Contractual Framework Documents

Master Services Agreement

SmartFocus 
Master Services Agreement

Our Contract is made up of the Statement of Work (SOW) and this SmartFocus Master Services Agreement. This Contract sets out the agreement between you, our Client, and SmartFocus for the SmartFocus Professional Services that you have purchased, as set out in the SOW signed between us.  

1. OUR SERVICES AND RESPONSIBILITIES

1.1. Provision of Service. SmartFocus will provide the Professional Services that are described in the SOW (under “Scope”) in order to deliver the Deliverables. We will provide our Professional Services to you in accordance with the warranties set out in clause 8 below.
1.2. Milestones. SmartFocus will use all reasonable endeavours to meet the Milestones applicable to us, as set out in the SOW. These Milestones are estimates only and time for performance by SmartFocus will not be of the essence of this Contract. 
1.3. Use of subcontractors. SmartFocus may use subcontractors to perform its obligations under this Contract. Where SmartFocus subcontracts any of its obligations, SmartFocus will remain responsible to you for the obligations and SmartFocus will ensure that these subcontractors will be bound by the same obligations that apply to SmartFocus under this Contract.

2. YOUR RESPONSIBILITIES

2.1. Client Responsibilities. You will perform your obligations set out in the SOW under “Pre-requisites - Client Responsibilities” and promptly provide any other reasonable assistance, information and decision-making that SmartFocus reasonably requires in order to start to provide the Professional Services to you. 
2.2. Milestones. You will use all reasonable endeavours to meet the Milestones applicable to you, as set out in the SOW. Our Fees are calculated on the assumption that you will meet your performance commitments in order to allow SmartFocus to meet the Milestones applicable to us. If SmartFocus’ performance is prevented or delayed by your act or omission (or your agents or representatives), then without prejudice to any other right or remedy we may have, SmartFocus may at its option: (a) extend the time to perform our obligations equal to the delay caused by the you; or (b) suspend all performance and release our resources until you have met the Milestones applicable to you and we agree a date for re-starting the project. In any event, all Fees remain due and payable in accordance with this Contract.
2.3. Acceptance. Where you are required to accept any Professional Services delivered to you, you must do so (or not) within ten (10) working days, failing which the Professional Services will be deemed accepted by you. 
2.4. Final Acceptance. At completion of the Professional Services, you will be required to provide final sign-off and acceptance (or not) within 10 working days, failing which the Professional Services will be deemed to have been accepted and the SOW will be deemed completed.

3. PROJECT LEADS

3.1. Appointment of Project Leads. Each party will designate in the SOW a single point of contact within its organisation to manage the project (Project Lead). The Project Leads will communicate as necessary to manage the Professional Services to be performed under the SOW. 
3.2. Authority of Project Leads. Each party’s Project Leads will have authority to contractually bind that party on all matters relating to the SOW.

4. FEES AND PAYMENTS

4.1. Fees. You will pay SmartFocus for Professional Services at the rates set out in the applicable SOW (Fees). Unless otherwise agreed in the SOW, the Fees will be invoiced in total on the Start Date of the SOW and are due within 30 days after the date of the invoice, without any deductions or offsets. Any Fees that are unpaid as of the date of termination or expiration will be immediately due and payable. 
4.2. Expenses. The Fees set out in the SOW do not include any expenses. You will pay for all reasonable travel and hotel accommodation expenses, and any other out of pocket expenses properly and reasonably incurred by SmartFocus in connection with the SOW. Such expenses will be charged to you at cost and will be payable by you monthly in arrears, following submission of the relevant invoice. 
4.3. Fee Increases. SmartFocus reserves the right to increase our standard Rate Card no more frequently than once every 12 months, with effect from the end of the Initial Term, provided that the increase is no higher than the percentage increase in the Retail Prices Index in the preceding 12-month period.
4.4. Disputes. If you believe, in good faith, that SmartFocus has incorrectly invoiced you, you must contact SmartFocus within 30 days of the invoice date, specifying the error. Unless you have notified SmartFocus within this time, you will reimburse SmartFocus for our reasonable collection costs. You will pay the undisputed portions of our invoice as required by this Contract.
4.5. Failure to Pay. If you fail to pay any amount due under this Contract, SmartFocus will send you a reminder notice. If you fail to pay within 14 days of the date of the reminder notice, SmartFocus, may terminate the SOW or suspend the provision of the Professional Services. SmartFocus may charge interest on overdue fees, at a rate of 1% per month or the maximum rate permitted by applicable law, from the due date until the date that the overdue amount (plus interest) is paid in full. 
4.6. Taxes. All Fees are exclusive of VAT and other similar taxes, which, if applicable, will be added to the invoice at the rate prescribed by law.

5. OWNERSHIP AND LICENCES

5.1. Client Materials. Any Client materials provided by you to SmartFocus for use in the course of performing Professional Services (Client Materials) will be used by SmartFocus solely to perform the Professional Services. You will continue to own the Client Materials and all Intellectual Property Rights in them. 
5.2. SmartFocus Materials. Except for Client Materials, all Intellectual Property Rights in the Deliverables and the pre-existing materials in relation to the Professional Services will be owned by SmartFocus or its licensors.
5.3. Licence. Effective only upon being paid all Fees and expenses associated with the Professional Services, SmartFocus grants to you a non-exclusive, non-sublicensable, non-transferable and royalty-free licence to make reasonable use of the Deliverables for its own internal business purposes and to facilitate your use of SmartFocus' other Services. Upon termination of this Contract, for any reason, and/or written notice from SmartFocus this licence will automatically terminate.

6. CHANGE CONTROL

6.1. Any change to a signed SOW must be proposed in writing in the form set out in Schedule 2 (Change Order) and will only take effect when the Change Order has been signed by both parties, regardless of whether there is commercial impact to either party. The Change Order must set out the proposed changes and the effect that those changes will have on the:

(a) Scope;
(b) Deliverables;
(c) Milestones;
(d) Fees; and
(e) Any other relevant terms of the SOW.

6.2. If either party wants to make a change, it must provide a draft Change Order to the other party, providing as much detail as reasonable of the proposed changes, including the timing. 
6.3. If both parties agree to a Change Order, both parties will sign it and the Change Order will amend the relevant signed SOW. If the parties are unable to agree a Change Order, either party may escalate the disagreement in accordance with clause 11 (Escalation).
6.4. SmartFocus may charge for the time spent on preparing and negotiating Change Orders on a time and materials basis at our daily rates specified in the SOW.

7. DATA AND DATA RETENTION

7.1. For Professional Services, you will not provide SmartFocus with access to any personal data unless specifically agreed to in the SOW. If SmartFocus is processing personal data on your behalf, each of us will comply with the Data Processing Agreement signed between the parties, which is incorporated into this Contract by reference.

8. WARRANTIES AND DISCLAIMERS

8.1. SmartFocus Warranties. SmartFocus warrants that the Professional Services will be performed using reasonable care and skill. You must notify SmartFocus in writing of any breach of this warranty within five (5) working days of delivery of non-conforming Professional Services. When SmartFocus has received your notice, we will use commercially reasonable efforts to re-perform the Professional Services in conformance with these warranty requirements, or if SmartFocus considers this not to be commercially reasonable, then SmartFocus may terminate the affected Professional Services and will provide a refund to you of the prorated amount of fees for the unperformed and non-conforming Professional Services.  This clause 8.1 sets out the Client’s exclusive remedies and SmartFocus’ sole liability for a breach of this warranty.
8.2. Disclaimer.  Except for the express warranties stated in this clause 8 (Warranties and Disclaimers), SmartFocus: (a) does not provide any additional representation or warranty of any kind -- whether express, implied or statutory -- as to any matter whatsoever; (b) does not provide support and maintenance for any Deliverables; (c) disclaims all implied warranties, including satisfactory quality, fitness for a particular purpose and non-infringement. 

9. LIABILITY

9.1. Nothing in this Contract excludes or limits either party’s liability for: (a) death or personal injury caused by its negligence; (b) fraudulent misrepresentation; (c) in respect of the Client, to pay the Fees; or (d) any other liability which may not lawfully be excluded or limited.
9.2. Subject to clause 9.1, neither party will be liable (whether from breach of contract, tort (including negligence), breach of statutory duty or otherwise) arising under or in connection with this Contract for:

(a) loss of profits;
(b) loss of sales or business;
(c) loss of agreements or contracts;
(d) loss of anticipated savings; 
(e) loss of or damage to goodwill;
(f) loss of use or corruption of software, data or information; and
(g) any indirect or consequential loss.

9.3. Subject to clauses 9.1 and 9.2, each party's maximum liability arising out of or relating to this Contract or its subject matter (whether from breach of contract, tort (including negligence), breach of statutory duty or otherwise) is limited to an amount equal to the total of the Fees payable by the Client under this Contract in the twelve (12) months prior to the date on which the claim arose. 

10. TERM AND TERMINATION

10.1. Term. This Contract commences on the Start Date and continues until the completion of all SOWs entered into (Term), unless terminated earlier under this Contract.  
10.2. Termination for Cause. Either party may, on written notice to the other party, immediately terminate this Contract or any SOW, or at SmartFocus’ discretion, suspend provision of all or part of the Professional Services, if the other party:

(a) Material Breach. materially and/or persistently breaches any term of this Contract and fails to remedy such breach (if capable of remedy) within thirty (30) days of being given notice to do so; or
(b) Insolvency. becomes insolvent, makes composition with its creditors, has a receiver or administrator of its undertaking or the whole or a substantial part of its assets appointed, or  an order is made, or an effective resolution is passed, for its administration, receivership, liquidation, winding-up or other similar process, or has any distress, execution or other process levied or enforced against the whole or a substantial part of its assets (which is not discharged, paid out, withdrawn or removed within twenty eight (28) days), or is subject to any proceedings which are equivalent or substantially similar to any of the foregoing under any applicable jurisdiction, or ceases to trade or threatens to do so.

10.3. Effect of Termination

(a) Termination for Material Breach. If this Contract is terminated by SmartFocus for the Client’s material / persistent breach under clause 10.2(a), the Client will pay to SmartFocus an amount equal to the Fees that would otherwise be due for the remainder of the Term, together with any other amounts which are due to SmartFocus pursuant to the terms of this Contract, without prejudice to SmartFocus’ other rights and remedies.
(b) Termination or Expiration. Upon termination of this Contract for any reason whatsoever: (i) SmartFocus will immediately cease to provide the Professional Services; and (ii) all amounts payable to SmartFocus by you will become immediately due and owing.
(c) Survival.  The termination of this Contract will not: (i) prejudice any accrued rights or liabilities of either party as at the date of termination; or (ii) affect any provisions of this Contract which by their nature survive termination or expiration, including clauses entitled Ownership and Licences, Confidentiality, Liability, Effect of Termination, Waiver, Severance, Order of Precedence, Escalation, Governing Law and Jurisdiction, all of which will survive termination.

11. ESCALATION

11.1. If a dispute arises out of or in connection with this Contract, or the performance, validity or enforceability of it (Dispute), then the parties will follow this escalation procedure:

(a) A written notice of the Dispute in the form set out in Schedule 3 (Dispute Notice) must be given to the other party, setting out the full details, together with relevant supporting documents;
(b) The Project Leads of each party will attempt in good faith to resolve the Dispute;
(c) If the Project Leads are unable to resolve the Dispute within 14 days of receiving the Dispute Notice, the Dispute will be referred to the appropriate Senior Manager of each party who will attempt in good faith to resolve it; and 
(d) If the Senior Managers are unable to resolve the Dispute within 14 days of it being referred to them, the parties will attempt to settle it by mediation in accordance with the CEDR Model Mediation Procedure. Unless otherwise agreed between us, the mediator will be nominated by CEDR. To initiate the mediation, a party must serve notice in writing in the form set out in Schedule 4 (Mediation Notice) to the other party to the Dispute, requesting a mediation. A copy of the Mediation Notice should be sent to CEDR. The mediation will start not later than 14 days after the date of the Mediation Notice. 
(e) If the Dispute is not resolved within 60 days after service of the ADR notice, the Dispute will be finally resolved by the courts of England and Wales in accordance with clause 12.10.

12. GENERAL

12.1. Export Laws. Client warrants that it is not located in, under the control of, or a national or resident of an embargoed country or a prohibited end user under applicable export control laws and regulations.
12.2. Force Majeure. Neither party will be liable to the other for any breach of this Contract which arises because of circumstances which are beyond the defaulting party’s reasonable control (including, acts of god, terrorism, fire, flood, war, labour disputes, governmental action, change of law, failure of third-party providers, interruption or failure of  the Internet or any network, utility failures or power outages, but will not include shortage or lack of available funds), provided it promptly notifies the other party of such circumstances. If performance has been adversely affected or prevented for more than ninety (90) days, the party whose performance is not affected may terminate this Contract immediately by written notice to the other party.
12.3. Confidentiality. Information which is secret or otherwise not publicly available, including pricing under this Contract, commercial, financial, marketing or technical information, know-how, trade secrets or business methods, in all cases whether disclosed orally or in writing and provided by one party to the other in connection with this Contract before or after the Start Date is confidential and will be treated as such by the receiving party (Confidential Information). Use of Confidential Information by the receiving party must be solely for the purpose of observing and performing its obligations under this Contract. Confidential Information must not be disclosed to any third party without the written consent of the disclosing party,  except  where  required  to  do  so  by  applicable  law  or  any competent regulatory body, court, tribunal, or other body of competent jurisdiction.
12.4. Publicity. Neither party will use the name or branding of the other party in publicity, advertising, or similar activity, without the prior written consent of the other, except that SmartFocus may use Client's name and branding on our website or in customer listings as part of our marketing efforts, in accordance with any branding guidelines provided.
12.5. Assignment. You may not sub-license, assign or transfer any of its rights or obligations under this Contract without the prior written consent of SmartFocus. SmartFocus may assign or transfer any of its rights and obligations under this Contract at its discretion as part of a group reorganisation or trade sale.
12.6. Notice. Any notice given under this Contract must be in writing by email to the following addresses (or addresses notified in writing by either party): to SmartFocus: notice@smartfocus.com ; and to Customer: at the Client’s email address stated on the SOW. 
12.7. Modification and Waiver. This Contract (including the SOW and any Data Processing Agreement) may not be varied or amended except in writing signed by both parties. The waiver by either party of any breach of any provisions of this Contract does not waive any other breach. . The parties acknowledge that this Agreement may need to be updated when the UK leaves the European Union and either party may notify the other of what changes may be necessary, to be agreed. 
12.8. Severance. If any provision of this Contract is held invalid or unenforceable, the remainder of the provision and this Contract will continue in full force and effect. 
12.9. Third Party Rights. Save as expressly set out in this Contract, a person who is not a party to 
12.10. this Contract or a permitted assignee has no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Contract.
12.11. Entire Agreement. This Contract sets out the final, complete and exclusive agreement between the parties regarding the Professional Services provided under this Contract. It cancels and supersedes all previous agreements between the parties relating to such subject matter. No other representations or terms will apply or form part of this Contract.
12.12. Governing Law and Jurisdiction. This Contract and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation will be governed by and construed in accordance with the law of England and Wales. Each party irrevocably agrees that the courts of England and Wales will have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this agreement or its subject matter or formation.
12.13. Counterparts. This Contract may be executed in one or more counterparts, each of which will be deemed an original, but all of which together will constitute the same agreement.
12.14. Order of Precedence. If there is any conflict between the documents, the order of precedence is set out below in descending order of control: (a) the SOW; (b) the Data Processing Agreement; and (c) the SmartFocus Master Services Agreement.

13. DEFINITIONS AND INTERPRETATION

Intellectual Property Rights: all copyright and related rights, patents, rights to inventions, logos, trademarks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection.
Professional Services: the professional services provided by SmartFocus as set out in the SOW.
Rate Card: our rates set out in Appendix 1 to the SOW.
Retail Prices Index:  the Retail Prices Index as published by the Office for National Statistics from time to time, or failing such publication, such other index as the parties may agree most closely resembles such index.
The word "including", “include”, “in particular”, “for example” or similar expressions will be read as providing a non-exhaustive list.
Capitalised terms used and not defined in this Contract have the meanings given to them in the Sales Order.

The parties have read and agree to this Contract.

SCHEDULE 1
STATEMENT OF WORK (SOW)


The parties have read and agree to the terms of this Statement of Work and the SmartFocus Master Services Agreement attached.

Signed for and on behalf of SMARTFOCUS                        
Name of Director:                        
Date:                                    
Signature:

Signed for and on behalf of CLIENT                        
Name of Director:                        
Date:        
Signature:


SCHEDULE 2
CHANGE ORDER TEMPLATE

CHANGE ORDER NAME OF PROPOSER:
DATE:
DESCRIPTION OF SCOPE OF PROPOSED CHANGE:
DESCRIPTION OF IMPACT ON:

  • DELIVERABLES
  • MILESTONES
  • FEES
  • OTHER TIMING
  • ANY OTHER RELEVANT IMPACT

Signatures

This Change Request Form is subject to the terms of the SmartFocus Master Services Agreement located at http://www.smartfocus.com/en/contractual-framework-documents. The parties have read the terms of this Change Request Form and sign below as confirmation of their acceptance of the terms and conditions of this Contract.

The Effective Date of this Change Request Form will be the date of last signature by the parties.

Signed for and on behalf of SMARTFOCUS                        
Name of Director:                        
Date:                                    
Signature
:

Signed for and on behalf of CLIENT                        
Name of Director:                        
Date:        
Signature:

SCHEDULE 3
DISPUTE NOTICE TEMPLATE

DISPUTE NOTCE NAME: CONTACT DETAILS: DATE: DESCRIPTION OF DISPUTE:

RELEVANT SUPPORTING DOCUMENTS / CORRESPONDENCE:

Signed for and on behalf of [SmartFocus / Client]:
Name of Director:                                    
Date:                                    
Signature:     
                           

Software Services Agreement

SmartFocus 
Software Services Agreement
Marketing Agent

Our Contract is made up of the Sales Order and the SmartFocus Software Services Agreement. This Contract sets out the agreement between you, our Client, and SmartFocus for the SmartFocus Software Services that you have purchased, as set out in the Sales Order signed between us.  

1. OUR SERVICES AND RESPONSIBILITIES

1.1. Provision of Service. SmartFocus will provide the SmartFocus Software Services to you using reasonable care and skill and in accordance with the warranties set out in clause 7 below.
1.2. Right to Use.  SmartFocus provides to you the right to use the SmartFocus Software Services described in the Sales Order. This is a limited right that is non-exclusive, non-transferrable and non-sublicensable and allows you to access and use SmartFocus Software Services during the Term solely for your internal business purposes and for the purpose of providing marketing services to your Business Clients (unless expressly stated otherwise in the Sales Order). 
1.3. Service Levels. SmartFocus will meet the service levels set out in the attached Service Level Agreement. 
1.4. Use of subcontractors. SmartFocus may use subcontractors to perform some of its obligations under this Contract. Where SmartFocus subcontracts any of its obligations, SmartFocus will remain responsible to the Client for obligations and SmartFocus will ensure that these subcontractors will be bound by the same obligations that apply to SmartFocus under this Contract.

2. YOUR RESPONSIBILITIES

2.1. Your Authorised Users. You may allow your Authorised Users to use the SmartFocus Software Services, provided that your Authorised Users are using the SmartFocus Software Services solely to manage the marketing requirements on your or your Business Clients’ behalf in accordance with the terms of this Contract. 
2.2. Assistance. You must promptly provide all reasonable assistance, information and decision-making that SmartFocus reasonably requires in order to provide the SmartFocus Software Services to you. Our Fees are calculated on the assumption that you will meet your performance commitments (such as for setting up and activation of the SmartFocus Software Services). All Fees remain due and payable if any delay in delivering the SmartFocus Software Services is caused by your failure to comply with this obligation.
2.3. Your Obligations. You will ensure that:

(a) You keep secure and confidential all Client IDs (including log-on identifiers or usernames) and passwords for accessing the SmartFocus Software Services. You are responsible for all access and use of the SmartFocus Software Services under a Client ID assigned to you and for the acts and omissions of your Authorised Users, as if such acts and omissions were your own; 
(b) You promptly notify SmartFocus when you become aware of any unauthorised access to or use of the SmartFocus Software Services and provide all reasonable assistance to SmartFocus to stop this; and
(c) Your Business Clients are bound by the same obligations that apply to you under this Contract.

2.4. Restrictions. You must not and you must procure that your Authorised Users and Business Clients must not:

(a) Copy, modify, adapt or create derivative works from any part of the SmartFocus Software Services, try to discover or gain access to the source code or reverse engineer, decrypt, extract, disassemble or decompile the SmartFocus Software Service (except to the extent that you are expressly permitted to and SmartFocus is not allowed to restrict you under applicable law);
(b) Try to interfere with the proper working of the services, circumvent security, licence control or other protection mechanisms, tamper with, hack into or otherwise disrupt the SmartFocus Software Services or our systems or devices;
(c) Allow an unauthorised robot or automated process to interact with the SmartFocus Software Services;
(d) Obscure, change or remove any copyright notices, trade marks or other proprietary markings on or visible during the use of the SmartFocus Software Services; and
(e) Use the SmartFocus Software Services: (i) in breach of any applicable laws or regulations or our Acceptable Use Policy; (ii) in connection with unlawful material (e.g. material that is obscene, defamatory or violates intellectual property laws); or (iii) in a manner that causes a material risk to the security or operations of our services or any of our customers.

2.5. If Client uses SmartFocus services (such as Smart Social or User Generated Content) in conjunction with third party platforms, services or data (e.g. social media platforms, media partners, or device operating systems), then Client is responsible for complying and will ensure that its Business Clients comply with the terms and conditions required by such third party providers and all such use is at Client’s own risk.

3. FEES AND PAYMENTS

3.1. Fees. Unless expressly stated otherwise in the Sales Order, you will pay the Fees set out in the Sales Order within 30 days after the date of the invoice, without any deductions or offsets. Any Fees that are unpaid as of the date of termination or expiration will be immediately due and payable. No refund or credit will be provided for any volume or services that remain unused at the end of the Term.
3.2. Fee Increases. SmartFocus reserves the right to increase the Fees no more frequently than once every 12 months, with effect from the end of the Initial Term, provided that the increase in Fees is no higher than the percentage increase in the Retail Prices Index in the preceding 12-month period.
3.3. Disputes. If you believe, in good faith, that SmartFocus has incorrectly invoiced you, you must contact SmartFocus within 30 days of the invoice date, specifying the error. Unless you have notified SmartFocus within this time, you will reimburse SmartFocus for our reasonable collection costs. You will pay the undisputed portions of our invoice as required by this Contract.
3.4. Failure to Pay. If you fail to pay any amount due under this Contract, SmartFocus will send you a reminder notice. If you fail to pay within 14 days of the date of the reminder notice, SmartFocus, may terminate the relevant Sales Order or suspend the provision of all or any part of the relevant SmartFocus Software Services. SmartFocus may charge interest on overdue fees, at a rate of 1% per month or the maximum rate permitted by applicable law, from the due date until the date that the overdue amount (plus interest) is paid in full. 
3.5. Taxes. All Fees are exclusive of VAT and other similar taxes, which, if applicable, will be added to the invoice at the rate prescribed by law.

4. DELIVERY AND ACCEPTANCE

4.1. SmartFocus Software Services are deemed to be delivered and accepted on the Start Date.

5. OWNERSHIP AND LICENCES

5.1. Client Materials. Client (or the relevant rights owner such as your Business Client) remains the owner of all rights (including intellectual property rights) in all data, information, trade marks, logos or material provided or made available to SmartFocus by Client (Client Content).
5.2. Licences. Client grants or will procure that the rights owner grants to SmartFocus the following licences for purpose of providing the SmartFocus Software Services and performing its obligations under this Contract:  the right to use and modify the Client Content, including publishing, distributing and publicly displaying it. This is a non-exclusive, worldwide and royalty-free licence.

5.3. SmartFocus Software Services. SmartFocus (and its licensors) remain the owner of all rights (including intellectual property rights) in the SmartFocus Software Services.

6. DATA AND DATA RETENTION


6.1. Data Processing Agreement. Each of us will comply with the Data Processing Agreement signed between the parties, which is incorporated into this Contract by reference. You warrant that you have the authority to enter into the Data Processing Agreement on behalf of your Business Clients who are the Data Controllers of the Client Personal Data that is processed by SmartFocus under this Contract.
6.2. Data Retention. During the Term, SmartFocus will retain data for the following periods:

  • Client Content: for the Term;
  • Behavioural Information: 180 days after “send” date of any campaign.

Thereafter, and including after termination or expiry of the relevant Sales Order, SmartFocus will delete all such data in line with our Data Retention Policy, a copy of which will be made available upon written request. SmartFocus has no obligation to retain any other data. 

6.3. Data Backups. You are responsible for securing and backing up any Client Content, data and other materials belonging to you. You may retrieve your Client Content and the related Behavioural Information at any time during the Term at no additional cost.  If you do not retrieve this material within the Term, you still have 5 days after termination to do so. You may also request for SmartFocus to provide Professional Services to assist in retrieving this material, provided that you make the request at least 30 days before the end of the Term. We will work with you to agree the details and costs of the Professional Services that will be set out in a Statement of Work.
6.4. Sensitive Personal Data. You will not collect, process or store any personal data relating to children or Sensitive Personal Data using the SmartFocus Software Services.
6.5. Statistics. SmartFocus will aggregate and /or use Statistics for research, business development, internal use, product development, sales and marketing purposes provided that the Statistics are de-identified, anonymized and cannot identify the Client. SmartFocus remains the owner of these Statistics.

7. WARRANTIES AND DISCLAIMERS

7.1. SmartFocus Warranties. SmartFocus warrants that the SmartFocus Software Services, when used as authorised under this Contract, will materially conform to the Specifications during the Term. If SmartFocus’ breaches this warranty, your sole and exclusive remedy is for SmartFocus to repair or replace the affected SmartFocus Software Services to make them conforming, or, if SmartFocus determines that these remedies are not commercially reasonable, then either party may terminate this Contract and SmartFocus will provide a prorated refund to Client for any prepaid Fees for the unused portion of the Term. 
7.2. Disclaimer.  Except for the express warranties stated in this clause 7 (Warranties and Disclaimers), SmartFocus: (a) does not provide any additional representation or warranty of any kind - express, implied or statutory - as to any matter whatsoever; (b) disclaims all implied warranties, including satisfactory quality, fitness for a particular purpose, non-infringement and title; and (c) does not warrant that the SmartFocus Software Services are or will be error-free or meet Client’s specific requirements. You acknowledge that: (a) SmartFocus does not control your equipment or the transfer of data over communications facilities (including the internet and social media channels); (b) SmartFocus is not responsible for any interruptions, delays, cancellations, delivery failures, data loss, content corruption, packet loss or other damage resulting from problems with your equipment or with communications facilities.
7.3. Delivery errors. SmartFocus is not responsible for the non-delivery of email messages that are due to email address errors, hard / soft bounces, email filters of mail clients, email blacklists or similar. 

8. INDEMNITIES

8.1. By SmartFocus.  Subject to clause 8.3, SmartFocus will indemnify the Client against all proven loss, liabilities, damages and reasonably incurred costs (including legal fees) directly arising during the Term from any third party claim (“Losses”) that the Client’s use of the SmartFocus Software Services in accordance with this Contract infringes a third party’s Intellectual Property Rights, provided, however, that SmartFocus will not be responsible for Losses that are due to the combination of SmartFocus Software Services with goods or services provided by third parties.
8.2. Infringement Remedy.  In the defence or settlement of any Claim for intellectual property infringement, SmartFocus may, in its sole option and expense:

(a) Obtain for Client a licence to continue using the allegedly infringing parts of the SmartFocus Software Services under the terms of this Contract;
(b) Replace or modify the allegedly infringing parts of the SmartFocus Software Services to avoid the infringement; or
(c) If SmartFocus determines that the above remedies are not commercially reasonable, then SmartFocus may terminate the Client’s licence and access to the infringing part of the SmartFocus Software Services and provide a prorated refund to Client for any prepaid Fees for the unused portion of the Term. 

The remedies set out in clauses 8.1 and 8.2 are Client’s sole and exclusive remedies and SmartFocus’ sole liability for any actual or alleged infringement by SmartFocus of any third party intellectual property rights.

8.3. By Client.  Client will indemnify SmartFocus against all Losses to the extent arising from or related to: (a) misuse use of the SmartFocus Software Services by Client or its Authorised Users; (b) any breach by Client of its obligations under clauses 2.3 and 2.4.

8.4. Conditions.  Each parties’ indemnification obligations are conditional upon the indemnified party (to the extent permitted by applicable law): 

(a) Promptly notifying the indemnifying party in writing of any Claim; 
(b) Granting the indemnifying party sole control over the defence and settlement of the Claim; 
(c) Co-operating with the indemnifying party may in the defence of the Claim;  
(d) Refraining from making any admissions about the Claim; and
(e) Taking all reasonable steps to mitigate the Losses or potential losses arising under the Claim. 

9. LIABILITY

9.1. Nothing in this Contract excludes or limits either party’s liability for: (a) death or personal injury caused by its negligence; (b) fraudulent misrepresentation; (c) in respect of the Client, to pay the Fees; or (d) any other liability which may not lawfully be excluded or limited.
9.2. Subject to clause 9.1, neither party will be liable (whether from breach of contract, tort (including negligence), breach of statutory duty or otherwise) arising under or in connection with this Contract for:
 

(a) loss of profits;
(b) loss of sales or business;
(c) loss of agreements or contracts;
(d) loss of anticipated savings; 
(e) loss of or damage to goodwill;
(f) loss of use or corruption of software, data or information; and
(g) any indirect or consequential loss.

9.3. Subject to clauses 9.1 and 9.2, each party's maximum liability arising out of or relating to this Contract or its subject matter (whether from breach of contract, tort (including negligence), breach of statutory duty or otherwise) is limited to an amount equal to the total of the Fees payable by the Client under this Contract in the twelve (12) months prior to the date on which the claim arose. 

10. TERM AND TERMINATION

10.1. Term. This Contract commences on the Start Date and continues until the End Date, unless terminated earlier under this Contract. At the end of the Initial Term or Extension Term, this Contract will automatically renew for 12 months unless either party gives to the other party at least 90 days written notice, prior to the end of the Initial Term or Extension Term.  
10.2. Termination for Cause. Either party may, on written notice to the other party, immediately terminate this Contract or any Sales Order, or at SmartFocus’ discretion, suspend provision of all or part of our SmartFocus Software Services, if the other party:

(a) Material Breach. materially and/or persistently breaches any term of this Contract and fails to remedy such breach (if capable of remedy) within thirty (30) days of being given notice to do so; or
(b) Insolvency. becomes insolvent, makes composition with its creditors, has a receiver or administrator of its undertaking or the whole or a substantial part of its assets appointed, or  an order is made, or an effective resolution is passed, for its administration, receivership, liquidation, winding-up or other similar process, or has any distress, execution or other process levied or enforced against the whole or a substantial part of its assets (which is not discharged, paid out, withdrawn or removed within twenty eight (28) days), or is subject to any proceedings which are equivalent or substantially similar to any of the foregoing under any applicable jurisdiction, or ceases to trade or threatens to do so.

10.3. Effect of Termination:

(a) Termination for Material Breach. If this Contract is terminated by SmartFocus for the Client’s material / persistent breach under clause 10.2(a), the Client will pay to SmartFocus an amount equal to the Fees that would otherwise be due for the remainder of the then current Initial Term or Extension Period, together with any other amounts which are due to SmartFocus pursuant to the terms of this Contract, without prejudice to SmartFocus’ other rights and remedies.
(b) Termination or Expiration. Upon termination of this Contract for any reason whatsoever: (i) the Client and Authorised Users will immediately cease to access, and discontinue all use, of the SmartFocus Software Services; and (ii) all amounts payable to SmartFocus by the Client will become immediately due and owing.
(c) Survival.  The termination of this Contract will not: (i) prejudice any accrued rights or liabilities of either party as at the date of termination; or (ii) affect any provisions of this Contract which by their nature survive termination or expiration.

11. CHANGES TO OUR SERVICES

11.1. Enhancements. As a cloud platform, we may modify the SmartFocus Software Services to make updates, enhancements and adapt to the market. SmartFocus will provide you with access to generally available updates and enhancements without additional fees. However, with some updates or new features, SmartFocus will give you advance notice that you may need to purchase additional professional services if additional implementation work is required to allow you to benefit from certain updates or new features.
11.2. Notifications. When we make changes to the SmartFocus Software Services, we will let you know in advance if these changes will materially disadvantage you. For all other changes, we will inform you as soon as reasonably practicable.

12. GENERAL

12.1. Audit. SmartFocus may audit the Client’s use of the SmartFocus Software Services solely to ensure that the usage remains within the restrictions set out in our Contract.
12.2. Export Laws. Client warrants that it and its Business Clients are not located in, under the control of, or a national or resident of an embargoed country or a prohibited end user under applicable export control laws and regulations.

12.3. Force Majeure. Neither party will be liable to the other for any breach of this Contract which arises because of circumstances which are beyond the defaulting party’s reasonable control (including, acts of god, terrorism, fire, flood, war, labour disputes, governmental action, change of law, failure of third-party providers, interruption or failure of  the Internet or any network, utility failures or power outages, but will not include shortage or lack of available funds), provided it promptly notifies the other party of such circumstances. If performance has been adversely affected or prevented for more than ninety (90) days, the party whose performance is not affected may terminate this Contract immediately by written notice to the other party.
12.4. Confidential Information. Information which is secret or otherwise not publicly available, including pricing under this Contract, commercial, financial, marketing or technical information, know-how, trade secrets or business methods, in all cases whether disclosed orally or in writing and provided by one party to the other in connection with this Contract before or after the Start Date is confidential and will be treated as such by the receiving party (“Confidential Information”). Use of Confidential Information by the receiving party must be solely for the purpose of observing and performing its obligations under this Contract. Confidential Information must not be disclosed to any third party without the written consent of the disclosing party,  except  where  required  to  do  so  by  applicable  law  or  any competent regulatory body, court, tribunal, or other body of competent jurisdiction.
12.5. Publicity. Neither party will use the name or branding of the other party in publicity, advertising, or similar activity, without the prior written consent of the other, except that SmartFocus may use Client's name and branding on our website or in customer listings as part of our marketing efforts, in accordance with any branding guidelines provided to SmartFocus.
12.6. Assignment. The Client may not sub-license, assign or transfer any of its rights or obligations under this Contract without the prior written consent of SmartFocus. SmartFocus may assign or transfer any of its rights and obligations under this Contract at its discretion as part of a group reorganisation or trade sale.
12.7. Notice. Any notice given under this Contract must be in writing by email to the following addresses (or addresses notified in writing by either party): to SmartFocus: notice@smartfocus.com ; and to Client: at the Client’s email address stated on the Sales Order. 
12.8. Modification and Waiver. This Contract may not be varied or amended except in writing signed by both parties. The waiver by either party of any breach of any provisions of this Contract does not waive any other breach. The parties acknowledge that this Agreement may need to be updated when the UK leaves the European Union and either party may notify the other of what changes may be necessary, to be agreed. 
12.9. Severance. If any provision of this Contract is held invalid or unenforceable, the remainder of the provision and this Contract will continue in full force and effect. 
12.10. Third Party Rights. Save as expressly set out in this Contract, a person who is not a party to this Contract or a permitted assignee has no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Contract.
12.11. Entire Agreement. This Contract (including the Sales Order, Data Processing Agreement, Acceptable Use Policy and Service Level Agreement) sets out the final, complete and exclusive agreement between the parties regarding the SmartFocus Software Services provided under this Contract. It cancels and supersedes all previous agreements between the parties relating to such subject matter. No other representations or terms shall apply or form part of this Contract.
12.12. Governing Law and Jurisdiction. This Contract and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this agreement or its subject matter or formation.
12.13. Counterparts. This Contract may be executed in one or more counterparts, each of which will be deemed an original, but all of which together will constitute the same agreement.
12.14. Order of Precedence. If there is any conflict between the documents, the order of precedence is set out below in descending order of control: (a) the Sales Order; (b) the Data Processing Agreement; (c) the SmartFocus Software Services Agreement; (d) the Acceptable Use Policy; and (e) the Service Level Agreement.

13. DEFINITIONS AND INTERPRETATION

Acceptable Use Policy: the document available here <link>, as updated from time to time.
Authorised User: means an individual (either an employee or temporary worker of Client) who may use or access the SmartFocus Software Services.
Business Client: the Client’s business client that instructs the Client to use SmartFocus Software Services on their behalf.
Claim: any action or legal proceeding filed against a party which could lead to a claim under the indemnities in clause 8.
Extension Term: the subsequent 12 month period following the Initial Term or an Extension Term.
Initial Term: from the Start Date to the End Date as stated in the Sales Order.
Intellectual Property Rights: all copyright and related rights, patents, rights to inventions, logos, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection.
Retail Prices Index:  the Retail Prices Index as published by the Office for National Statistics from time to time, or failing such publication, such other index as the parties may agree most closely resembles such index.
Sensitive Personal Data: personal data revealing racial or ethnic origin, political opinions, religious or philosophical believes, trade union membership, health, sexual life or sexual orientation, criminal convictions or offences, genetic or biometric data (for the purpose of uniquely identifying a natural person), financial data such as personal bank account or payment card numbers, social security numbers, driving licence numbers, and passport and visa numbers. 
SmartFocus Software Services: the software services provided by SmartFocus and set out in the Sales Order.
Specifications: the document available here <link>, as updated from time to time.
Statistics: anonymized, de-identified and aggregated information generated by Client’s use of SmartFocus’ Software Services.
Term: the Initial Term together with any Extension Term.
The word "including", “include”, “in particular”, “for example” or similar expressions will be read as providing a non-exhaustive list.
Capitalised terms used and not defined in this Contract have the meanings given to them in the Sales Order.


The parties have read and agree to this Contract.

Signed for and on behalf of SMARTFOCUS                        
Name of Director:                        
Date:                                    
Signature:


Signed for and on behalf of CLIENT                        
Name of Director:                        
Date:        
Signature:

Service Level Agreement - Enterprise

Service Level Agreement (SLA)

Version: 1.3   |   Date: 06-02-2018

1. Purpose

This SLA sets out the Support Services and Service Levels that are provided to the Client by SmartFocus for the SmartFocus Software Services. All capitalized terms used but not defined in this SLA have the meanings given to them in the SmartFocus Software Services Agreement.

2. Support Service

The support services provided to the Client under this Contract include:

  • 24x7 automated and alert monitoring system of SmartFocus’ platform
  • Unlimited telephone, email or portal support for any Incident as follows:
  • During Business Hours - in English and one other language if required (limited to French/ Spanish/ Cantonese, as agreed with Client)
  • Access to the SmartFocus Customer Portal via Online Help of the SmartFocus Software  Services
  • Designated Technical Account Manager

3. Support hours

   Business Hours

   24x7

4. Reporting Procedure

Authorised Users may submit a support request to SmartFocus Support Team at SmartFocus Support Team Contact Details .

Reporting Handling Procedure. All cases reported correctly to SmartFocus Support Team are managed as follows:

  • The Client contacts SmartFocus Support Team and clearly: (a) provides all necessary details for SmartFocus to assess and resolve the reported case; and (b) explains the business impact of the issue;
  • SmartFocus Support Team will respond to the Client’s report and log the Client’s request with a unique case number and report of incident;
  • SmartFocus Support Team will carry out preliminary investigations into the nature of the issue and confirm the assignment of a severity level from 1 to 4 based on the impact described in section 5. The severity may be reasonably changed by SmartFocus Support Team after initial contact and assessment of the issue by SmartFocus;
  • Upon request, the Client will co-operate with SmartFocus’ reasonable requests to provide information and assistance in the diagnosis and resolution of any problems encountered. SmartFocus will use its commercially reasonable efforts to provide a workaround for each issue raised;
  • SmartFocus Support Team will communicate with the Client as necessary and confirm when  the request has been resolved or if not fully resolvable,  the recommended actions;
  • The Client agrees to verify the solution proposed and to either confirm the resolution or make a further report to SmartFocus within 3 business days of notification, failing which the case will be deemed resolved and closed.

 

5. Severity Types & Response Times

Incidents are assigned a severity level in accordance with the table below.  The severity level establishes the priority of the Incident and is communicated to the Client at time of logging.

 Severity

Priority

Examples

 1

Top

The SmartFocus platform is inoperable due to a major application failure or there are issues related to data integrity causing business process to be halted. There is no workaround available.

 2

High

Major functionality is severely impaired, operations can continue however in a restricted manner and long term productivity may be adversely affected and there is no acceptable workaround. A Workaround is deemed unacceptable if:

  • Workaround is labour intensive or time consuming
  • Workaround impacts repeated transactions
  • Client must reallocate or add resources to implement
  • Workaround does not completely address the problem

 3

Medium

There is a partial non-critical loss of functionality where some of the operations are impaired but users can still access and use the Service and there is an acceptable workaround for the problem.

 4

Low

No or low Service impact including cosmetic issues on screen or requests regarding the use of the Service.

The response targets are based on the severity level of the Incident and are defined below. The response time is calculated as the time difference between an Authorised User reporting an incident and the corresponding response.

   Severity

Response Target

   1

Within 1 Business Hours

   2

Within 2 Business Hours

   3

Within 6 Business Hours

   4

Within 24 Business Hours

 

6. Escalation guidelines

If the Client is not satisfied with the progress of the case, the Client may contact the manager of the SmartFocus Support Team or their Account Manager. Once the escalation is received and acknowledged, SmartFocus will respond with the explanation of the actions undertaken so far, the status of the case and the next steps.

7. Scheduled Maintenance Times

Scheduled Maintenance Time allows SmartFocus to perform maintenance or repair or to add or enhance features of the Relevant Services. SmartFocus will give Client at least 7 days advance written notice of Scheduled Maintenance Time. Unless otherwise notified, every Sunday BETWEEN 06:00 HRS & 12:00 HRS CET is reserved for routine Scheduled Maintenance Time for use as needed.

8. Service Level Credits

  • Service Level Credits will be provided by SmartFocus to Client only if SmartFocus fails to meet the Minimum Uptime Percentage for the Relevant Service as set out in the Sales Order and Client has provided SmartFocus with notice by email to service.credits@smartfocus.com no later than 7 days after the Downtime.
  • If during any full calendar month of the Term, the Uptime Percentage is lower than the Minimum Uptime Percentage, SmartFocus will provide Client with a Service Level Credit in accordance with the table below:

   For 99% Minimum Uptime Percentage:

   Uptime Percentage:

   Service Level Credit:

   ≥ 97.0% but < 99%

   10% of Monthly Fees

   ≥95.0% but <97.0%

   15% of Monthly Fees

   ≤ 95.0%

   20% of Monthly Fees

  • SmartFocus will monitor the actual performance of the Relevant Services and make it available to Client at https://smartfocus1.statuspage.io/  
  • The Service Level Credits will be applied against the next additional Sales Order signed by Client and SmartFocus. The Service Level Credits will be deemed as liquidated damages and will constitute Client’s sole and exclusive remedy for SmartFocus’ breach of the applicable Uptime Percentage.

9. Definitions

  • Downtime: the minutes during the calendar month when the Relevant Service is not available to the Client, except any Scheduled Maintenance Time and Excluded Time;
  • Excluded Time: the minutes that the Relevant Service is not available, due to one or more of the following:
    • (a) acts or omissions of Client, its Authorised users, representatives;
    • (b) delay or failure of Client to perform Client’s obligations under the Contract;
    • (c) failure of Client to follow SmartFocus’ documented recommendations, including hardware or software configuration necessary to meet minimum system requirements for the Relevant Services;
    • (d) spikes in demand for system resources driven by Client for which Client and SmartFocus did not agree in writing to allow SmartFocus to make accommodation for such increase in demand, unless otherwise agreed in a Sales Order;
    • (e) software, hardware or third-party services not provided or controlled by SmartFocus or events beyond SmartFocus’ reasonable control, such as force majeure events; or
    • (g) any other breach of the Contract by Client that materially adversely impacts SmartFocus’ ability to achieve the Uptime Percentage.
  • Incident: a single, reproducible issue, problem or symptom;
  • Maximum Uptime: the total minutes in the calendar month (e.g. 44,640 minutes in the month of July) minus Scheduled Maintenance Time during the same calendar month.
  • Minimum Uptime Percentage: the percentage set out in the Sales Order for the Relevant Service purchased.
  • Relevant Service: the SmartFocus Service that has a Minimum Uptime Percentage specified in the Sales Order;
  • Scheduled Maintenance Time: the number of minutes elapsed during maintenance performed by SmartFocus that results in the Relevant Services not being available where SmartFocus has provided at least one week’s advance written notice;
  • Uptime Percentage: the Maximum Uptime minus Downtime and divided by Maximum Uptime.

 

 

 

 

Service Level Agreement - Premium

Service Level Agreement (SLA)

Version: 1.3   |   Date: 06-02-2018

1. Purpose

This SLA sets out the Support Services and Service Levels that are provided to the Client by SmartFocus for the SmartFocus Software Services. All capitalized terms used but not defined in this SLA have the meanings given to them in the SmartFocus Software Services Agreement.

2. Support Service

The support services provided to the Client under this Contract include:

  • 24x7 automated and alert monitoring system of SmartFocus ’s platform
  • Unlimited telephone, email or portal support for any Incident as follows:
  • During Business Hours - in English and one other language if required (limited to French/ Spanish/ Cantonese, as agreed with Client)
  • Out of Business Hours – English only
  • Access to the SmartFocus Customer Portal via Online Help of the SmartFocus Software  Services
  • Designated Technical Account Manager

3. Support hours

Business Hours
  • 08:00 to 20:00 Local Time, Monday to Friday
  • 09:00 to 18:00 Local Time, Saturday & Sunday
  • Local Time: Europe (CET), Asia (HKT), USA (CDT), UK (GMT)
Out of Business Hours All non-Business Hours  and public / national holidays

4. Reporting Procedure

Authorised Users may submit a support request to SmartFocus Support Team at SmartFocus Support Team Contact Details .

Reporting Handling Procedure. All cases reported correctly to SmartFocus Support Team are managed as follows:

  • The Client contacts SmartFocus Support Team and clearly: (a) provides all necessary details for SmartFocus to assess and resolve the reported case; and (b) explains the business impact of the issue;
  • SmartFocus Support Team will respond to the Client’s report and log the Client’s request with a unique case number and report of incident;
  • SmartFocus Support Team will carry out preliminary investigations into the nature of the issue and confirm the assignment of a severity level from 1 to 4 based on the impact described in section 5. The severity may be reasonably changed by SmartFocus Support Team after initial contact and assessment of the issue by SmartFocus;
  • Upon request, the Client will co-operate with SmartFocus’ reasonable requests to provide information and assistance in the diagnosis and resolution of any problems encountered. SmartFocus will use its commercially reasonable efforts to provide a workaround for each issue raised;
  • SmartFocus Support Team will communicate with the Client as necessary and confirm when  the request has been resolved or if not fully resolvable,  the recommended actions;
  • The Client agrees to verify the solution proposed and to either confirm the resolution or make a further report to SmartFocus within 3 business days of notification, failing which the case will be deemed resolved and closed.

5. Severity Types & Response Times

Incidents are assigned a severity level in accordance with the table below.  The severity level establishes the priority of the Incident and is communicated to the Client at time of logging.

Severity Priority Examples
1 Top The SmartFocus platform is inoperable due to a major application failure or there are issues related to data integrity causing business process to be halted. There is no workaround available.
2 High

Major functionality is severely impaired, operations can continue however in a restricted manner and long term productivity may be adversely affected and there is no acceptable workaround. A Workaround is deemed unacceptable if:

  • Workaround is labour intensive or time consuming
  • Workaround impacts repeated transactions
  • Client must reallocate or add resources to implement
  • Workaround does not completely address the problem
3 Medium There is a partial non-critical loss of functionality where some of the operations are impaired but users can still access and use the Service and there is an acceptable workaround for the problem.
4 Low No or low Service impact including cosmetic issues on screen or requests regarding the use of the Service.

 

The response targets are based on the severity level of the Incident and are defined below. The response time is calculated as the time difference between an Authorised User reporting an incident and the corresponding response.

Severity Response Target
1 Within 2 Business Hours
2 Within 4 Business Hours
3 Within 8 Business Hours
4 Within 24 Business Hours

6. Escelation Guidelines

If the Client is not satisfied with the progress of the case, the Client may contact the manager of the SmartFocus Support Team or their Account Manager. Once the escalation is received and acknowledged, SmartFocus will respond with the explanation of the actions undertaken so far, the status of the case and the next steps.

7. Scheduled Maintenance Times

Scheduled Maintenance Time allows SmartFocus to perform maintenance or repair or to add or enhance features of the Relevant Services. SmartFocus will give Client at least 7 days advance written notice of Scheduled Maintenance Time. Unless otherwise notified, every Sunday BETWEEN 06:00 HRS & 12:00 HRS CET is reserved for routine Scheduled Maintenance Time for use as needed.

8. Service Level Credits

  • Service Level Credits will be provided by SmartFocus to Client only if SmartFocus fails to meet the Minimum Uptime Percentage for the Relevant Service as set out in the Sales Order and Client has provided SmartFocus with notice by email to service.credits@smartfocus.com no later than 7 days after the Downtime.
  • If during any full calendar month of the Term, the Uptime Percentage is lower than the Minimum Uptime Percentage, SmartFocus will provide Client with a Service Level Credit in accordance with the table below:

   For 98% Minimum Uptime Percentage:

   Uptime Percentage:

   Service Level Credit:

   ≥ 96.0% but < 98% 

   10% of Monthly Fees

   ≥94.0% but <96.0%

   15% of Monthly Fees

   ≤ 94.0%

   20% of Monthly Fees

  • SmartFocus will monitor the actual performance of the Relevant Services and make it available to Client at https://smartfocus1.statuspage.io/  .
  • The Service Level Credits will be applied against the next additional Sales Order signed by Client and SmartFocus. The Service Level Credits will be deemed as liquidated damages and will constitute Client’s sole and exclusive remedy for SmartFocus’ breach of the applicable Uptime Percentage.

9. Definitions

  • Downtime: the minutes during the calendar month when the Relevant Service is not available to the Client, except any Scheduled Maintenance Time and Excluded Time;
  • Excluded Time: the minutes that the Relevant Service is not available, due to one or more of the following:
    • (a) acts or omissions of Client, its Authorised users, representatives;
    • (b) delay or failure of Client to perform Client’s obligations under the Contract;
    • (c) failure of Client to follow SmartFocus’ documented recommendations, including hardware or software configuration necessary to meet minimum system requirements for the Relevant Services;
    • (d) spikes in demand for system resources driven by Client for which Client and SmartFocus did not agree in writing to allow SmartFocus to make accommodation for such increase in demand, unless otherwise agreed in a Sales Order;
    • (e) software, hardware or third-party services not provided or controlled by SmartFocus or events beyond SmartFocus’ reasonable control, such as force majeure events; or
    • (g) any other breach of the Contract by Client that materially adversely impacts SmartFocus’ ability to achieve the Uptime Percentage.
  • Incident: a single, reproducible issue, problem or symptom;
  • Maximum Uptime: the total minutes in the calendar month (e.g. 44,640 minutes in the month of July) minus Scheduled Maintenance Time during the same calendar month.
  • Minimum Uptime Percentage: the percentage set out in the Sales Order for the Relevant Service purchased.
  • Relevant Service: the SmartFocus Service that has a Minimum Uptime Percentage specified in the Sales Order;
  • Scheduled Maintenance Time: the number of minutes elapsed during maintenance performed by SmartFocus that results in the Relevant Services not being available where SmartFocus has provided at least one week’s advance written notice;
  • Uptime Percentage: the Maximum Uptime minus Downtime and divided by Maximum Uptime.

 

 

Service Level Agreement - Standard

Service Level Agreement (SLA)

Version: 1.3   |   Date: 06-02-2018

1. Purpose

This SLA sets out the Support Services and Service Levels that are provided to the Client by SmartFocus for the SmartFocus Software Services. All capitalized terms used but not defined in this SLA have the meanings given to them in the SmartFocus Software Services Agreement.

2. Support Service

The support services provided to the Client under this Contract include:

  • 24x7 automated and alert monitoring system of SmartFocus ’s platform
  • Unlimited telephone, email or portal support for any Incident as follows:
  • During Business Hours - in English and one other language if required (limited to French/ Spanish/ Cantonese, as agreed with Client)
  • Out of Business Hours – English only
  • Access to the SmartFocus Customer Portal via Online Help of the SmartFocus Software Services

3. Support hours

Business Hours

 09:00 to 18:00 Local Time, Monday to Sunday

 Local Time: Europe (CET), Asia (HKT), USA (CDT), UK (GMT)

Out of Business Hours

 All non-Business Hours  and public / national holidays

4. Reporting Procedure

Authorised Users may submit a support request to SmartFocus Support Team at SmartFocus Support Team Contact Details .

Reporting Handling Procedure. All cases reported correctly to SmartFocus Support Team are managed as follows:

  • The Client contacts SmartFocus Support Team and clearly: (a) provides all necessary details for SmartFocus to assess and resolve the reported case; and (b) explains the business impact of the issue;
  • SmartFocus Support Team will respond to the Client’s report and log the Client’s request with a unique case number and report of incident;
  • SmartFocus Support Team will carry out preliminary investigations into the nature of the issue and confirm the assignment of a severity level from 1 to 4 based on the impact described in section 5. The severity may be reasonably changed by SmartFocus Support Team after initial contact and assessment of the issue by SmartFocus;
  • Upon request, the Client will co-operate with SmartFocus’ reasonable requests to provide information and assistance in the diagnosis and resolution of any problems encountered. SmartFocus will use its commercially reasonable efforts to provide a workaround for each issue raised;
  • SmartFocus Support Team will communicate with the Client as necessary and confirm when  the request has been resolved or if not fully resolvable,  the recommended actions;
  • The Client agrees to verify the solution proposed and to either confirm the resolution or make a further report to SmartFocus within 3 business days of notification, failing which the case will be deemed resolved and closed.

5. Severity Types & Response Times

Incidents are assigned a severity level in accordance with the table below.  The severity level establishes the priority of the Incident and is communicated to the Client at time of logging.

Severity

Priority

Examples

1

Top

The SmartFocus platform is inoperable due to a major application failure or there are issues related to data integrity causing business process to be halted. There is no workaround available.

2

High

Major functionality is severely impaired, operations can continue however in a restricted manner and long term productivity may be adversely affected and there is no acceptable workaround. A Workaround is deemed unacceptable if:

-Workaround is labour intensive or time consuming

-Workaround impacts repeated transactions

-Client must reallocate or add resources to implement

 -Workaround does not completely address the problem

3

Medium

There is a partial non-critical loss of functionality where some of the operations are impaired but users can still access and use the Service and there is an acceptable workaround for the problem.

4

Low

No or low Service impact including cosmetic issues on screen or requests regarding the use of the Service.

The response targets are based on the severity level of the Incident and are defined below. The response time is calculated as the time difference between an Authorised User reporting an incident and the corresponding response.

Severity

Response Target

1

Within 4 Business Hours

2

Within 8 Business Hours

3

Within 16 Business Hours

4

Within 24 Business Hours

6. Escalation guidelines

If the Client is not satisfied with the progress of the case, the Client may contact the manager of the SmartFocus Support Team or their Account Manager. Once the escalation is received and acknowledged, SmartFocus will respond with the explanation of the actions undertaken so far, the status of the case and the next steps.

7. Scheduled Maintenance Times

Scheduled Maintenance Time allows SmartFocus to perform maintenance or repair or to add or enhance features of the Relevant Services. SmartFocus will give Client at least 7 days advance written notice of Scheduled Maintenance Time. Unless otherwise notified, every Sunday BETWEEN 06:00 HRS & 12:00 HRS CET is reserved for routine Scheduled Maintenance Time for use as needed.

8. Service Level Credits

  • Service Level Credits will be provided by SmartFocus to Client only if SmartFocus fails to meet the Minimum Uptime Percentage for the Relevant Service as set out in the Sales Order and Client has provided SmartFocus with notice by email to service.credits@smartfocus.com no later than 7 days after the Downtime.
  • If during any full calendar month of the Term, the Uptime Percentage is lower than the Minimum Uptime Percentage, SmartFocus will provide Client with a Service Level Credit in accordance with the table below:

For 97% Minimum Uptime Percentage:

Uptime Percentage:

Service Level Credit:

≥ 95.0% but < 97%

10% of Monthly Fees

≥ 93.0% but <95.0%

15% of Monthly Fees

≤ 93.0%

20% of Monthly Fees

  • SmartFocus will monitor the actual performance of the Relevant Services and make it available to Client at https://smartfocus1.statuspage.io/  
  • The Service Level Credits will be applied against the next additional Sales Order signed by Client and SmartFocus. The Service Level Credits will be deemed as liquidated damages and will constitute Client’s sole and exclusive remedy for SmartFocus’ breach of the applicable Uptime Percentage.

9. Definitions

  • Downtime: the minutes during the calendar month when the Relevant Service is not available to the Client, except any Scheduled Maintenance Time and Excluded Time;
  • Excluded Time: the minutes that the Relevant Service is not available, due to one or more of the following:
    • (a) acts or omissions of Client, its Authorised users, representatives;
    • (b) delay or failure of Client to perform Client’s obligations under the Contract;
    • (c) failure of Client to follow SmartFocus’ documented recommendations, including hardware or software configuration necessary to meet minimum system requirements for the Relevant Services;
    • (d) spikes in demand for system resources driven by Client for which Client and SmartFocus did not agree in writing to allow SmartFocus to make accommodation for such increase in demand, unless otherwise agreed in a Sales Order;
    • (e) software, hardware or third-party services not provided or controlled by SmartFocus or events beyond SmartFocus’ reasonable control, such as force majeure events; or
    • (g) any other breach of the Contract by Client that materially adversely impacts SmartFocus’ ability to achieve the Uptime Percentage.
  • Incident: a single, reproducible issue, problem or symptom;
  • Maximum Uptime: the total minutes in the calendar month (e.g. 44,640 minutes in the month of July) minus Scheduled Maintenance Time during the same calendar month
  • Minimum Uptime Percentage: the percentage set out in the Sales Order for the Relevant Service purchased.
  • Relevant Service: the SmartFocus Service that has a Minimum Uptime Percentage specified in the Sales Order;
  • Scheduled Maintenance Time: the number of minutes elapsed during maintenance performed by SmartFocus that results in the Relevant Services not being available where SmartFocus has provided at least one week’s advance written notice;
  • Uptime Percentage: the Maximum Uptime minus Downtime and divided by Maximum Uptime.

Data Processing Agreement

SmartFocus Data Processing Agreement
(with EU Standard Contractual Clauses)
Marketing Agent

This is the Data Processing Agreement referred to in the Contract between SmartFocus and, you, our Client which sets out both parties’ obligations in respect of the processing and use of  Client Personal Data in connection with our Services.  

1. RELATIONSHIP AND DATA PROTECTION LAWS

1.1. Relationship. For the processing of Client Personal Data in connection with the Services, you warrant that you have the authority to enter into this Data Processing Agreement on behalf of your Business Clients who are the data controllers. SmartFocus is the data processor.
1.2. Our obligations to you.  When processing the Client Personal Data in connection with the Services, SmartFocus will comply with all applicable obligations for data processors under the Data Protection Laws and the terms of this Agreement. 
1.3. Your obligations to us.  You will at all times comply with and will procure that your Business Clients comply with all Applicable DP Laws in connection with the processing of Client Personal Data in using the Services and the terms of this Agreement. You will have sole responsibility for the accuracy, quality and legality of the Client Personal Data and the means by which the Client Personal Data is acquired and you agree and warrant that:

(a) the Client Personal Data and the processing of Client Personal Data in connection with the Services will comply with the requirements for fair processing under the Applicable DP Laws; and 
(b) you will obtain (or will procure or ensure) all necessary consents from Customers, prior to using the Services, which are required for using the Services.

1.4. The obligations in this Agreement will not relieve, remove or replace each party’s obligations under the Data Protection Laws.

2. PROCESSING AND INSTRUCTIONS

2.1. Both parties agree that they will provide the other with all reasonable information to comply with the obligations under this Agreement.
2.2.  SmartFocus will only process the Client Personal Data: 

(a) for the purpose of performing the Services in accordance with your instructions as set out in the Contract, Schedule 1 and the terms of this Agreement or as further instructed by Client’s use of the Services or by documented reasonable instructions (for example, by email) where such instructions are consistent with the terms of this Agreement and the Contract (and not otherwise unless alternative processing instructions are provided in writing to SmartFocus, which may be subject to an additional fee, to be agreed);  and
(b) as required by applicable law (and will inform Client of that legal requirement before processing, unless prevented from doing so on important grounds of public interest). 

2.3. If SmartFocus believes that any use of the Services by the Client, or any of your instructions, infringes any Data Protection Law, SmartFocus will inform the Client and be entitled to suspend or stop the Services until this can be resolved or agreed by discussion between the DP Contacts within ten (10) working days.  If this cannot be resolved, SmartFocus may terminate the Contract for material breach on the terms of the Contract.  

3. TECHNICAL AND ORGANISATIONAL MEASURES

3.1. SmartFocus will implement and maintain reasonable appropriate technical and organisational measures to help protect the Client Personal Data against accidental, unauthorised or unlawful destruction, loss, alteration, disclosure or access during processing in connection with the Services, as set out the SmartFocus Information Security Policy (which is available via this link). 
3.2. You confirm that you, and your Business Clients, have carried out your own due diligence on our Services and have received a copy of the SmartFocus Information Security Policy before you sign the Contract and that these are suitable for your (and your Business Clients’) purposes and are sufficient to meet the requirements of the Data Protection Laws.
3.3. SmartFocus will, at its own discretion, continue to improve its technical and organisational measures in accordance with our technical developments to increase data security and any changes will be updated in our SmartFocus Information Security Policy.
3.4. Any additional technical and organisational measures requested by you will be subject to agreement between the parties and may be subject to an additional fee.

4. USING AUTHORISED PERSONS AND SUBCONTRACTORS

4.1. Authorised Persons.  SmartFocus will:  

(a) ensure that Authorised Persons only have access to the Client Personal Data if necessary for performance of the Services; and 
(b) entrust the processing of Client Personal Data to Authorised Persons who are aware of the confidential nature of the Client Personal Data and are contractually bound to keep the Client Personal Data confidential; 
(c) from the GDPR Date, ensure that Authorised Persons processing Client Personal Data have received training on GDPR and the obligations under this Agreement.

4.2. Subprocessors. If any subcontractor appointed by SmartFocus processes Client Personal Data  in providing the Services (“Subprocessor”), then, SmartFocus will remain responsible to the Client for its obligations under this Agreement.  From the GDPR Date:

(a) SmartFocus will ensure that Subprocessors will be bound by the same obligations that apply to SmartFocus under this Agreement.
(b) You, and your Business Clients, consent to the use of any Subprocessors identified on the Client help pages and our affiliates.
(c) Before appointing any new Subprocessor, SmartFocus will inform Client (and Client will  inform your Business Clients) of the appointment at least thirty (30) days prior to such appointment via the Client help pages. 
(d) If Client has objections to SmartFocus's use of any new Subprocessor, then Client may raise these objections by written notice giving your reasons to SmartFocus within thirty (30) days of the posting of the notice on the help pages.  On receipt of such notice from the Client, both parties agree to use their best efforts to overcome the objections within ninety (90) days of receipt of the Client’s objection.  At the end of this period, should you notify us in writing of your continued objections to the Subprocessor, then: 

(i) SmartFocus will confirm if the Client can continue with the Services without using the Subprocessor; or 
(ii) if it is not possible for Client to continue to use the Services without using the Subprocessor, then the Client may, as your sole and exclusive remedy, terminate the Contract by giving written notice to SmartFocus.   If in the opinion of SmartFocus’s DPO, your continued objections to the Subprocessor are reasonable and are based on grounds relating to compliance with Data Protection Laws, then SmartFocus will provide a prorated refund to the Client for any prepaid Fees for the unused portion of the Term from the effective date of termination.

5. INTERNATIONAL TRANSFERS


5.1. SmartFocus will not process and/or transfer any Client Personal Data in or to countries outside the European Economic Area (EEA) or to any international organisation except as set out in clause 5.2, without your prior written consent.
5.2. You, and your Business Clients, agree that SmartFocus may transfer Client Personal Data outside the EEA or to any international organisation(s), provided there are appropriate safeguards in place. This clause will constitute your, and your Business Clients’, instructions with respect to transfers in accordance with clause 2.2. Appropriate safeguards will include:

(a) Standard contractual clauses: Subject to (b), Client, your Business Clients, and SmartFocus agree to the Standard Contractual Clauses in Schedule 2. 
(b) Adequate measures in transferring personal data to US: if, in performing the Services, Client Personal Data is transferred to SmartFocus US Inc or to any Subprocessor located in the U.S., then this is on the basis that SmartFocus US Inc or such  Subprocessor is a certified organisation under the EU U.S. Privacy Shield and Swiss-U.S. Privacy Shield Framework and intends to maintain its certification status in the future. 

6. SECURITY INCIDENT NOTIFICATION

6.1. In the case of a Security Incident, SmartFocus will notify Client (and Client will notify its relevant Business Clients) without undue delay after SmartFocus becomes aware of the Security Incident by email to the Client DP Contact providing the following information (or as soon as SmartFocus becomes aware of such information): 

(a) a description of the Security Incident; and
(b) the nature of the Security Incident and the categories and approximate numbers of Customers and number of personal records concerned.

6.2. On becoming aware of a Security Incident, SmartFocus will:

(a) investigate the Security Incident;
(b) provide measures to limit and address the Security Incident and any adverse effects of the Security Incident; 
(c) provide reasonable assistance to Client to make any necessary notification to the supervisory authority, your Business clients or to Customers to include the required information on the Security Incident (as detailed below)), provided that (unless required to do so by law or by a supervisory authority), we will not make any statement regarding the Security Incident without notifying you first.   

The SmartFocus DP Contact (or other person notified to you) will be your dedicated point of contact at SmartFocus to keep you informed.  The required information on the Security Incident includes:

(i) a description of the nature of the personal data breach including where possible, the categories and approximate number of data subjects concerned and the categories and approximate number of personal data records concerned;
(ii) the name and contact details of the data protection officer or other contact point where more information can be obtained;
(iii) a description of the likely consequences of the personal data breach; and
(iv) a description of the measures taken or proposed to be taken to address the personal data breach, including, where appropriate, measures to mitigate its possible adverse effects. 

7. ASSISTANCE, COOPERATION AND AUDITS

7.1. Customer Requests:  If SmartFocus receives any request or complaint from a data subject, we will, to the extent legally permitted, notify you as soon as practicable (and within three (3) working days of receipt of the request) and Client will notify its relevant Business Client(s)
7.2. SmartFocus will provide reasonable assistance to you in respect of any data subject request, as follows:

(a) provided that, if the number of requests exceeds 2 per month, you will pay SmartFocus’s reasonable costs; and
(b) from the GDPR Date, taking into account the nature of the processing, with any technical or organisational measures, which SmartFocus considers is practical to assist you in responding to Customer requests. 

7.3. Data Protection Compliance and Privacy Impact Assessments:  From the GDPR Date, SmartFocus will provide such reasonable assistance to respond to your questions concerning the Services (provided Client will pay our reasonable costs) to enable you to assess and consider reasonable mitigation measures when carrying out a data protection impact assessment.  
7.4. Audit:  From the GDPR Date, you, and your Business Clients, agree to exercise your right to audit by instructing SmartFocus to carry out an audit which will:

(a) review the technical and organisational measures described in the SmartFocus Information Security Policy;
(b) be carried out at least annually; 
(c) be performed by appropriate independent auditors at SmartFocus’s selection and expense; and
(d) result in the generation of an audit report, which will be the confidential information of SmartFocus; and
(e) if Client requests in writing, SmartFocus will provide Client with a confidential copy of the audit report and Client may share this with those of its Business Clients that have requested a copy provided that Client procures that such Business Clients comply with the obligations of confidentiality stated. 

7.5. Further assistance: From GDPR Date, if Client requires any further information, assistance or audit to demonstrate SmartFocus's compliance with its obligations under this Agreement, then SmartFocus will provide reasonable information and assistance on reasonable notice on at least 10 (ten) working days notice (unless Client can demonstrate that the request is urgent), provided Client pays SmartFocus’s reasonable costs.
7.6. Cooperation with supervisory authority or other regulator:  SmartFocus will cooperate with any investigation from a supervisory authority or regulator (including any direct audit requests) and will communicate and assist Client with any response, if permitted to do so. 

8. DATA RETENTION

At the end of the retention periods relating to the processing of Client Personal Data as set out in the Contract and, at Client’s option, SmartFocus will delete the Client Personal Data in accordance with our Contract, except to the extent that any applicable law requires SmartFocus to continue to store such Client Personal Data. 

9. INDEMNITIES

9.1. By SmartFocus.  Except to the extent Client is liable under clause 9.2 and subject to clause 10, SmartFocus will indemnify the Client against all proven Data Protection Losses, to the extent permitted by Data Protection Laws and to the extent directly arising from or in connection with any material breach by SmartFocus of the SmartFocus Information Security Policy.
9.2. By Client.  Except to the extent SmartFocus is liable under clause 9.1 and subject to clause 10, Client will indemnify SmartFocus and any Subprocessor against all proven Data Protection Losses, to the extent permitted by Data Protection Laws and to the extent arising from or related to a material breach by Client of clause 1.3. 
9.3. Conditions.  Each parties’ indemnification obligations are conditional upon the indemnified party (to the extent permitted by applicable law): 

(a) promptly notifying the indemnifying party in writing of any Data Protection Claim; 
(b) granting the indemnifying party sole control over the defence and settlement of the Data Protection Claim; 
(c) co-operating with the indemnifying party in the defence of the Data Protection Claim;  
(d) refraining from making any admissions about the Data Protection Claim; and
(e) taking all reasonable steps to mitigate the Data Protection Losses or potential losses arising under the Data Protection Claim. 

10. LIABILITY

Subject to clauses 9.1 and 9.2 of the Contract (referring to where a limit does not apply and general exclusions or equivalent provisions in any version of the Contract), each party's maximum liability arising out of or relating to this Agreement or its subject matter is limited to an amount equal to a multiple of two (2) times the total of the Fees payable by the Client under the Contract in the twelve (12) months prior to the date on which the Claim arose or the maximum liability set out in clause 9.3 of the Contract, whichever is the higher.

11. GENERAL

11.1. Standard provisions in the Contract:  The provisions relating to the following matters in the Contract will apply to this Agreement: 

(a) Limits on liability (clauses 9.1 and 9.2 of the Contract);
(b) Force Majeure;
(c) Assignment; 
(d) Severance;
(e) Third Party Rights;
(f) Entire Agreement; and
(g) Counterparts.

11.2. Applicability. In case of discrepancies between this Agreement, the Contract and any other agreement between you and SmartFocus, the provisions of this Agreement will prevail, if related to processing the Client Personal Data in connection with the Services.
11.3. Modification and Waiver. This Contract may not be varied or amended except in writing signed by both parties. The waiver by either party of any breach of any provisions of this Agreement does not waive any other breach. The parties acknowledge that this Agreement may need to be updated when the UK leaves the European Union and either party may notify the other of what changes may be necessary, to be agreed. 
11.4. Survival.  The termination of this Agreement will not: (i) prejudice any accrued rights or liabilities of either party as at the date of termination; or (ii) affect any provisions of this Agreement which by their nature survive termination or expiration, including clauses 1.1, 8, 9, 10 and 11 and 6 and 7.6 (to the extent that any obligations are ongoing), all of which will survive termination.
11.5. Contacts and Resolution of Issues:  The following people will be available to discuss and resolve any matters relating to this Agreement:

(a) For SmartFocus:  the SmartFocus DPO (the ‘SmartFocus DP Contact’);
(b) For Client:  the contact for the Client identified in the Sales Order or otherwise notified to SmartFocus (the ‘Client DP Contact’);  
together the “DP Contacts”.

11.6. Governing Law and Jurisdiction. This Agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation will be governed by and construed in accordance with the law of England and Wales. In the event that the parties cannot resolve any issue under clause 11.5, each party irrevocably agrees that the courts of England and Wales will have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this agreement or its subject matter or formation.

12. DEFINITIONS AND INTERPRETATION

“Agreement” means this data processing agreement between SmartFocus and the Client and the Schedules attached to this agreement.
 “Authorised Persons” means any employees or contractors of SmartFocus;
 “Applicable DP Laws” means the Data Protection Laws and any other applicable laws relating to the protection of personal data which may apply in any applicable country in connection with the Client’s use of the Services;  
Business Client: the Client’s customer that instructs the Client to use SmartFocus Software Services on their behalf.
“Client” (also referred to as “you” or “your”) means the client referred to in the Sales Order relating to the relevant Contract for Services.
“Client DP Contact” has the meaning set out in clause 11.5;
“Client Personal Data” means personal data relating to Customers of your Business Clients that is processed under the Contract;
“Contract” means the SmartFocus Software Services Agreement or the SmartFocus Master Services Agreement (or both) entered into between you and SmartFocus, together with any Statement of Work, Sales Order and SLA;
“Customer” means the customers, subscribers and prospects of your Business Clients, personal data of whom will be processed under the Contract;
“Data Protection Claim” means any action or legal proceeding filed against a party which could lead to a claim under the indemnities in clause 9;
“Data Protection Laws” means:

(i) The UK’s Data Protection Act 1998 and any national laws or regulations in any EU member state implementing Directive 95/46/EC (Data Protection Directive); 
(ii) The GDPR, and/or any corresponding or equivalent national laws or regulations implementing GDPR in the UK or any other EU member state; and
(iii) The UK’s Privacy and Electronic Communications (EC Directive) Regulations 2003 and any national laws or regulations in any EU member state implementing Directive 2002/58/EC (as amended by Directive 2009/136/EC).

“Data Protection Losses” means all loss, liabilities, damages (including relating to material or non-material damage) and reasonable incurred costs (including reasonable legal fees and reasonable costs of compliance with investigations by a supervisory authority) directly arising during the Term from any third party claim, including:

(i) administrative fines imposed by a supervisory authority; and
(ii) compensation which is ordered by a supervisory authority, tribunal or court to be paid to a data subject;

“DP Contacts” has the meaning set out in clause 11.5;
“Fees” has the meaning set out in the Contract;  
“GDPR” means the European Regulation (EU) 2016/679 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation);
“GDPR Date” means from when the GDPR applies on 25 May 2018;
“Security Incident” means a confirmed breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, Client Personal Data transmitted, stored or otherwise processed by SmartFocus or its Subprocessors of which SmartFocus becomes aware;
“Services” means the SmartFocus Software Services provided to you by SmartFocus under the SmartFocus Software Services Agreement or the Professional Services provided to you by SmartFocus under the SmartFocus Master Services Agreement (as appropriate);
“SmartFocus” (also referred to as “we” or “us” or “our”) means the SmartFocus entity set out on the Contract and Sales Order to which this Agreement relates;
“SmartFocus DP Contact” has the meaning as set out in clause 11.5;
“SmartFocus Information Security Policy” means our Information Security Policy available on the Client pages of our Services;
“Subprocessor” has the meaning set out in clause 4 of this Agreement.
The terms "personal data", "data processor/processor", “processing”, "data controller/controller”, “data subject” “data protection impact assessment” and “supervisory authority” will have the meaning given to them in the relevant Data Protection Laws.
Reference to applicable laws (including the Data Protection Laws) will be replaced with or incorporate (as the case may be) references to any applicable laws replacing, amending, extending, re-enacting or consolidating such applicable law.
The word "including", “include”, “in particular”, “for example” or similar expressions will be read as  providing a non-exhaustive list.


SCHEDULE 1
Data Processing Details

Subject-matter of Processing.
Delivery of multi channel marketing  campaigns, providing data analytics and delivery of transactional messages.

Duration of the processing.
SmartFocus will process Client Personal Data for the duration of the Agreement, unless otherwise agreed in writing. 

Nature and Purpose of Processing
SmartFocus will process Client Personal Data as necessary to perform the Services as set out in the Contract and the terms of this Agreement, and as further instructed by Client in its use of the Services, unless otherwise agreed in writing. 

Categories of Data Subjects
Client may submit Client Personal Data to the Services, including, but not limited to the following categories of data subjects:

  • Client’s prospects;
  • Customers;
  • Client’s subscribers.

The categories of Client Personal Data received by SmartFocus in connection with performance of the Services are defined and controlled by Client in its sole discretion (subject to any restrictions in the Contract). 

Type of Personal Data
Client may submit Client Personal Data to the Services, including, but not limited to Client Personal Data relating to the following types of data:

  • Name;
  • Email address, phone number, postal address, IP address;
  • Data of birth;
  • Gender;
  • Unsubscribe and consent data;
  • Behavioural data;
  • Interaction data;
  • Customer profiles and segmentation;
  • Transaction data.

The types of Client Personal Data received by SmartFocus in connection with performance of the Services are defined and controlled by Client in its sole discretion (subject to any restrictions in the Contract). 

In the event that the Client varies the categories of processing, as detailed in this Schedule 1, in using the Services, then the details of the processing specified in this Schedule 1 should be read together with the details of processing set out in the Services.

 

SCHEDULE 2
STANDARD CONTRACTUAL CLAUSES (PROCESSORS)


For the purposes of Article 26(2) of Directive 95/46/EC for the transfer of personal data to processors established in third countries which do not ensure an adequate level of protection
The entity identified as “Client” on the Sales Order to which this Data Processing Agreement (with standard EU contractual clauses attached) relates 
(the “data exporter”)
AND
SmartFocus, Inc 
Address: Sunset Corporate Campus BLDG1 13810 SE Eastgate Way, Suite 550 Bellevue, WA  98005
Tel: +1 (425) 460 7776 ;  e-mail: dataprotection@smartfocus.com
Other information needed to identify the organisation. Not applicable.
(the “data importer”)
each a “party”; together “the parties”

HAVE AGREED on the following Contractual Clauses (the Clauses) in order to adduce adequate safeguards with respect to the protection of privacy and fundamental rights and freedoms of individuals for the transfer by the data exporter to the data importer of the personal data specified in Appendix 1.


Clause 1

Definitions
For the purposes of the Clauses:

(a)'personal data', 'special categories of data', 'process/processing', 'controller', 'processor', 'data subject' and 'supervisory authority' shall have the same meaning as in Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data;
(b)'the data exporter' means the controller who transfers the personal data;
(c)'the data importer' means the processor who agrees to receive from the data exporter personal data intended for processing on his behalf after the transfer in accordance with his instructions and the terms of the Clauses and who is not subject to a third country's system ensuring adequate protection within the meaning of Article 25(1) of Directive 95/46/EC;
(d)'the subprocessor' means any processor engaged by the data importer or by any other subprocessor of the data importer who agrees to receive from the data importer or from any other subprocessor of the data importer personal data exclusively intended for processing activities to be carried out on behalf of the data exporter after the transfer in accordance with his instructions, the terms of the Clauses and the terms of the written subcontract;
(e)'the applicable data protection law' means the legislation protecting the fundamental rights and freedoms of individuals and, in particular, their right to privacy with respect to the processing of personal data applicable to a data controller in the Member State in which the data exporter is established;
(f)'technical and organisational security measures' means those measures aimed at protecting personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing.

Clause 2

Details of the transfer
The details of the transfer and in particular the special categories of personal data where applicable are specified in Appendix 1 which forms an integral part of the Clauses.

Clause 3

Third-party beneficiary clause
1.The data subject can enforce against the data exporter this Clause, Clause 4(b) to (i), Clause 5(a) to (e), and (g) to (j), Clause 6(1) and (2), Clause 7, Clause 8(2), and Clauses 9 to 12 as third-party beneficiary. 
2.The data subject can enforce against the data importer this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where the data exporter has factually disappeared or has ceased to exist in law unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law, as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity. 
3.The data subject can enforce against the subprocessor this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity. Such third-party liability of the subprocessor shall be limited to its own processing operations under the Clauses. 
4.The parties do not object to a data subject being represented by an association or other body if the data subject so expressly wishes and if permitted by national law. 

Clause 4

Obligations of the data exporter
The data exporter agrees and warrants: 

(a)that the processing, including the transfer itself, of the personal data has been and will continue to be carried out in accordance with the relevant provisions of the applicable data protection law (and, where applicable, has been notified to the relevant authorities of the Member State where the data exporter is established) and does not violate the relevant provisions of that State;
(b)that it has instructed and throughout the duration of the personal data processing services will instruct the data importer to process the personal data transferred only on the data exporter's behalf and in accordance with the applicable data protection law and the Clauses;
(c)that the data importer will provide sufficient guarantees in respect of the technical and organisational security measures specified in Appendix 2 to this contract;
(d)that after assessment of the requirements of the applicable data protection law, the security measures are appropriate to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing, and that these measures ensure a level of security appropriate to the risks presented by the processing and the nature of the data to be protected having regard to the state of the art and the cost of their implementation;
(e)that it will ensure compliance with the security measures;
(f)that, if the transfer involves special categories of data, the data subject has been informed or will be informed before, or as soon as possible after, the transfer that its data could be transmitted to a third country not providing adequate protection within the meaning of Directive 95/46/EC;
(g)to forward any notification received from the data importer or any subprocessor pursuant to Clause 5(b) and Clause 8(3) to the data protection supervisory authority if the data exporter decides to continue the transfer or to lift the suspension;
(h)to make available to the data subjects upon request a copy of the Clauses, with the exception of Appendix 2, and a summary description of the security measures, as well as a copy of any contract for subprocessing services which has to be made in accordance with the Clauses, unless the Clauses or the contract contain commercial information, in which case it may remove such commercial information;
(i)that, in the event of subprocessing, the processing activity is carried out in accordance with Clause 11 by a subprocessor providing at least the same level of protection for the personal data and the rights of data subject as the data importer under the Clauses; and
(j)that it will ensure compliance with Clause 4(a) to (i).

Clause 5

Obligations of the data importer
The data importer agrees and warrants:

(a)to process the personal data only on behalf of the data exporter and in compliance with its instructions and the Clauses; if it cannot provide such compliance for whatever reasons, it agrees to inform promptly the data exporter of its inability to comply, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;
(b)that it has no reason to believe that the legislation applicable to it prevents it from fulfilling the instructions received from the data exporter and its obligations under the contract and that in the event of a change in this legislation which is likely to have a substantial adverse effect on the warranties and obligations provided by the Clauses, it will promptly notify the change to the data exporter as soon as it is aware, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;
(c)that it has implemented the technical and organisational security measures specified in Appendix 2 before processing the personal data transferred;
(d)that it will promptly notify the data exporter about:

(i)any legally binding request for disclosure of the personal data by a law enforcement authority unless otherwise prohibited, such as a prohibition under criminal law to preserve the confidentiality of a law enforcement investigation,
(ii)any accidental or unauthorised access, and
(iii)any request received directly from the data subjects without responding to that request, unless it has been otherwise authorised to do so;

(e)to deal promptly and properly with all inquiries from the data exporter relating to its processing of the personal data subject to the transfer and to abide by the advice of the supervisory authority with regard to the processing of the data transferred;
(f)at the request of the data exporter to submit its data processing facilities for audit of the processing activities covered by the Clauses which shall be carried out by the data exporter or an inspection body composed of independent members and in possession of the required professional qualifications bound by a duty of confidentiality, selected by the data exporter, where applicable, in agreement with the supervisory authority;
(g)to make available to the data subject upon request a copy of the Clauses, or any existing contract for subprocessing, unless the Clauses or contract contain commercial information, in which case it may remove such commercial information, with the exception of Appendix 2 which shall be replaced by a summary description of the security measures in those cases where the data subject is unable to obtain a copy from the data exporter;
(h)that, in the event of subprocessing, it has previously informed the data exporter and obtained its prior written consent;
(i)that the processing services by the subprocessor will be carried out in accordance with Clause 11;
(j)to send promptly a copy of any subprocessor agreement it concludes under the Clauses to the data exporter.

Clause 6

Liability
1.The parties agree that any data subject, who has suffered damage as a result of any breach of the obligations referred to in Clause 3 or in Clause 11 by any party or subprocessor is entitled to receive compensation from the data exporter for the damage suffered.
2.If a data subject is not able to bring a claim for compensation in accordance with paragraph 1 against the data exporter, arising out of a breach by the data importer or his subprocessor of any of their obligations referred to in Clause 3 or in Clause 11, because the data exporter has factually disappeared or ceased to exist in law or has become insolvent, the data importer agrees that the data subject may issue a claim against the data importer as if it were the data exporter, unless any successor entity has assumed the entire legal obligations of the data exporter by contract of by operation of law, in which case the data subject can enforce its rights against such entity.
The data importer may not rely on a breach by a subprocessor of its obligations in order to avoid its own liabilities.
3.If a data subject is not able to bring a claim against the data exporter or the data importer referred to in paragraphs 1 and 2, arising out of a breach by the subprocessor of any of their obligations referred to in Clause 3 or in Clause 11 because both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, the subprocessor agrees that the data subject may issue a claim against the data subprocessor with regard to its own processing operations under the Clauses as if it were the data exporter or the data importer, unless any successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law, in which case the data subject can enforce its rights against such entity. The liability of the subprocessor shall be limited to its own processing operations under the Clauses.

Clause 7

Mediation and jurisdiction
1.The data importer agrees that if the data subject invokes against it third-party beneficiary rights and/or claims compensation for damages under the Clauses, the data importer will accept the decision of the data subject:

(a)to refer the dispute to mediation, by an independent person or, where applicable, by the supervisory authority;
(b)to refer the dispute to the courts in the Member State in which the data exporter is established.

2.The parties agree that the choice made by the data subject will not prejudice its substantive or procedural rights to seek remedies in accordance with other provisions of national or international law.

Clause 8

Cooperation with supervisory authorities
1.The data exporter agrees to deposit a copy of this contract with the supervisory authority if it so requests or if such deposit is required under the applicable data protection law.
2.The parties agree that the supervisory authority has the right to conduct an audit of the data importer, and of any subprocessor, which has the same scope and is subject to the same conditions as would apply to an audit of the data exporter under the applicable data protection law.
3.The data importer shall promptly inform the data exporter about the existence of legislation applicable to it or any subprocessor preventing the conduct of an audit of the data importer, or any subprocessor, pursuant to paragraph 2. In such a case the data exporter shall be entitled to take the measures foreseen in Clause 5 (b).

Clause 9

Governing Law
The Clauses shall be governed by the law of the Member State in which the data exporter is established.

Clause 10

Variation of the contract
The parties undertake not to vary or modify the Clauses. This does not preclude the parties from adding clauses on business related issues where required as long as they do not contradict the Clause.

Clause 11

Subprocessing
1.The data importer shall not subcontract any of its processing operations performed on behalf of the data exporter under the Clauses without the prior written consent of the data exporter. Where the data importer subcontracts its obligations under the Clauses, with the consent of the data exporter, it shall do so only by way of a written agreement with the subprocessor which imposes the same obligations on the subprocessor as are imposed on the data importer under the Clauses. Where the subprocessor fails to fulfil its data protection obligations under such written agreement the data importer shall remain fully liable to the data exporter for the performance of the subprocessor's obligations under such agreement. 
2.The prior written contract between the data importer and the subprocessor shall also provide for a third-party beneficiary clause as laid down in Clause 3 for cases where the data subject is not able to bring the claim for compensation referred to in paragraph 1 of Clause 6 against the data exporter or the data importer because they have factually disappeared or have ceased to exist in law or have become insolvent and no successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law. Such third-party liability of the subprocessor shall be limited to its own processing operations under the Clauses.
3.The provisions relating to aspects for subprocessing of the contract referred to in paragraph 1 shall be governed by the law of the Member State in which the data exporter is established.
4.The data exporter shall keep a list of subprocessing agreements concluded under the Clauses and notified by the data importer pursuant to Clause 5 (j), which shall be updated at least once a year. The list shall be available to the data exporter's data protection supervisory authority. 

Clause 12

Obligation after the termination of personal data processing services
1.The parties agree that on the termination of the provision of data processing services, the data importer and the subprocessor shall, at the choice of the data exporter, return all the personal data transferred and the copies thereof to the data exporter or shall destroy all the personal data and certify to the data exporter that it has done so, unless legislation imposed upon the data importer prevents it from returning or destroying all or part of the personal data transferred. In that case, the data importer warrants that it will guarantee the confidentiality of the personal data transferred and will not actively process the personal data transferred anymore.
2.The data importer and the subprocessor warrant that upon request of the data exporter and/or of the supervisory authority, it will submit its data processing facilities for an audit of the measures referred to in paragraph 1.

On behalf of the data exporter:  
Name (written out in full): 
Position: 
Address: 
Other information necessary in order for the contract to be binding: 
Signature: 

On behalf of the data importer:  
Name (written out in full): Christopher Allan
Position: President
Address: Sunset Corporate Campus BLDG1 ,13810 SE Eastgate Way, Suite 550 Bellevue, WA  98005
Other information necessary in order for the contract to be binding: 
 


APPENDIX 1 TO THE STANDARD CONTRACTUAL CLAUSES
Data exporter

The data exporter is identified as “Client” on the Sales Order to which these Standard Contractual Clauses are annexed. The Client is using the Services as described in the Sales Order, the Statement of Work and the contract for such Services.
Data importer    

The data importer is SmartFocus, a provider of services to the data exporter.  
The following are described in the Contract, Schedule 1 of the Data Processing Agreement and the Client’s use of the Services:  

(a) data subjects;
(b) categories of data; and        
(c) purposes of the transfer / Processing operations.

APPENDIX 2 TO THE STANDARD CONTRACTUAL CLAUSES


Description of the technical and organisational security measures implemented by the data importer in accordance with Clauses 4(d) and 5(c) (or document/legislation attached):
The data importer has implemented and will maintain appropriate technical and organizational measures to protect the Personal Data, against misuse and accidental loss or destruction as set out in the SmartFocus Information Security Policy.