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Global Data Processing Agreement

The DEFINITIONS

The following expressions shall have the following meanings:

  • "CliqForms” means CLIQ ONLINE PTY LTD of 81-83 Campbell Street, Surry Hills, NSW 2010, Australia.
    "Agent" means CliqForms"
  • “Client” or "Customer" means any person or company that purchases Services from the Agent;
  • “Proposal” means a proposal, application, quotation or other similar object describing the agency Services;
  • “Services” means the agency as described in the Proposal;
  • “Fee” means the monies due to the Agency from the Client for providing the Services;
  • “Intellectual Property Rights” means any patent, trademark, service mark, registered design, copyright, design right, right to or exploit information from a database, database rights, know-how, confidential information or process, any application for any of the above, and any other Intellectual Right in any part of the world whether or not presently existing or applied for;
  • “Terms and Conditions” means the terms and conditions of supply of Services as set out in this document and any subsequent and conditions agreed in writing by the Agent;
  • “Agreement” means the contract between the Agent and the Client for the provision of the Services incorporating these Terms and Conditions;

2 GENERAL

  • These Terms and Conditions shall apply to the Agreement for the supply of Services by the Agent to the Client and shall any other documentation or communication between parties.
  • Any variation to these Terms and Conditions must be agreed in writing by the Agent.
  • These Terms and Conditions shall be attached to any Proposal and signed and returned to the Agent by the Client.
  • Nothing in these Terms and Conditions shall prejudice any condition or warranty, express or implied, or any legal remedy to which the Agent may be entitled in relation to the Services, by virtue of any statute, law or regulation.
  • The Agency acts as a principal at law and not as the agent of the Client in all its dealings with third party suppliers and shall be responsible to such parties for payment of their fees/invoices.
3 PROPOSAL
  • The Proposal is attached to these Terms and Conditions.
  • The Proposal shall remain valid for acceptance for a period of 14 days.
  • The Proposal must be accepted by the Client in its entirety.
  • The Agreement between the Agent and the Client, incorporating these Terms and Conditions, shall only come into force when the Agent confirms acceptance in writing to the Client.
4 SERVICES
  • The Services are as described in the Proposal.
  • Any variation to the Services must be agreed by the Agent in writing.
  • The Services shall commence and on the dates specified on the Proposal unless terminated according to the terms of this Agreement.
  • Dates given for the commencement of the Services are estimates only and not guaranteed. Time for commencement shall be of the essence of the Agreement and the Agent shall not be held liable for any loss, damages, charges or expenses caused directly or indirectly by any delay in the Services.
  • The Client appoints the Agent as a provider of advertising agency services in respect of the Services plus any other brands launched or acquired by the Client which the parties agree should be covered by this Agreement.

5 PRICE AND PAYMENT

  • The Fee is as specified in the Proposal and is inclusive of VAT (if applicable) any other charges as outlined in that document.
  • The terms for payment are as specified in the Proposal.
  • The Client hereby agrees to reimburse the Agent in respect of all reasonable travel, subsistence and courier expenses incurred by the Agent in performing the Services, and in respect of any other reasonably incidental, provided they are approved in advance by the Client.
  • The Client shall pay all reasonable legal fees related to the creation of the Advertising as well as production, licensing and for use and shall pay all other third party costs (including licensing and performer fees) associated with producing the Advertising provided they are approved in advance by the Client.
  • The Client must settle all payments for Services within 7 days from the invoice date.
  • The Agent is entitled to recover all expenses incurred in obtaining payment from the Client where any payment due to the Agent is late.
  • The Client is not entitled to withhold any monies due to the Agent.
  • The Agent is entitled to vary the price to take account of:
  • any additional Services requested by the Client which were not included in the original Proposal;
  • any additional work required to complete the Services which was not anticipated at the time of the Proposal;
  • any reasonable increase in hourly, if applicable; and any variation must be intimated to the Client in writing by the Agent.
6 SUB CONTRACTS
  • The Agent shall monitor all production companies and suppliers to whom work is allocated on a sub-contracting basis to ensure that:
  • all deadlines are met and that all budgets are not exceeded;
  • all necessary consents, clearances and licences are obtained;
  • all necessary consents, clearances and licences are obtained in respect of copyright and any other rights performances, music and all other constituent elements of the advertising as defined in the description of the Services;
  • all artists are properly contracted for, repeats and/or buy-outs.
7 CLIENT OBLIGATIONS
  • The Client agrees to cooperate with the Agent and shall provide any support, information and facilities to the Agent as may be required.
  • The Client agrees to refrain from indirectly recruiting any person employed or engaged by the Agent for the purpose of providing the Services for a period of six months following completion of the Services.
  • The Client shall nominate a named to whom all requests for approval should be sent by the Agent.
  • The Client’s written approval of copy or artwork will be the Agent’s authority to buy production materials and prepare proofs. The Client’s written approval of television, cinema and radio scripts and/or will be the Agent’s authority to enter into production agreements and to engage performers.
  • The Client agrees to fill in the on-boarding form for the set-up of the account within 14 days.
  • The Client agrees to not create multiple cliqforms accounts of the Free pricing tier.
8 AGENT OBLIGATIONS
  • The Agent shall supply the Services as specified in the Proposal.
  • The Agent shall perform the Services with reasonable skill and care and to a reasonable standard and in accordance with recognised codes of practice and statutory obligations.
  • The Agent shall have the authority to any obligations to other employees or subcontractors but undertakes to notify the Client of any significant changes to personnel.
  • The Agent will maintain appropriate in accordance with industry practice.
  • The Agent shall comply with all regulations and statutory obligations regarding the use and storage of information relating to the Client.
  • The Agent will provide exclusive services for digital marketing to IVF clinics within the Czech Republic area.
9 INTELLECTUAL PROPERTY
  • Any Intellectual Property Rights created as a product of the Services shall remain the property of the Agent and/or its.
  • On termination of this Agreement and subject to payment of all monies due to the Agent under it, the Agent shall, in of the payment of ÂŁ1.00, assign absolutely to the Client all intellectual property rights in all advertising created by the Services, to the extent that such intellectual property rights are vested in the Agent.
  • The Client shall provide the Agent with copies of all trademarks and other intellectual property that represents the of the Client which are to be included in the performance of the Services. The Client hereby the Agent a royalty free licence to use, copy and reproduce such trademarks and for the purpose of developing the advertising created by the Services.
  • The Agent will use all reasonable efforts to obtain all copyright and a waiver of moral rights in respect of work acquired from third parties but it cannot undertake that in all cases it will be able to do so. In the event that the Agent is unable to obtain copyright or a waiver of moral rights in respect of such work the shall inform the Client before any appropriate agreement is entered into.
  • The Client agrees that on termination of this agreement the Agent shall be entitled to use the advertising products created by the solely for its own internal and external promotional purposes.
10 CONFIDENTIALITY
  • The parties agree to keep all confidential information in relation to the business of the other confidential during and after the term of the Agreement. This clause 10.1 will not apply to:
  • any information which has been other than through a breach of this Agreement;
  • information in the possession of the recipient party before the disclosure under this Agreement took place;
  • information obtained from a party who is free to disclose it;
  • information which a party is required by law to disclose.
11 TERMINATION
  • The Agreement shall continue until the Services have been provided in terms of the Proposal or any subsequent date as agreed in writing by both parties or until terminated by either party in accordance with these Terms and Conditions.
  • The Client may terminate the Agreement anytime to the end of the current month.
  • The Agent may terminate the Agreement at any point in time.
  • Either party may terminate the Agreement by notice in writing to the other if:
  • the other party commits a material breach of these Terms and Conditions and, in the case of a breach capable of being remedied, fails to remedy it within a reasonable time of being given written notice from the other party to do so; or
  • the other party commits a material of these Terms and Conditions which cannot be remedied under any circumstances; or
  • the other party passes a resolution for winding up (other than for the purpose of solvent amalgamation or reconstruction), or a court of competent jurisdiction makes an order to that effect; or
  • the other party ceases to carry on its business or substantially the whole of its business; or
  • the other party is declared insolvent, or convenes a meeting of or makes or proposes to make any arrangement or composition with its creditors; or a liquidator, receiver, administrative receiver, manager, trustee or similar officer is appointed over any of its assets.
  • In the event of termination the Client must make over to the Agent any payment for work done and expenses incurred up to the date of termination.
  • Any rights to terminate the Agreement shall be without prejudice to any other accrued rights and liabilities of the parties arising in any way out of the Agreement as at the date of termination.
12 STATEMENTS
  • The Client and the Agent agree to:
  • inform each other immediately if any claim, statement or representation in any copy to be published is, or is likely to be defamatory, in breach of copyright, in breach of the terms of any Act or provision of law, or is in any other way unlawful;
  • inform each other without delay if it considers any claim or trade description in any copy is false or misleading in relation to the product or service to be advertised.
13 WARRANTY

Both parties warrant their authority to enter into this Agreement and have obtained all necessary approvals to do so.

14 LIMITATION OF LIABILITY
  • Nothing in these Terms and Conditions shall exclude or limit the liability of the Agent for death or personal injury, however the Agent shall not be liable for any direct loss or damage suffered by the Client or any third party howsoever caused, as a result of any negligence, breach of contract or otherwise in excess of the sum insured under the professional indemnity insurance policy held by the Agent in the insurance year in which the Client’s claim is first notified.
  • The Agent cannot guarantee any follower increase throughout the agreement.
  • The Agent will not be responsible in case Twitter takes action on your account, including filtering your Tweets from search results or suspending your account.
  • As part of the agreement the agent will make all efforts to avoid engagement with profiles who are linked to Pornography, Political Activists, Drugs, Explicit Material, Crime, Violence or similar contents. However, due to the open nature of the Twitter platform engagement with these profiles cannot be entirely avoided.
15 INDEMNITY

The Client shall indemnify the Agent against all claims, costs and expenses which the Agent may incur and which arise directly or indirectly from the Client’s breach of any of its obligations under these Terms and Conditions.

16 FORCE MAJEURE

Neither party shall be liable for any delay or failure to perform any of its obligations if the delay or failure results from events or circumstances outside its reasonable control, including but not limited to acts of God, strikes, lock outs, accidents, war, fire, breakdown of plant or machinery or shortage or unavailability of raw materials from a natural source of supply, and the party shall be entitled to a reasonable extension of its obligations.

17 ASSIGNMENT

The Client shall not be entitled to assign its rights or obligations or delegate its duties under this Agreement without the prior written consent of the Agent.

18 THIRD PARTY RIGHTS

Nothing in these Terms and Conditions intend to or confer any rights on a third party.

19 SEVERANCE

If any term or provision of these Terms and Conditions is held invalid, illegal or unenforceable for any reason by any court of competent jurisdiction such provision shall be severed and the remainder of the provisions hereof shall continue in full force and effect as if these Terms and Conditions had been agreed with the invalid, illegal or unenforceable provision eliminated.

20 WAIVER

The failure by either party to enforce at any time or for any period any one or more of the Terms and Conditions herein shall not be a waiver of them or of the right at any time subsequently to enforce all Terms and Conditions.

21 NOTICES

Any notice to be given by either party to the other may be served by email, fax, personal service or by post to the address of the other party given in the Proposal or such other address as such party may from time to time have communicated to the other in writing, and if sent by email shall unless the contrary is proved be deemed to be received on the day it was sent, if sent by fax shall be deemed to be served on receipt of an error free transmission report, if given by letter shall be deemed to have been served at the time at which the letter was delivered personally or if sent by post shall be deemed to have been delivered in the ordinary course of post.

22 ENTIRE AGREEMENT

These Terms and Conditions supersede any previous agreements, arrangements, documents or other undertakings either written or oral.

23 GOVERNING LAW

These Terms and Conditions shall be governed by and construed in accordance with the law of NSW, Australia and the parties hereby submit to the exclusive jurisdiction of the courts.

CliqForms Global Data Processing Agreement

This Global Data Processing Agreement (“DPA”) forms part of the agreement governing access to and use of the CliqForms Services.

This DPA is entered into between:

CliqOnline Pty Ltd t/a CliqForms
(“CliqForms”, “we”, “us” or “our”)

and

the person or organisation that creates, owns, administers or uses a CliqForms customer account for business or organisational purposes
(“Customer”, “you” or “your”).

1. Electronic acceptance

1.1 How this DPA is accepted

The Customer accepts and agrees to be bound by this DPA when the Customer, or a person acting on its behalf:

  1. creates a CliqForms account and accepts the CliqForms Terms and Conditions;
  2. selects a checkbox, button or other electronic control indicating acceptance of the CliqForms Terms and Conditions or this DPA;
  3. purchases, subscribes to, accesses or uses the Services after being given notice that this DPA applies;
  4. continues using the Services after being notified of an updated version of this DPA; or
  5. otherwise agrees to the Service Agreement incorporating this DPA.

No handwritten, electronic or countersignature is required for this DPA to take effect.

1.2 Incorporation into the Service Agreement

This DPA is incorporated into and forms part of the CliqForms Terms and Conditions and any other written or electronic agreement governing the Customer’s use of the Services.

A reference in the Service Agreement to:

  1. the Terms;
  2. the agreement;
  3. the CliqForms agreement;
  4. the data-processing terms; or
  5. the DPA

includes this Global Data Processing Agreement.

1.3 Authority to bind an organisation

A person who creates, administers, purchases or uses a CliqForms account on behalf of a company, partnership, trust, government body, association or other organisation represents and warrants that:

  1. they have authority to act on behalf of that organisation;
  2. they have authority to accept this DPA on its behalf; and
  3. the organisation agrees to be bound by this DPA.

Where a person does not have that authority, they must not create or administer the account, purchase a subscription or accept this DPA on behalf of the organisation.

1.4 Customer account owner

The person or organisation identified as the account owner, subscriber, purchaser or administrator in CliqForms’ records will be treated as the Customer unless the parties agree otherwise in writing.

Where an account is created using an organisation’s:

  1. business name;
  2. business email domain;
  3. payment method;
  4. billing information; or
  5. other organisational details,

CliqForms may reasonably treat the relevant organisation as the Customer.

1.5 Authorised Users

The Customer may permit its employees, contractors, advisers and other authorised individuals to access the Services as Authorised Users.

The Customer:

  1. is responsible for its Authorised Users;
  2. must ensure that its Authorised Users comply with the Service Agreement and this DPA;
  3. is responsible for managing their permissions and access;
  4. must promptly remove access when it is no longer required; and
  5. remains responsible for all processing instructions given through its account.

An Authorised User does not become a separate Controller or contractual customer merely because they access the Customer’s account.

1.6 Form respondents and other individuals

Individuals who:

  1. complete a form created by a Customer;
  2. sign a document sent by a Customer;
  3. visit a Customer’s landing page;
  4. scan a Customer’s QR code;
  5. provide information to a Customer; or
  6. otherwise interact with Customer content

are not parties to this DPA solely because of that interaction.

For Customer Personal Data collected through the Services, the Customer generally acts as the Controller or equivalent responsible organisation, and CliqForms generally acts as the Processor, Service Provider or equivalent processing organisation.

The Customer is responsible for providing those individuals with any privacy notices, collection notices, consent statements or other information required by Applicable Data Protection Laws.

1.7 Evidence of acceptance

The Customer agrees that CliqForms may maintain electronic records evidencing acceptance of this DPA, including:

  1. the Customer’s account details;
  2. the accepting user’s identity;
  3. the date and time of acceptance;
  4. the IP address and device information associated with acceptance;
  5. the version of the DPA accepted;
  6. the acceptance method; and
  7. relevant account, subscription and login records.

Those electronic records may be used as evidence of the Customer’s acceptance and agreement.

1.8 Opportunity to review

The Customer acknowledges that:

  1. this DPA is made available before or at the time the Customer accepts the Service Agreement;
  2. the Customer has had an opportunity to review this DPA;
  3. the Customer may download or save a copy; and
  4. the Customer must not use the Services if it does not agree to this DPA.

1.9 No requirement for separate execution

This DPA applies automatically where CliqForms processes Customer Personal Data on behalf of the Customer.

The Customer is not required to:

  1. sign a separate paper agreement;
  2. request a countersigned copy;
  3. negotiate individual data-processing terms; or
  4. execute separate regional terms,

unless CliqForms expressly agrees otherwise in writing.

At its discretion, CliqForms may provide a countersigned copy to a Customer with reasonable audit, procurement or regulatory requirements.

2. Scope

This DPA applies whenever CliqForms processes Customer Personal Data on behalf of, or at the direction of, the Customer in connection with the Services.

The parties intend this DPA to provide a consistent global data-processing framework and to satisfy applicable contractual requirements under privacy and data-protection laws worldwide.

Where a jurisdiction imposes additional or different mandatory requirements, the applicable Regional Terms in this DPA apply automatically to the relevant processing.

The remaining provisions and schedules of the CliqForms Global Data Processing Agreement form part of this DPA.

Changes to this DPA

CliqForms may update this DPA where reasonably necessary to:

  1. comply with changes in law or regulatory guidance;
  2. reflect changes to the Services;
  3. update security measures or Subprocessors;
  4. incorporate new international-transfer mechanisms; or
  5. clarify the parties’ obligations.

CliqForms will provide reasonable advance notice of any material change by:

  1. email;
  2. an account notification;
  3. a notification within the Services; or
  4. another reasonable electronic method.

A revised version will state its effective date and version number.

Unless a change is required sooner by law, a material update will take effect on the date stated in the notice.

The Customer’s continued use of the Services after the effective date constitutes acceptance of the updated DPA.

Where a change materially reduces the protection of Customer Personal Data and is not required by law, the Customer may stop using the Services and terminate the affected subscription in accordance with the Service Agreement.

Term

This DPA begins on the earliest date that the Customer:

  1. accepts the CliqForms Terms and Conditions;
  2. creates an account;
  3. purchases or activates a subscription;
  4. first submits Customer Personal Data to the Services; or
  5. otherwise accepts this DPA.

It continues for as long as CliqForms processes Customer Personal Data on behalf of the Customer.

The provisions concerning confidentiality, security, deletion, international transfers, liability and regulatory cooperation survive termination to the extent necessary.

Governing law

Except where Applicable Data Protection Laws, the EU Standard Contractual Clauses, the UK Transfer Addendum or another mandatory transfer mechanism require otherwise, this DPA is governed by the governing law stated in the CliqForms Terms and Conditions.

Where the Terms and Conditions do not specify a governing law, this DPA is governed by the laws of Queensland, Australia.

Subject to mandatory legal rights, the parties submit to the jurisdiction of the courts of Queensland, Australia.

Entire electronic agreement

The Customer agrees that:

  1. this DPA may be entered into electronically;
  2. an electronic acceptance is legally effective;
  3. an electronic record satisfies any requirement that the agreement be in writing, to the extent permitted by law; and
  4. no handwritten signature is required.

The current version of this DPA published by CliqForms, together with CliqForms’ electronic acceptance records, constitutes evidence of the agreement between CliqForms and the Customer.

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