This agreement (the Agreement) contains the complete terms and conditions between
Payday Ventures Limited
86-90 Paul Street, London, EC2A 4NE
and you (you and your), regarding: (i) your application to participate as an affiliate in the Company’s affiliate network program (the Network); and (ii) your participatio in the Network and provision of the marketing services in respect of the Offers. The Company manages the Network, which allows Advertisers to advertise their Offers via the Network to Publishers, who promote such offrs to potential End Users. The Company shall receive a Commission payment for every Action undertaken by an End User who is referred to the Advertiser by the Publisher in accordance with the Terms of this Agreement. By marketing the I have read and agree to the terms and conditions box (or similar wording) you accept the terms and conditions of this agreement.
1. DEFINITIONS AND INTERPRETATION
1.1. In this Agreement (except where the context otherwise requires) capitalized words and expressions shall have the meanings set out below:
Action means installs, clicks, sales, impressions, downloads, registrations, subscriptions, etc. as defined in the applicable Offer by the Advertiser, provided that the Action was performed by an actual human End User (which is not computer generated) in the normal course of using any device.
Advertiser means a person or entity who advertises their Offers via the Network and receive a Commission upon an Action by an End User;
Applicable Laws means all applicable laws, directives, regulations, rules, mandatory codes of practice and/or conduct, judgments, judicial orders, ordinances and decrees imposed by law or any competent governmental or regulatory authority or agency;
Application has the meaning given in clause 2.1;
Commission has the meaning given in clause 5.1;
Confidential Information means all information in whatever form (including without limitation written, oral, visual and electronic) which has been or may be disclosed, before on and/or after the date of this Agreement by the Company;
Data Protection Laws means any and/or all applicable domestic and foreign laws, rules, directives and regulations, on any local, provincial, state or deferral or national level, pertaining to data privacy, data security and/or the protection of personal data, including the Data Protection Directive 95/46/EC and the Privacy and Electronic Communications Directive 2002/58/EC (and respective local implementing laws) concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications), including any amendments or replacements to them, including the Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (GDPR);
End User means any end user who is not an existing client of the Advertiser and who completes an Action in accordance with the terms of clause 4.1;
Fraudulent Action means any action by you for the purpose of creating an Action using robots, frames, iframes, scripts, or any other means, for the purpose of creating illegitimate Commission;
Group Company means any entity directly or indirectly controlling, controlled by, or under common control with the Company. For the purpose of this definition, control (including, with correlative meanings, the terms controlling, controlled by and under common control with) means the power to manage or direct the affairs of the entity in question, whether by ownership of voting securities, by contract or otherwise;
Intellectual Property Rights shall mean all intangible legal rights, titles and interests evidenced by or embodied in or connected or related to the following: (i) all inventions (whether patentable or unpatentable and whether or not reduced to practice), all improvements thereto, patents and patent applications, and any divisional, continuation, continuation in part, extension, reissue, renewal or re-examination of patent issuing therefrom (including any foreign counterparts), (ii) any work of authorship, copyrightable works (including moral rights); (iii) computer software, including any and all software implementations of algorithms, models, methodologies, artwork and designs, whether in source code or object code, (iv) databases and compilations, including any and all data and collections of data, whether machine readable or otherwise, (v) designs and any applications and registrations thereof , (vi) all trade secrets, Confidential Information and business information, (vii) trademarks, service marks, trade names, certification marks, collective marks, logos, brand names, business names, domain names, corporate names, trade styles and trade dress, get-up, and other designations of source or origin and all and applications and registrations thereof, (viii) all documentation, including user manuals and training materials relating to any of the foregoing and descriptions, flow-charts and other work product used to design, plan, organize and develop any of the foregoing, and (ix) all other proprietary rights, industrial rights and any other similar rights;
Licensed Materials has the meaning given in clause 6.1;
Publisher means a person or entity who promotes the Offers on the Publisher Network;
Publisher Website/(S) means any website (including any device specific versions of such website) or application owned and/or operated by you or on your behalf and which you identify to us and any other marketing methods including without limitation emails and SMS, which the Company approves for use in the Network;
Offers has the meaning given in clause 3.1;
Regulator means any governmental, regulatory and administrative authorities, agencies, commissions, boards, bodies and officials or other regulatory body or agency that has jurisdiction over (or is responsible for or involved in the regulation of) the Company or Group Companies from time to time.
3. PUBLISHER APPLICATION AND REGISTRATION
2.1. To become a Publisher within the Network, you will have to complete and submit an application (which can be accessed here: https://www.leadstackmedia.com/signup/) (Application). The Company may request additional information from you in order to evaluate your Application. The Company may, in its sole discretion, deny your Application to join the Network at any time for any reason.
2.2. Without limiting the generality of the foregoing, the Company may deny or terminate your Application if the Company believes:
the Publisher Websites include any content: (a) which is deemed by the Company to be or which contains unlawful, harmful, threatening, defamatory, obscene, harassing, or racially, ethnically or otherwise objectionable, which by way of example only, might mean that it contains: (i) sexually explicit, pornographic or obscene content (whether in text or graphics); (ii) speech or images that are offensive, profane, hateful, threatening, harmful, defamatory, libellous, harassing or discriminatory (whether based on race, ethnicity, creed, religion, gender, sexual orientation, physical disability or otherwise); (iii) graphic violence; (vi) politically sensitive or controversial issues; or (v) any unlawful behaviour or conduct, (b) which is designed to appeal to persons under the age of 18 or under the minimum legal age in the applicable jurisdictions, (c) which is malicious, harmful or intrusive software including any Spyware, Adware, Trojans, Viruses, Worms, Spy bots, Key loggers or any other form of malware, or (d) which is infringing any third party privacy or Intellectual Property rights, (e) which is using famous persons and/or key opinion leaders and/or any celebs’ name, appellation, picture or voice in any way that infringe their privacy and/or breach any applicable law, among other things, in pre landing pages or sites ; or you may be in breach of any Applicable Laws.
2.3. The Company reserves the right to review your Application and request any relevant documentation from you in evaluating the Application for any reason, including (but not limited to) verifying your identity, personal history, registration details (such as company name and address), your financial transactions and financial standing.2.4. If the Company determines in its sole discretion that you are in breach of clause 2.2 in any way and at any time throughout the term of this Agreement, it may: (i) terminate this Agreement immediately; and (ii) withhold any Commission otherwise payable to you under this Agreement and will no longer be liable to pay such Commission to you.2.5. If you are accepted onto the Network, in consideration for the Commission, you agree to provide to the Company the marketing services in respect of the Offers. You must always provide such services in accordance with the terms of this Agreement.
3. SETTING UP OFFERS
3.1. Upon your acceptance to the Network, the Company will enable you to access banner advertisements, button links, text links and other content as determined by the Advertiser which will be associated with the Advertiser on the Company’s system, all of which shall relate and link specifically to the Advertiser (collectively referred to hereinafter as the Offers). You may display such Offers on your Publisher Website(s) provided that you: (i) only do so in accordance with the terms of this Agreement; and (ii) possess the legal right to use the Publisher Websites in relation to the Network.
3.2. You may not promote the Offers in any way that is not truthful, misleading or not in compliance with Applicable Laws.
3.3. You may not modify an Offer, unless you have received prior written consent from the Advertiser to do so. If the Company determines that your use of any Offers is not in compliance with the terms of this Agreement, it may take measures as to render such Offers inoperative.
3.4. If the Company requests any change to your use and positioning of the Offers and/or Licensed Materials or cease using the Offers and/or Licensed Materials, you must promptly comply with that request.
3.5. You will immediately comply with all of the Company’s instructions which may be notified to you from time to time regarding the use and placement of the Offers, Licensed Materials and your marketing efforts in general.
3.6. If you breach any of the provisions in this clause 3 in any way and at any time, the Company may: (i) terminate this Agreement immediately; and (ii) retain any Commission otherwise payable to you under this Agreement and will no longer be liable to pay such Commission to you.
4. END USERS AND ACTIONS
4.1. potential End User becomes an End User once he or she performs an Action and: (i) is promptly verified and approved by the Advertiser; and (ii) meets any other qualification criteria which the Advertiser may apply from time to time per territory at its discretion.
4.2. Neither you nor any of your relatives (or where the person entering into this Agreement is a legal entity, neither the directors, officers nor employees of such company or the relatives of such individuals) are eligible to register/sign/deposit to the Network and Offers. Should you or any of your relatives attempt to do so the Company may terminate this Agreement and retain all Commissions otherwise payable to you. For the purposes of this clause, the term relative shall mean any of the following: spouse, partner, parent, child or sibling.
4.3. You acknowledge and accept that the Company’s calculation of the number of Actions shall be the sole and authoritative measurement and shall not be open to review or appeal. The Company shall notify you of the number of End User and amount of Commission through the Company’s back-office management system. You will be granted access to such management system upon the approval of your Application.
4.4. To ensure accurate tracking, reporting and Commission accrual, you are responsible for ensuring that the Offers promoted on your Publisher Websites and they are properly formatted throughout the term of this Agreement.
5.1. The commission rate payable to you under this Agreement shall be based on the Offers you are promoting and shall be provided to you via the My Account link, which you may access through the Company’s back-office management system (the Commission). The Commission may be modified in accordance with the terms of this Agreement. Your continued advertising of the Offers and the Licensed Materials will constitute your agreement to the Commission and any changes implemented by the Company.
5.2. You acknowledge and agree that a different payment scheme may apply to other Publishers who are already being paid by the Company in accordance with an alternative payment scheme or in other particular cases as determined at the Company’s sole discretion from time to time.
5.3. In consideration of your provision of the marketing services in accordance with the terms of this Agreement, the Company shall pay you the Commission on a monthly basis, within approximately 10 days after the end of each calendar month, unless otherwise agreed by the parties in an email. Payments of Commission shall be made directly to you as per your preferred payment method and to the account detailed by you as part of your application process (the Designated Account). It is your responsibility to ensure that the details provided by you are both accurate and complete and the Company will have no obligation whatsoever to verify the accuracy and completeness of such details. In the event that you provide the Company with incorrect or incomplete details or you have failed to update your details and as a result your Commission is paid to an incorrect Designated Account, the Company shall cease to be liable to you for any such Commission. Without derogating from the foregoing, if the Company is not able to transfer the Commission to you, the Company reserves the right to deduct from the Commission a reasonable amount to reflect the required investigation and additional work including without limitation the administrative burden created by your having provided incorrect or incomplete details. Should the Company not be able to transfer any Commission to you as a result of any incomplete or incorrect details of your Designated Account, or for any other reason beyond the control of the Company, the Company reserves the right to withhold any such Commission and will no longer be liable to pay such Commission.
5.4. The Company reserves the right to request that you provide the Company with written documentation verifying all your beneficiaries and your Designated Account at any time, including upon registration and when you make any change to your Designated Account. The Company is not obliged to make any payments until verification is completed to its satisfaction. If the Company believes at its sole discretion that you have failed to provide it with such verification, the Company retains the right to terminate this Agreement immediately and you shall not be entitled to receive any Commission which has accrued to your benefit up until such time or thereafter.
5.5. The Company reserves the right to take action against you should you or any Offers used by you show patterns of manipulating and/or abusing the Network in any way whatsoever. If the Company determines that such conduct is being undertaken, it may withhold and keep any Commission payments which would have otherwise been payable to you under this Agreement and terminate this Agreement with immediate effect.
5.6. The Company hereby retains the right to convert the commission scheme by which you are, have been or will be paid.
5.7. The Company shall be entitled to set-off from the amount of Commission to be paid to you any associated costs related to the transfer of such Commission.
5.8. If the Commission to be paid to you in any calendar month is less than $500 (the Minimum Amount), the Company shall not be obliged to make the payment to you and may postpone payment of this amount and combine this with a payment for a subsequent month(s) until such time as the total Commission is equal to or greater than the Minimum Amount.
5.9. The Company retains the right to review your activity under this Agreement for possible Fraudulent Action, whether such Fraudulent Action is on your part or the part of an End User. Any review period will not exceed 30 days. During this review period, the Company shall have the right to withhold any Commission otherwise payable to you. Any incidence of Fraudulent Action on your part (or the part of an End User) constitutes a breach of this Agreement and the Company retains the right to terminate this Agreement immediately and retain all Commission otherwise payable to you and will no longer be liable to pay such Commission to you. The Company also retains the right to set-off from future Commissions payable to you any amounts already received by you which can be shown to have been generated by Fraudulent Action.
5.10. Your account is solely for your benefit. You shall not allow any third party to use your account, password or identity to access or use the Network and you shall be fully responsible for any activities undertaken on your account by a third party. You will not reveal your account username or password to any person and you shall take all steps to ensure that such details are not revealed to any person. You shall inform the Company immediately if you suspect that your account is being misused by a third party and/or any third party has access to your account username or password. For the avoidance of doubt, the Company shall not be liable for any activities undertaken on your account by a third party or for any damages that may arise therefrom.
5.11. The Company reserves the right, at its sole discretion, to immediately cease any or all marketing efforts in certain jurisdictions and you shall immediately cease marketing to persons in such jurisdictions. The Company will not be liable to pay you any Commission which would have otherwise been payable to you under this Agreement in respect of such jurisdictions.
5.12. Without derogating from clause 5.11, the Company reserves the right, at its sole discretion, to immediately cease paying you Commission with respect to End Users Actions generated by you from a specific jurisdiction and you shall immediately cease marketing to persons in such jurisdiction.
6. INTELLECTUAL PROPERTY
6.1. You are granted a non-transferable, non-exclusive, revocable license to place the Offers on the Publisher Websites during the term of the Agreement, and solely in connection with the Offers, to use certain content and material as contained in the Offers (collectively, Licensed Materials), solely for the purpose of generating potential End Users.
6.2. You are not permitted to alter, modify or change the Licensed Materials in any way whatsoever.
6.3. You may not use any Licensed Materials for any purpose whatsoever other than generating potential by End Users.
6.4. The Company or the Advertiser reserve all of its intellectual property rights in the Licensed Materials. The Company or the Advertiser may revoke your license to use the Licensed Materials at any time by written notice to you, whereupon you shall immediately destroy or deliver up to the Company or the Advertiser all such materials that are in your possession. You acknowledge that, except for the license which may be granted to you in connection hereto, you have not acquired and will not acquire any right, interest or title to the Licensed Materials by reason of this Agreement or your activities here-under. The aforementioned license shall terminate upon the termination of this Agreement.
7. OBLIGATIONS REGARDING YOUR PUBLISHER WEBSITES AND MARKETING MATERIALS
7.1. You will be solely responsible for the technical operation of your Publisher Website(s) and the accuracy and appropriateness of materials posted on your Publisher Website(s).
7.2. Other than use of the Offers, you agree that none of your Publisher Website(s) will contain any content of the websites of any of the Group Companies or any materials, which are proprietary to the Company or its Group Companies, except with the Company’s prior written permission. In particular, you are not permitted to register a domain name that includes, incorporates or consists of the Companies, the Group Companies or its affiliates trademarks or any domain name that is confusingly or materially similar to such trademarks.
7.3. You will not use any unsolicited or spam messages to promote the Offers, Licensed Materials or any websites owned or operated by any of the Group Companies.
7.4. If the Company receives a complaint that you have been engaging in any practices which are in breach of Applicable Laws, including, without limitation, sending spam messages or unsolicited messages (Prohibited Practices), you hereby agree that it may provide to the party making the complaint any details required for the complaining party to contact you directly in order for you to resolve the complaint. The details which the Company may provide to the party making the complaint, may include your name, email address, postal address and telephone number. You hereby warrant and undertake that you will immediately cease engaging in Prohibited Practices and make every effort to resolve the complaint. In addition, the Company reserves all of its rights in this matter including without limitation the right to immediately terminate this Agreement and your participation in the Network and to set off or charge you for all claims, damages, expenses, costs, or fines incurred or suffered by the Company or any Group Companies in relation to this matter. Nothing stated or omitted herein shall in any manner prejudice any such rights.
7.5. You undertake to immediately comply with all instructions and guidelines provided by the Company or the Advertiser in relation to your activities in marketing and promoting the Offers including, without limitation, any instruction received from the Company or the Advertiser requesting you to post on the Publisher Websites information regarding new features and promotions on the Offers. If you are in breach of the foregoing, the Company may terminate this Agreement and your participation in the Network immediately and/or withhold any Commission otherwise owed to you and shall no longer be liable to pay such Commission to you.
7.6. You shall provide such information to the Company (and co-operate with all requests and investigations) as the Company may reasonably require in order to satisfy any information reporting, disclosure and other related obligations to any Regulator from time to time, and shall co-operate with all such Regulators directly or through the Company, as required by the Company.
7.8. In the event that you breach any of the clauses 7.1 to 7.8 (inclusive), in any way and at any time the Company may: (i) terminate this Agreement immediately; and (ii) retain any Commission otherwise payable to you under this Agreement and will no longer be liable to pay such Commission to you.
8.1. The term of this Agreement shall commence upon your acceptance of the terms and conditions of this Agreement as set out above and will continue in force until terminated in accordance with its terms by either party.
8.2. At any time, either party may immediately terminate this Agreement, with or without cause, by giving the other party written notice of termination (via e-mail).
8.3. In the event that you do not log into your account for 60 consecutive days, we may terminate this Agreement without notice to you.
8.4. Following termination of this Agreement, the Company may withhold the final payment of any Commission otherwise payable to you for a reasonable time to ensure that the correct amount of Commission is paid.
8.5. Upon the termination of this Agreement for any reason, you will immediately cease use of, and remove from your Website(s), all Offers and Licensed Materials and any other names, marks, symbols, copyrights, logos, designs, or other proprietary designations or properties owned, developed, licensed or created by the Company and/or provided by or on behalf of the Company to you pursuant to this Agreement or in connection with the Network. Following the termination of this Agreement and the Company’s payment to you of all Commissions due at such time of termination, the Company shall have no obligation to make any further payments to you.
8.6. The provisions of clauses 6, 8, 10, 12, 14, 15, as well as any other provision of this Agreement that contemplates performance or observance subsequent to termination or expiration of this Agreement will survive expiration or termination of this Agreement and continue in full force and effect for the period set forth therein, or if no period is set forth therein, indefinitely.
9.1. The Company may modify any of the terms and conditions contained in this Agreement, at any time at its sole discretion. You agree that posting a change of terms notice or a new agreement on the Company’s website is considered sufficient provision of notice and such modifications shall be effective as of the date of posting.
9.2. If any modification is unacceptable to you, your sole recourse is to terminate this Agreement and your continued participation in the Network following the posting of a change notice or new agreement on the Company’s website will constitute binding acceptance by you of the change. Due to the above, you should frequently visit the Company’s website and review the terms and conditions of this Agreement.
10. LIMITATION OF LIABILITY
10.1. Nothing in this clause shall exclude or limit either party’s liability for death or personal injury resulting from such party’s gross negligence or for fraud, fraudulent misstatement or fraudulent misrepresentation.
10.2. The Company shall not be liable (in contract, tort (including negligence) or for breach of statutory duty or in any other way) for any: actual or expected indirect, special or consequential loss or damage;
loss of opportunity or loss of anticipated savings;
loss of contracts, business, profits or revenues;
loss of goodwill or reputation; or
loss of data.
10.3. The Company’s aggregate liability in respect of any loss or damage suffered by you and arising out of or in connection with this Agreement, whether in contract, tort (including negligence) or for breach of statutory duty or in any other way, shall not exceed the total Commission paid or payable to you under this Agreement during the six (6) months preceding the circumstances giving rise to the claim.
10.4. You acknowledge and agree that the limitations contained in this clause 10 are reasonable in the circumstances and that you have taken independent legal advice regarding the same.
11. RELATIONSHIP OF PARTIES
You and the Company are independent contractors, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties.
THE COMPANY MAKES NO EXPRESS OR IMPLIED WARRANTIES OR REPRESENTATIONS WITH RESPECT TO THE NETWORK (INCLUDING WITHOUT LIMITATION WARRANTIES OF FITNESS, MERCHANTABILITY, NON-INFRINGEMENT, OR ANY IMPLIED WARRANTIES ARISING OUT OF A COURSE OF PERFORMANCE, DEALING, OR TRADE USAGE). IN ADDITION, THE COMPANY MAKES NO REPRESENTATION THAT THE OPERATION OF THE OFFERS OR THE NETWORK WILL BE UNINTERRUPTED OR ERROR-FREE AND WILL NOT BE LIABLE FOR THE CONSEQUENCES OF ANY INTERRUPTIONS OR ERRORS.
13. REPRESENTATIONS AND WARRANTIES
You hereby represent and warrant to the Company that:
you have accepted the terms and conditions of this Agreement, which creates legal, valid and binding obligations on you, enforceable against you in accordance with their terms;
all the information provided by you in your Application is true and accurate;
your entering into, and performance of your obligations under, this agreement will not conflict with or violate the provisions of any agreement to which you are party or breach Applicable Laws;
you have, and will have throughout the term of this Agreement, all approvals, permits and licenses (which includes but is not limited to any approvals, permits and licenses necessary from any applicable Regulator) required to enter this Agreement, participate in the Network or receive payment under this Agreement;
if you are an individual rather than a legal entity, you are an adult of at least 18 years of age; and
you have evaluated the laws relating to your activities and obligations hereunder and you have independently concluded that you can enter this Agreement and fulfil your obligations hereunder without violating any Applicable Laws. You shall comply with applicable Data Protection Laws, and to the extent that you collect and/or share any personal data (as this term is defined under Data Protection Laws) with Company, you hereby agree to the Data Processing Terms, attached herewith as Annex A and incorporated herein by reference.
14.1. The Company may disclose Confidential Information to you as a result of your participation as a Publisher within the Network.
14.2. You may not disclose any Confidential Information to any other person. Notwithstanding the foregoing, you may disclose Confidential Information to the extent: (i) required by law; or (ii) the information has come into the public domain through no fault of your own.
14.3. You shall not make any public announcement with respect to any aspect of this Agreement or your relationship with the Company without the prior written approval of the Company.
15.1. You hereby agree to indemnify, defend and hold harmless the Company, its shareholders, officers, directors, employees, agents, Group Companies, successors and assigns (the Indemnified Parties), from and against any and all claims and all direct, indirect or consequential liabilities (including loss of profits, loss of business, depletion of goodwill and similar losses), costs, proceedings, damages and expenses (including legal and other professional fees and expenses) awarded against, or incurred or paid by, any of the Indemnified Parties, as a result of or in connection with your breach of your obligations, warranties and representations contained in this Agreement.
15.2. The provisions of this clause 15 shall survive termination of this Agreement howsoever arising.
16. ENTIRE AGREEMENT
16.1. The provisions contained in this Agreement and your Application constitute the entire agreement between the parties with respect to the subject matter of this Agreement, and no statement or inducement with respect to such subject matter by any party which is not contained in this Agreement, or the Application shall be valid or binding between the parties.
16.2. The provisions of this clause 15 shall survive termination of this Agreement howsoever arising.
17. INDEPENDENT INVESTIGATION
You acknowledge that you have read this Agreement, have had an opportunity to consult with your own legal advisors if you so desired, and agree to all of its terms and conditions. You have independently evaluated the desirability of participating in the Network and are not relying on any representation, guarantee or statement other than as set forth in this Agreement.
18.1. this Agreement and any matters relating hereto shall be governed by and construed in accordance with the laws of England. The courts of England, will have exclusive jurisdiction over any dispute arising out of or relating to this Agreement and the transactions contemplated thereby.
18.2. Without derogating from the rights of the Company under this Agreement and/or by law, the Company may set off any amount which you owe to it pursuant to this Agreement and/or by law from any sum that you are entitled to receive from the Company, from whatever source.
18.3. You may not assign this Agreement, by operation of law or otherwise, without the Company’s express prior written consent. Subject to that restriction, this Agreement will be binding on, inure to the benefit of, and be enforceable against the parties and their respective successors and assigns. You may not sub-contract or enter into any arrangement whereby another person is to perform any or all of your obligations under this Agreement.
18.4. The Company’s failure to enforce your strict performance of any provision of this Agreement will not constitute a waiver of its right to subsequently enforce such provision or any other provision of this Agreement.
18.5. The Company reserves the right to transfer, assign, sublicense or pledge this Agreement, in whole or in part, without your consent: (i) to any Group Company, or (ii) to any entity in the event of a merger, sale of assets or other similar corporate transaction in which the Company may be involved in. The Company will notify you of any such transfer, assignment, sublicense or pledge by publishing the new version of this Agreement on the Company’s website.
18.6. Any clause, provision, or portion of this Agreement specifically ruled invalid, void, illegal or otherwise unenforceable by a competent court, will be amended to the extent required to render it valid, legal and enforceable, or deleted if no such amendment is feasible, and such amendment or deletion will not affect the enforceability of the other provisions hereof.
18.7. In this Agreement, unless the context otherwise requires, words importing the singular include the plural and vice versa, and words importing the masculine gender include the feminine and neuter and vice versa.
18.8. Any phrase introduced by the terms including, include or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
19. GOVERNING LAW
This agreement will be governed, construed, and enforced in accordance with the laws of the United Kingdom of Great Britain and Northern Ireland, without regard to its conflict of laws rules.
ANNEX A DATA PROCESSING TERMS
Publisher and Company are agreeing to these Data Protection Terms (DPA). This DPA is entered into by Publisher and Company and supplement the Agreement.
1.1. This DPA reflect the party’s agreement on the processing of Personal Data in connection with the Data Protection Laws.1.2. Any ambiguity in this DPA shall be resolved to permit the parties to comply with all Data Protection Laws.1.3. In the event and to the extent that the Data Protection Laws impose stricter obligations on the parties than under this DPA, the Data Protection Laws shall prevail
2. Definitions and Interpretation
2.1. In this DPA:
Data Subject means a data subject to whom Personal Data relates.
Personal Data means any personal data that is processed by a party under the Agreement in connection with its provision or use (as applicable) of the services.
Security Incident shall mean any accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Personal Data. For the avoidance of doubt, any Personal Data Breach will comprise a Security Incident.
The terms controller, processing and processor as used in this have the meanings given in the GDPR.
Any reference to a legal framework, statute or other legislative enactment is a reference to it as amended or re-enacted from time to time.
3. Application of this DPA
3.1. This DPA will only apply to the extent all of the following conditions are met:
3.1.1. Company processes Personal Data that is made available by the Publisher in connection with the Agreement.
3.2. This DPA will only apply to the services for which the parties agreed to in the Agreement, which incorporates the DPA by reference.
3.2.1. The Data Protection Laws applies to the processing of Personal Data.
4. Roles and Restrictions on Processing
4.1 Independent Controllers. Each party is an independent controller of Personal Data under the Data Protection Laws;
will individually determine the purposes and means of its processing of Personal Data; and
will comply with the obligations applicable to it under the Data Protection Laws with respect to the processing of Personal Data.
4.2. Restrictions on Processing. Section 4.1 (Independent Controllers) will not affect any restrictions on either party’s rights to use or otherwise process Personal Data under the Agreement.
4.3. Sharing of Personal Data. In performing its obligations under the Agreement, a party may provide Personal Data to the other party. Each party shall process Personal Data only for (i) the purposes set forth in the Agreement or as (ii) otherwise agreed to in writing by the parties, provided such processing strictly complies with (iii) Data Protection Laws, (ii) Relevant Privacy Requirements and (iii) its obligations under this Agreement (the Permitted Purposes). Each Party shall not share any Personal Data with the other Party (i) that contains sensitive data; or (ii) that contains Personal Data relating to children under 16 years.
4.5. Data Subject Rights. It is agreed that where either party receives a request from a Data Subject in respect of Personal Data controlled by such Party, then such Party shall be responsible to exercise the request, in accordance with Data Protection Laws.
5. Personal Data Transfers
5.1. Transfers of Personal Data Out of the European Economic Area. Either party may transfer Personal Data outside the European Economic Area if it complies with the provisions on the transfer of personal data to third countries in the Data Protection Laws (such as through the use model clauses or transfer of Personal Data to jurisdictions as may be approved as having adequate legal protections for data by the European Commission.
6. Protection of Personal Data.
The parties will provide a level of protection for Personal Data that is at least equivalent to that required under Data Protection Laws. Both parties shall implement appropriate technical and organisational measures to protect the Personal Data. In the event that a party suffers a confirmed Security Incident, each party shall notify the other party without undue delay and the parties shall cooperate in good faith to agree and action such measures as may be necessary to mitigate or remedy the effects of the Security Incident.