but which is supplied to the Customer by IfaDASH under this ifaDASH Agreement or any ancillary or Support Agreement;
“UK GDPR” means the retained EU law version of the General Data Protection Regulation (EU) 2016/679) (“GDPR”) as defined in section 3(10) of the Data Protection Act 2018;
"Update" means an ifaDASH software maintenance update, patch or bug-fix which does not constitute an Upgrade;
"Upgrade" means a version or release of software intended to have new or improved functionality or designated by ifaDASH as an upgrade; and
"VAT" means Value Added Tax as defined under the Value Added Tax Act 1994 (as amended).
15.2 In this ifaDASH Agreement:
15.2.1 a reference to this ifaDASH Agreement includes its schedules;
15.2.2 References to headings in this ifaDASH Agreement are included for convenience only and shall have no effect on interpretation;
15.2.3 References to clauses are to the clauses of these Terms and Conditions.
15.2.4 References to any other agreement or document are to such agreement or document as varied, assigned or novated from time to time.
15.2.5 References to “in writing” or “written” include e-mail.
15.2.6 Unless the context otherwise requires references to the singular include the plural and vice versa and references to any gender include every gender.
15.2.7 Any words following the words “include”, “includes”, “including”, “in particular” or any similar words or expressions will be construed without limitation and accordingly will not limit the meaning of the words preceding them.
15.2.8 References to any statute or statutory provision will include any subordinate legislation made under it and will be construed as references to such statute, statutory provision and/or subordinate legislation as modified, amended, extended, consolidated, re-enacted and/or replaced and in force from time to time.
SERVICE LEVEL AGREEMENT
1. Outline
ifaDASH will make the Application available to the Customer.
2. The Application
ifaDASH will:
• proactively monitor Application integrity, inform the Customer of any problems with Application integrity, agree with the Customer any remedial action necessary to restore data integrity and carry out the agreed remedial action in accordance with agreed deadlines, although such deadlines will be targets only and time to remediate will not be of the essence. The remedial action will be carried out at no additional charge unless it is necessary as a result of any act or omission of the Customer;
• identify processes initiated by Customer's Authorised Users which may have a detrimental effect on the operation of the Application and take any reasonable actions necessary to protect the operational integrity of the Application, including stopping the processes;
• use reasonable endeavours to notify the Customer of any relevant Upgrades and service packs that are designed to remedy defects in the Application or to enhance functionality and service and that ifaDASH is intending to install. IfaDASH may notify the Customer by posting a notice on the Application website or the ifaDASH website or emailing the Customer's authorised representative;
• where practical, agree with the Customer a suitable time to install Upgrades and service packs, where they are designed to remedy defects; and
• install the relevant Upgrades and service packs at the agreed time where they are designed to remedy defects.
3. The Platform
ifaDASH will:
• take out, maintain and manage hardware and operating system software maintenance agreements for the Platform with reputable third parties;
• provide scheduled maintenance for the Platform and will use reasonable endeavours to schedule scheduled maintenance outside Normal Business Hours and give to the Customer such notice as is reasonably practicable of such scheduled maintenance;
• provide first line investigation of Platform faults;
• use its reasonable endeavours to manage its relationship with the Hosting Services Provider who will provide second line support for the Platform; and
• use reasonable endeavours to notify the Customer of any relevant Upgrades and service packs made available to ifaDASH by the supplier of the Platform operating system software. IfaDASH may notify the Customer by posting a notice on the Application website or the ifaDASH website or emailing the Customer's authorised representative.
4. Backup and restoration
ifaDASH will use reasonable endeavours to:
• ensure appropriate data backup agents on the Platform are completed at least weekly (daily backups will take place in most cases);
• configure the data backup agent to carry out the backups of data and file systems;
• make additional backups as may be agreed with the Customer and subject to payment of additional agreed charges;
• in the event of a system failure, restore the Application using the backups referred to above, using all reasonable endeavours to perform the restore within one Business Day;
• ensure 24x7x365 monitoring is completed by the Hosting Services Provider; and
• maintain a log of restore requests.
5. Firewall
ifaDASH will use its reasonable endeavours to:
• ensure a firewall that meets the appropriate standards is installed and maintained with appropriate firewall security protection is working effectively on the Platform;
• ensure that any identified known types of urgent security breaches are managed appropriately; and
• co-operate with the Customer's third party penetration testing at the Customer's request, at an agreed time and at an agreed additional charge.
6. Virus management
ifaDASH will use its reasonable endeavours to:
• ensure that appropriate antivirus software is installed on the Platform to ensure that uploaded files are scanned before use and prior to distribution;
• check on a daily basis whether updates for the antivirus software have been released;
• update the antivirus software with updates released by the software supplier within a reasonable period; and
• notify the Customer as soon as reasonably practicable, if an active virus infection is discovered.
7. Technical Support
• The technical support services will be made available to Customer via Simply Biz during any Business Day, excluding scheduled outages;
• ifaDASH will endeavour to respond promptly to any technical support queries from Simply Biz; and
• ifaDASH shall only be responsible for remedying defects within its control in relation to the Services.
8. Customer’s Obligations
The Customer shall:
• in the first instance direct any and all correspondence for ifaDASH regarding service levels under this Schedule 1, to Simply Biz;
• provide a browser that meets ifaDASH’s reasonable specification, as notified to the Customer from time to time;
• configure the browser in accordance with ifaDASH’s reasonable instructions, as notified to the Customer from time to time;
• not modify the Applications or the Platform;
• not remove any monitoring tools used by ifaDASH or its sub-contractors;
• not take any actions that it knows would or would be likely to materially reduce the effectiveness of the Services and not permit others to do so on its behalf;
• instruct ifaDASH if it becomes aware of any acts or omissions by the Customer, its Authorised Users or third parties which could affect data integrity;
• ensure that a comprehensive and up-to-date and appropriate anti-virus software is used; and
• notify ifaDASH immediately if an active virus infection is discovered.
SCHEDULE 2
DATA PROCESSING AGREEMENT
This Data Processing Agreement (“DPA”) is supplemental to and is incorporated by reference into the ifaDASH Agreement between ifaDASH and Customer. The purpose of this DPA is to establish the legal basis for the processing of Customer Personal Data by ifaDASH and for certain transfers of Personal Data from Customer to ifaDASH.
Unless otherwise set forth below, capitalized terms not in this DPA shall have the meaning set out in the Terms and Conditions. For the purposes of this DPA, “Controller”, “Processor”, “Data Subject”, “Personal Data” and “Processing” (and cognate terms) shall have the meanings given to them in Article 4 of the UK GDPR.
In the event of a conflict between the provisions of this DPA and the provisions of the Terms and Conditions, the provisions of the DPA shall prevail.
1 Roles of the Parties
1.1 For the purposes of the UK GDPR and any other Data Protection Legislation, Customer is the Controller of Customer Personal Data and ifaDASH is the Processor of such data.
1.2 IfaDASH shall comply with its obligations as a Processor under applicable Data Protection Legislation and shall immediately notify the Customer if it makes a determination that it can no longer fulfil such obligations.
2 Specification of the Data Processing
2.1 Instructions for Data Processing - ifaDASH will only process Customer Personal Data in accordance with the ifaDASH Agreement, to the extent necessary to provide the Services to Customer and fulfil Customer’s instructions, provided in electronic or written form (referred to collectively as “in writing”) or, if provided verbally, confirmed in writing.
2.2 Scope of Processing - Processing outside the scope of this DPA or the ifaDASH Agreement will require prior written agreement between Customer and ifaDASH on additional instructions for Processing. Should ifaDASH reasonably believe that a specific Processing activity beyond the scope of Customer’s instructions is required to comply with a legal obligation that ifaDASH is subject to, ifaDASH shall inform Customer and seek explicit authorisation from Customer before undertaking such Processing. IfaDASH will never process the Personal Data in a manner inconsistent with Customer instructions. IfaDASH shall promptly notify Customer, if, in its opinion, any instruction violates Data Protection Legislation.
2.3 Scope, Purpose and Duration of the Processing - Personal Data which ifaDASH may Process under the ifaDASH Agreement includes the Data Subject’s name and contact details, which may include address, e-mail address and telephone number. Data Subjects will be Customer, Authorised Users and End Customers. For the avoidance of doubt in respect of End Customers, only names will be Processed, no contact details or other identifying information. IfaDASH will Process Personal Data for the duration of the ifaDASH Agreement.
2.4 IfaDASH shall maintain records of processing carried out in respect of Customer Personal Data as required by Data Protection Legislation.
3 Sub-Processors
3.1 IfaDASH shall not appoint a sub-processor without the Customer's consent and in the event that the Customer does provide such consent, ifaDASH will ensure that such sub-processor is bound by terms similar to those of this DPA as it applies to ifaDASH hereunder and ifaDASH shall be responsible for any breach by such sub-processor of any of the obligations under this DPA.
4 International Transfers of Personal Data
4.1 ifaDASH will not transfer Customer Data outside the UK or European Economic Area (“EEA”).
5.1 ifaDASH shall treat all Personal Data as Confidential Information, adhere to the confidentiality obligations set out in the ifaDASH Agreement and termination or expiration of the ifaDASH Agreement shall not discharge ifaDASH from its confidentiality obligations. IfaDASH shall not disclose Customer Personal Data to any Data Subject or to a third party other than at the request of the Customer, save as otherwise permitted under the ifaDASH Agreement.
5.2 IfaDASH shall limit access to Customer Personal Data to its Personnel or other Representatives who have a business need to have access to such Customer Personal Data to provide the Services. IfaDASH Personnel and Representatives shall be committed to protect the confidentiality and security of Customer Personal Data in accordance with the provisions of this DPA and the ifaDASH Agreement. IfaDASH shall ensure that all its Personnel and Representatives are bound by industry standard confidentiality obligations which include keeping Customer Personal Data confidential.
6 Data Security and Data Breaches
6.1 ifaDASH shall take appropriate technical and organisational measures against the unauthorised or unlawful processing of Customer Data, and against the accidental loss or destruction of, or damage to Customer Data. IfaDASH will evaluate the security measures implemented on an ongoing basis and may, from time to time modify the technical and organizational measures to ensure adequate protection of the Customer Personal Data considering the advancement of technology and new threats.
6.2 Customer agrees that, without limiting ifaDASH’s obligations under this DPA and the ifaDASH Agreement, Customer is responsible for its use of the Services, including (a) making appropriate use of the Services to maintain a level of security appropriate to the risk in respect of Customer Personal Data; (b) securing the account authentication credentials, systems and devices Customer uses to access the Services; (c) securing Customer’s systems and devices that ifaDASH uses to provide the Services; (d) backing up Customer Personal Data; (e) obtaining any required consents from Data Subjects for the Processing of Customer Personal Data; and (f) limiting the transfer to Personal Data that is strictly necessary for ifaDASH to provide the Services for which Customer has contracted.
6.3 In the event ifaDASH discovers a personal data breach (a “Data Breach”) (as defined in applicable Data Protection Legislation) affecting Customer Personal Data, ifaDASH will inform Customer of the Data Breach without undue delay, and no later than within seventy-two (72) hours of ifaDASH’s discovery of such Data Breach.
6.4 IfaDASH will investigate and work to remediate the Data Breach and cooperate with Customer in Customer’s handling of the matter, including any investigation, reporting or other obligations required by applicable Data Protection Legislation.
6.5 The parties agree to co-operate and provide immediate reasonable assistance, including, without limitation documentation as is necessary to each other to facilitate the handling of any Data Breach in an expeditious and compliant manner.
7 Assistance, Compliance and Complaints
7.1 Each party will reasonably assist the other party in complying with all Data Protection Legislation applicable in relation to this DPA and the ifaDASH Agreement.
7.2 IfaDASH shall co-operate with the Customer's reasonable requests for ifaDASH to demonstrate its compliance with its obligations under this DPA, including, making available to the Customer, information necessary to demonstrate such compliance upon request, without undue delay.
7.3 In the event that ifaDASH receives any complaint, notice or communication (from either the ICO or a Data Subject) which relates directly to the processing of Customer Data or to the Customer’s compliance with Data Protection Legislation, ifaDASH shall notify the Customer without undue delay and it shall provide the Customer and the ICO (if applicable) with reasonable co-operation and assistance in relation to any such complaint, notice or communication.
8.1 ifaDASH shall promptly comply with any reasonable request from the Customer requiring ifaDASH to amend, transfer or delete Customer Personal Data.
8.2 IfaDASH shall promptly notify Customer if it receives a request, related to Customer Personal Data, to exercise rights provided to Data Subjects in applicable Data Protection Legislation, including but not limited to requests for access, correction, or deletion.
8.3 IfaDASH shall not respond directly to the Data Subject nor act on the request unless expressly authorised in writing by Customer to do so and will provide Customer with assistance to fulfil such requests as required by applicable Data Protections Legislation.
9 Breach of DPA
9.1 Any breach of a party’s obligations under this DPA shall be considered a material breach for the purposes of the ifaDASH Agreement.
10 Indemnity
10.1 Each party undertakes to indemnify the other party and to hold the other party harmless from any costs (including, without limitation, legal and other professional costs), charges, damages, claims, compensation paid to a Data Subject (including, without limitation compensation to protect goodwill and ex gratia payments), penalties, demands, expenses or losses (all calculated on a full indemnity basis and in each case whether or not arising from any investigation by, or imposed by a supervisory authority) which it has caused to the other party as a result of its breach of any of the provisions of this DPA.
10.2 Indemnification hereunder is contingent upon:
10.2.1 the party to be indemnified (the “Indemnified Party”) promptly notifying the other party (the “Indemnifying Party”) of a claim;
10.2.2 the Indemnifying Party having sole control of the defence and settlement of any such claim; and
10.2.3 the Indemnified Party providing co- operation and assistance to the Indemnifying Party in defence of such claim within 48 hours of being notified of the claim by the Indemnifying Party.
11 Retention and Deletion of Personal Data
11.1 Subject to clause 11.2 below, IfaDASH shall promptly and in any event within no later than ninety (90) days of the date of expiration or termination of the ifaDASH Agreement (or within such shorter timeframe as may be required by the ifaDASH Agreement) delete and destroy and procure the deletion and destruction of all copies of Customer Personal Data held by ifaDASH or any sub-processors.
11.2 IfaDASH may retain Customer Personal Data to the extent required by Applicable Laws only to the extent and for such period as required by such Applicable Laws, and provided that ifaDASH shall ensure the confidentiality of all such Customer Personal Data in accordance with this DPA and the ifaDASH Agreement and shall ensure that it is only Processed as necessary for the purpose(s) specified in such Applicable Laws requiring its storage and for no other purpose.
11.3 On Customer’s written request, ifaDASH shall provide written certification to Customer that it has fully complied with the foregoing obligations promptly upon their fulfilment.