This agreement (“Agreement”) is made and entered as of ________________, 20___ (“Effective Date”), by and between NEXUDUS LIMITED (“Nexudus”), a company incorporated in England having its registered address at 1 College Yard, 56 Winchester Avenue, London, NW6 7UA and [PARTNER] (“Partner”), a company incorporated in [England] having its registered address at [PARTNER ADDRESS]. (Nexudus and Partner are sometimes referred to individually as a “Party” and collectively as “Parties”).
WHEREAS, Partner desires to market the Nexudus Platform (as defined below) in consideration for receipt of certain commission payments;
NOW THEREFORE, in consideration of the premises, the mutual covenants, agreements and respective representations and warranties contained herein, and other good and valuable consideration, the receipt and sufficiency for which are hereby acknowledged, the Parties hereto agree as follows:
Capitalized terms shall have the following meanings, unless set forth elsewhere in this Agreement:
1.1 “Authorised Customer” means a Potential Customer that Partner has registered via the registration process outlined in Section 2.1(a) and Nexudus has accepted, in its sole discretion.
1.2 “Commission” has the meaning given to it in paragraph 1 of Exhibit A (Commission Payments).
1.3 “Confidential Information” means all information disclosed by the Disclosing Party to the Receiving Party and which is designated as confidential or proprietary by the Disclosing Party or which the Receiving Party would reasonably understand to be confidential or proprietary, including without limitation, technical, marketing, financial, employee, and planning information. However, Confidential Information shall not include any information or material: (a) that is generally known or becomes generally known to the public without impropriety; (b) that was independently developed by the Receiving Party without impropriety; (c) that is received from a third party who obtained such Confidential Information without impropriety; or (d) whose disclosure is compelled by law.
1.4 “Contract Year” means each [one-year] licence term of the Customer Agreement, and “First Contract Year” shall be construed accordingly.
1.5 “Customer Agreement” means Nexudus’ standard form end user licence agreement pursuant to which Nexudus grants users the right to access and use the Nexudus Platform and provides Nexudus Services (where applicable).
1.6 “Customer Documentation” means the documentation provided by Nexudus to the Partner for distribution to the Authorised Customers, which sets out the technical instructions relating to the implementation, use, and ongoing support of the Nexudus Platform.
1.7 “Customer Implementation Services” means, where applicable, the implementation services provided by Partner to Authorised Customers who have entered into a Customer Agreement with Nexudus, as further described in the Scope of Work.
1.8 “Customer Support Services” means, where applicable, the support services provided by Partner to Authorised Customers who have entered into a Customer Agreement with Nexudus, as further described in the Scope of Work.
1.9 “Initial Term” has the meaning given to it in Section 10.1.
1.10 “Intellectual Property Rights” means any and all present and future worldwide rights in any copyrights, trademarks, database rights, trade secrets, patents, patent applications, and any moral rights and other proprietary rights recognized by the laws of any country.
1.11 “Nexudus Platform” means the platform “Nexudus Spaces” hosted and operated by Nexudus.
1.12 “Nexudus Portal” means the web portal located at
https://platform.nexudus.com/reseller/dashboard where the Partner can register Potential Customers.
1.13 “Nexudus Services” means any services provided or to be provided by Nexudus to Authorised Customers pursuant to a Customer Agreement in connection with the Nexudus Platform.
1.14 “Order Referral” means an order from an Authorised Customer requesting to enter into a Customer Agreement with Nexudus to obtain access to the Nexudus Platform and the Nexudus Services (where applicable).
1.15 “Partner Registration Code” means a unique code provided by Nexudus to the Partner for use on the Nexudus Portal.
1.16 “Partner Services” means the Customer Implementation Services and/or the Customer Support Services, as set out in the Scope of Work.
1.17 “Potential Customer” means a potential customer, being an individual, group or department within an organization, which is interested in purchasing access to the Nexudus Platform and receiving Nexudus Services or Partner Services (as the case may be), as described in the “Partner Opportunity Registration” form submitted via the registration process outlined in Section 2.1(a) but which has not yet been authorised by Nexudus.
1.18 “Renewal Term” has the meaning given to it in Section 10.1.
1.19 “Scope of Work” means the scope of work setting out the Partner Services to be undertaken by Partner in connection with Authorised Customers who enter into a Customer Agreement with Nexudus, and which shall take the format set out at Exhibit E (Scope of Work).
1.20 “Subscription Fees” means the licence fees that Nexudus charges to Authorised Customers pursuant to a Customer Agreement.
1.21 “Term” means the Initial Term and the Renewal Term.
1.22 “Territory” means the United Kingdom and such other countries where the Nexudus Platform is available, as notified by Nexudus to Partner from time to time.
2. RESPONSIBILITIES OF THE PARTIES.
(a) Potential Customer Registration. Partner shall register all Potential Customers by completing and submitting the “Partner Opportunity Registration” form via the Nexudus Portal by going to https://platform.nexudus.com/reseller/customers and clicking on “Add Customer”. The completed and submitted form must include a valid Partner Registration Code and a copy of a Scope of Work setting out any Partner Services the Partner proposes to provide. Partner must submit information in all required fields of the registration page. The “Partner Opportunity Registration” form shall be subject to acceptance by Nexudus in its sole discretion.
(b) Order Referrals. Once a Potential Customer becomes an Authorised Customer, the Partner may submit an Order Referral by or on behalf of that Authorised Customer. The Partner must ensure that each Order Referral (1) is submitted via the Nexudus Portal, (2) includes a copy of Nexudus’ then current form of Customer Agreement which has been signed by the Authorised Customer, (3) includes a copy of the Scope of Work agreed by Nexudus, and (4) includes a valid Partner Registration Code for Partner. Nexudus may accept or reject any Order Referral submitted, in its sole discretion and the Partner acknowledges that Nexudus is under no obligation to enter into any Customer Agreement with any Authorised Customer and that the entry into such Customer Agreement shall be in Nexudus’ sole discretion.
(c) Marketing. Partner will use all reasonable endeavours to market, advertise and promote the Nexudus Platform in the Territory and agrees to refer Potential Customers to Nexudus and introduce Nexudus to Partner’s installed customer base as appropriate. Partner will generate Order Referrals for the Nexudus Platform via its sales efforts.
(d) Partner Services. Partner shall provide Partner Services to Authorised Customers who have entered into a Customer Agreement with Nexudus as may be agreed and further described in the Scope of Work.
(e) Compliance with Laws. Partner will at all times comply with all applicable laws and regulations (including without limitation the UK Bribery Act 2010), adhere to good professional and industry standards, and refrain from any unethical conduct or any other conduct that tends to damage the reputation of Nexudus or the Nexudus Platform in the course of its sales, marketing and service activities related to this Agreement. The foregoing is a material provision of this Agreement.
(f) Training. Partner agrees to undertake the training commitments as specified in Exhibit B (Training). Partner must meet the then-current training and certification requirements set forth on the Nexudus Portal prior to starting to promote and demonstrate the Nexudus Platform to Potential Customers and providing any Partner Services to Authorised Customers who have entered into a Customer Agreement with Nexudus.
(g) Marketing. Partner will use all reasonable endeavours to undertake and participate in the initial marketing and promotional activities described in Exhibit C (Marketing). Partner will maintain a staff of sales and technical support personnel sufficient to meet the needs of the Authorised Customers who entered into a Customer Agreement with Nexudus, as well as those of Potential Customers.
(h) Branding. Partner will use the Marks to identify the Nexudus Platform and in all materials used to advertise, market, or promote the Nexudus Platform in a manner mutually acceptable to Nexudus and the Partner. The Partner’s use of the Marks is subject to the limitations and requirements in Sections 4.3, 4.4 and 4.4.
(i) General. Partner will: (i) not hold itself out as an agent, legal representative or employee of Nexudus, and will not otherwise suggest any affiliation with Nexudus other than as expressly contemplated by this Agreement, and (ii) not make any legal representations, guarantees or warranties of any type on behalf of Nexudus or with respect to the Nexudus Platform, or describe the Nexudus Platform in a manner inconsistent with the Customer Documentation or any other descriptions or specifications communicated by Nexudus to the Partner.
(j) Authority to bind. Partner shall not have authority to incur any liability or obligation on behalf of Nexudus and shall not be entitled to enter into contracts directly with Potential Customers or Authorised Customers.
(k) Competing Products. Partner agrees to use all reasonable endeavors, in good faith, to advise Company of its promotion, marketing, or distribution of any new Competing Product(s) within thirty (30) days of commencement. “Competing Product” means a product offering similar functionality to the Nexudus Platform. Partner will promote the Nexudus Platform in a balanced and equitable manner as compared to any Competing Products. In no event will Partner’s marketing or sales materials or website disparage the Nexudus Platform as compared to Competing Products.
(a) Authorisation. In the event a Potential Customer is not approved by Nexudus, Nexudus will use its commercially reasonable efforts to inform the Partner within five (5) business days of a Potential Customer being registered as such on the Nexudus Portal. Nexudus will not follow up on Order Referrals unless and until Partner has submitted an order on behalf of an Authorised Customer.
(b) Training. Nexudus will use reasonable endeavours to provide training for Partner sales, support and consulting personnel as specified in Exhibit B (Training).
(c) Marketing. Nexudus will use reasonable endeavours to undertake and participate in the initial marketing and promotional activities described in Exhibit C (Marketing).
(d) Customer Documentation. Subject to the terms and conditions of this Agreement, including Sections 4.1 and 4.2(b), Nexudus will deliver to Partner one (1) copy of the Customer Documentation for each Authorised Customer who has entered into a Customer Agreement with Nexudus, as soon as reasonably practicable after the date of signing of such Customer Agreement.
(e) Nexudus Services and Second Level Support. Where Partner does not provide Partner Services, Nexudus will be responsible for providing Nexudus Services to Authorised Customers who have entered into a Customer Agreement with Nexudus, in its sole discretion. Where Partner provides Customer Support Services to Authorised Customers who have entered into a Customer Agreement with Nexudus, as set out in the Scope of Work, Nexudus will provide second-level support to the relevant Authorised Customers for the Nexudus Platform, in accordance with the applicable Customer Agreement. Nexudus reserves the right at all times, in its sole discretion, to establish and maintain contact with any Authorised Customer in order to facilitate access to the Nexudus Platform and to provide support, notwithstanding the level of support provided by Partner.
2.3 Additional Responsibilities. Additional Responsibilities of the Parties may be set forth in Exhibits A (Commission Payments), B (Training), C (Marketing), and D (Pricing of Subscription Fees).
2.4 Data Protection. Each Party undertakes to comply with the applicable data protection legislation when processing personal data relating to Potential Customers or Authorised Customers, which includes: (a) the Data Protection Act 1998 and all other applicable national laws, regulations and secondary legislation implementing European Directive 95/46/EC; (b) the GDPR and all related national laws, regulations and secondary legislation; (c) Privacy and Electronic Communications (EC Directive) Regulations 2003 (SI 2003/2426) and all other applicable national laws, regulations and secondary legislation implementing European Directive 2002/58/EC; (d) any other laws relating to data protection and privacy which are from time to time applicable to each Party. “GDPR” refers to Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 (General Data Protection Regulation) and to the extent the GDPR is no longer applicable in the United Kingdom, any implementing legislation or legislation having equivalent effect in the United Kingdom. Notwithstanding the generality of the foregoing, the Parties shall comply with their respective obligations set forth in Exhibit F (Data Processing Addendum). In the case of any inconsistency, conflict or ambiguity between any of the provisions of this Agreement and the Data Processing Agreement, the provisions of the Data Processing Agreement shall prevail in preference to this Agreement.
3.1 Commission Payments. Subject to the terms and conditions of this Agreement, where one or more Authorised Customers enter into a Customer Agreement, Partner shall be entitled to receive a Commission from Nexudus, the amount of which shall be determined in accordance with Exhibit A (Commission Payments). Payment of Commission by Nexudus to Partner shall be made in accordance with paragraph 2 of Exhibit A (Commission Payments).
3.2 No Expenses; No Other Compensation. Partner acknowledges and agrees that it shall not be entitled to any reimbursement of any expenses or for any other payment or compensation of any type other than payment of the Commission.
3.3 Taxes and Charges. Partner will be responsible for, and will indemnify and hold Nexudus harmless from, all taxes (other than taxes based on Nexudus’ net income), fees, duties, and other governmental charges, and any related penalties and interest, arising from the payment of fees hereunder.
3.4 Subscription Fees. Partner acknowledges and agrees that Nexudus shall be free, in its sole discretion, to establish the value of the Subscription Fees, and shall be solely responsible for billing such Authorised Customers who have entered into a Customer Agreement with Nexudus and collecting all such amounts. Partner shall only be entitled to promote the Subscription Fees to Potential Customers and Authorised Customers as set out in Exhibit D (Pricing of Subscription Fees) and available at https://www.nexudus.com/en/page/pricing. Nothing in this Agreement shall entitle Partner to promote any other pricing or amended versions of the Customer Agreement without prior written approval from Nexudus.
4. PARTNER RELATIONSHIP AND LICENCES
4.1 Nexudus Platform Licence. Subject to the terms and conditions of this Agreement, Nexudus hereby grants to the Partner a nonexclusive, nontransferable licence for the Term to:
(a) market and demonstrate the Nexudus Platform to Potential Customers;
(b) solicit orders directly from Authorised Customers for access to the Nexudus Platform and to obtain the Nexudus Services and/or the Partner Services (as applicable);
(c) access and use the Nexudus Platform and the Nexudus Portal to provide Partner Services, where applicable; and
(d) distribute copies of the Customer Documentation to Authorised Customers who have entered into a Customer Agreement with Nexudus.
4.2 Licence restrictions. Partner agrees not to:
(a) market and demonstrate the Nexudus Platform to Potential Customers, or solicit orders from Authorised Customers, through a third party, including a sales agent, without prior written consent from Nexudus. Partner hereby acknowledges that any additional or modified rights to solicit orders for the Nexudus Platform beyond those provided in Section 4.1 above shall be subject to a separate written agreement between the Parties;
(b) modify, adapt or alter the Nexudus Platform or the Customer Documentation;
(c) reverse engineer, decompile or disassemble, or attempt to obtain or perceive the source code from which any component of the Nexudus Platform is compiled or interpreted, and Partner acknowledges that nothing in this Agreement will be construed to grant Partner any right to obtain or use any source code; or
(d) make available the Nexudus Platform and any Partner Services to a direct competitor of Nexudus.
4.3 Trademark Licence. Nexudus hereby grants to Partner a personal, revocable, nonexclusive, nontransferable, royalty-free licence (without the right to grant sub-licences) to use and reproduce the trademarks, service marks, names, brands and logos of Nexudus as provided to Partner by Nexudus in connection with Partner’s use and promotion of the Nexudus Platform and Customer Documentation hereunder (collectively, “Marks”) solely in connection with marketing and promoting the Nexudus Platform in accordance with this Agreement.
4.4 Use; Modification. The trademark licence above shall be subject to conformance with Nexudus’ trademark usage policies. Partner agrees to state in appropriate places on all materials using the Marks that the Marks are trademarks of Nexudus and to include the symbol TM or ®, as appropriate. Partner will provide Nexudus with samples of all tangible media that contain the Marks prior to their use, distribution or display for Nexudus’ quality assurance purposes and will obtain Nexudus’ written approval prior to such initial form of use, distribution or display. At Nexudus’ request, Partner will modify or discontinue any use of the Marks if Nexudus determines that such use does not comply with Nexudus’ then-current trademark usage policies or other guidelines. Partner shall not, by any act or omission, make any express or implied reference or use the Marks in any manner that dilutes, tarnishes, degrades, disparages or reflects adversely in any material respect on Nexudus, its business or reputation.
5. OWNERSHIP. The Nexudus Platform, the Customer Documentation and the Marks, and all Intellectual Property Rights therein, are the exclusive property of Nexudus and its licensors (if applicable). All rights not expressly granted to Partner under this Agreement are reserved to Nexudus and its licensors (if applicable). Partner shall not represent that they have any right, title or interest in the Nexudus Platform.
6. REPRESENTATIONS AND WARRANTIES
6.1 Mutual Warranties. Each Party represents and warrants to the other Party that: (i) it has the full corporate right, power and authority to enter into this Agreement and to perform its obligations hereunder; (ii) the execution of this Agreement and the performance of its obligations hereunder does not and will not conflict with or result in a breach (including with the passage of time) of any other agreement to which it is a party; (iii) this Agreement has been duly executed and delivered by such Party and constitutes the valid and binding agreement of such Party, enforceable against such Party in accordance with its terms except to the extent that enforce ability is limited by public policy or creditors’ rights generally.
6.2 Nexudus Warranty. Nexudus warrants during the Term that the Nexudus Platform, when used as permitted under this Agreement and in accordance with the instructions in the Customer Documentation, will operate substantially as described in the Customer Documentation. Nexudus does not warrant that use of the Nexudus Platform will be error-free or uninterrupted. Nexudus will, at its own expense and as its sole obligation and Partner’s exclusive remedy for any breach of this warranty, use reasonable endeavours to correct any reproductive error in the Nexudus Platform reported to Nexudus by Partner in writing.
6.3 DISCLAIMER OF WARRANTIES. NEXUDUS DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES REGARDING THE NEXUDUS PLATFORM, WHICH ARE PROVIDED AS IS, WHETHER EXPRESS, IMPLIED OR STATUTORY, ORAL OR IN WRITING, ARISING UNDER ANY LAWS, INCLUDING ANY WARRANTIES OF SATISFACTORY QUALITY, MERCHANTIBILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. PARTNER ACKNOWLEDGES THAT IT HAS RELIED ON NO WARRANTIES OTHER THAN THE EXPRESS WARRANTIES IN THIS AGREEMENT AND THAT NO WARRANTIES ARE MADE BY ANY OF NEXUDUS’ SUPPLIERS.
7.1 Indemnification by Partner. Partner shall indemnify, defend and hold harmless Nexudus and its officers, directors, employees, agents, subcontractors and affiliates from and against any and all loss, damage, action, causes of action, expense, cost, liability, and reasonable legal fees and costs (collectively, “Claims”) made against or incurred thereby as a result of:
(a) any representations, warranties, guarantees, or other written or oral statements made by or on behalf of Partner relating to the Nexudus Platform other than as authorized by Nexudus in writing;
(b) any claim alleging that the Partner’s products, Partner’s trademarks or any other products or services marketed and distributed by Partner (aside from the Nexudus Platform) infringe or misappropriate any Intellectual Property Rights or other right of a third party; or
(c) any claim based on the action or inaction of Partner or any of its agents, contractors or employees in its performance under this Agreement, unless specifically authorized in this Agreement.
7.2 Indemnification by Nexudus. Nexudus agrees to defend, indemnify and hold harmless Partner from and against any claims, suits, losses, damages, liabilities, costs, and expenses (including reasonable legal fees) brought by third parties alleging that the Nexudus Platform, Marks, or Customer Documentation, infringes or misappropriates any Intellectual Property Rights of a third party. The foregoing obligations are conditioned on Partner notifying Nexudus promptly in writing of such action, Partner giving Nexudus sole control of the defence thereof and any related settlement negotiations, and Partner cooperating and, at Nexudus’ reasonable request and expense, assisting in such defence. In addition, if the Nexudus Platform becomes, or in Nexudus’ opinion is likely to become, the subject of an infringement claim, Nexudus may, at its option and expense, either (a) procure for Partner the right to continue exercising the rights licensed to Partner in this Agreement; (b) replace or modify the Nexudus Platform so that it becomes non-infringing and remains functionally equivalent; or (c) if Nexudus determines that neither of the alternatives in (a) or (b) is feasible, terminate this Agreement by written notice to Partner, in accordance with the subsection titled Notices/Approvals. Notwithstanding the foregoing, Nexudus will have no obligation under this subsection or otherwise with respect to any infringement claim based upon (i) any unauthorized use, reproduction, or distribution of the Nexudus Platform; (ii) any use of the Nexudus Platform in combination with other products, equipment, software, or data not supplied by Nexudus; (iii) any use, reproduction, or distribution of any release of the Nexudus Platform other than the most current release made available by Nexudus; or (iv) any modification of the Nexudus Platform by any person other than Nexudus or its authorized agents or contractors. This subsection states Nexudus’ entire liability and Partner’s sole and exclusive remedy for infringement claims and actions.
8. LIMITATION OF LIABILITY
8.1 Liability which cannot be Excluded. NOTHING IN THIS AGREEMENT SHALL LIMIT OR EXCLUDE EITHER PARTY’S LIABILITY FOR: (A) DEATH OR PERSONAL INJURY CAUSED BY ITS NEGLIGENCE; OR (B) FRAUD OR FRAUDULENT MISREPRESENTATION.
8.2 Exclusion of Liability. In no event will Nexudus be liable whether in contract, tort (including for negligence), breach of statutory duty (howsoever arising), misrepresentation (whether innocent or negligent), restitution or otherwise, for: (i) any loss (whether direct or indirect) of profits, business, business opportunities, revenue, turnover, reputation or goodwill; (ii) loss (whether direct or indirect) or corruption of data; (iii) loss (whether direct or indirect) of anticipated savings or wasted expenditure (including management time; or (iv) any consequential, indirect, exemplary, punitive, special or incidental losses or damages, arising from or relating to this Agreement, in each case even if Partner has been informed of the possibility of such damages.
8.3 Liability cap. Nexudus’ total cumulative liability in connection with this Agreement and the Nexudus Platform, whether in contract, tort (including for negligence), breach of statutory duty (howsoever arising), misrepresentation (whether innocent or negligent), restitution or otherwise, will not exceed the amount of Commission paid by Nexudus to Partner under this Agreement in the previous twelve (12) months. Partner acknowledges that the Commission set forth in this Agreement reflects the allocation of risk set forth in this Agreement and that Nexudus would not enter into this Agreement without these limitations on its liability. The foregoing limitations of liability are independent of any exclusive remedies for breach of warranty set forth in this Agreement.
9.1 Protection of Confidential Information. Each Party (the “Receiving Party”) hereto agrees that it shall not disclose or use any Confidential Information of the other Party (the “Disclosing Party”) for any purpose not necessary to comply with the Receiving Party’s obligations under this Agreement, except in accordance with Section 9.2 below. The Receiving Party may disclose Confidential Information of the Disclosing Party to its employees who have a need to know such Confidential Information for the purposes of this Agreement and who are under a duty of confidentiality no less restrictive than the Receiving Party’s obligations hereunder. The Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorised use, access or disclosure in the same manner as the Receiving Party protects its own confidential or proprietary information of a similar nature and with no less than reasonable care.
9.2 Exceptions. Notwithstanding Section 9.1 above, the Receiving Party may disclose Confidential Information of the Disclosing Party where such Confidential Information: (a) was already lawfully known to the Receiving Party at the time of disclosure by the Disclosing Party; (b) was disclosed to the Receiving Party by a third party who had the right to make such disclosure without any confidentiality restrictions; (c) is, or through no fault of the Receiving Party has become, generally available to the public; or (d) was independently developed by the Receiving Party without access to, or use of, the Disclosing Party’s Confidential Information. In addition, the Receiving Party will be allowed to disclose Confidential Information of the Disclosing Party to the extent that such disclosure is (i) approved in writing by the Disclosing Party, (ii) necessary for the Receiving Party to enforce its rights under this Agreement in connection with a legal proceeding; or (iii) required by law or by the order or a court of similar judicial or administrative body, provided that the Receiving Party notifies the Disclosing Party of such required disclosure promptly and in writing and cooperates with the Disclosing Party, at the Disclosing Party’s reasonable request and expense, in any lawful action to contest or limit the scope of such required disclosure.
9.3 Return of Confidential Information. The Receiving Party will return to the Disclosing Party all Confidential Information of the Disclosing Party in the Receiving Party’s possession or control and permanently erase all electronic copies of such Confidential Information promptly upon the written request of the Disclosing Party or the expiration or termination of this Agreement, whichever comes first. At the Disclosing Party’s request, the Receiving Party will certify in writing signed by an officer of the Receiving Party that it has fully complied with its obligations under this subsection.
9.4 Confidentiality of Agreement. Neither party will disclose any terms of this Agreement to anyone other than its attorneys, accountants, and other professional advisors under a duty of confidentiality except (a) as required by law or (b) pursuant to a mutually agreeable press release or (c) in connection with a proposed merger, financing, or sale of such party’s business (provided that any third party to whom the terms of this Agreement are to be disclosed signs a confidentiality agreement with terms no less restrictive than in this Agreement).
10. TERM AND TERMINATION.
10.1 Term. This Agreement shall commence on the Effective Date and shall continue for an initial period of twelve (12) months (the “Initial Term”), unless terminated earlier pursuant to Section 10.2 below. On expiry of the Initial Term, this Agreement shall automatically be renewed for additional periods of twelve (12) months (each a “Renewal Term”), unless terminated earlier pursuant to Section 10.2 below.
10.2 Termination. Without prejudice to any other right or remedy available at law or in equity in respect of any event described below, this Agreement may be terminated under the following circumstances:
(a) Either Party may terminate this Agreement for convenience without penalty at any time upon thirty (30) days’ written notice. Where Partner provides Customer Support Services to Authorised Customers who have entered into a Customer Agreement with Nexudus, as set out in the Scope of Work, Nexudus shall have the option to terminate that part of this Agreement only and require Partner to stop providing such Customer Support Services, in which case Section 10.4 below shall apply.
(b) If either Party breaches a material obligation of this Agreement, then the other Party may give written notice to the breaching Party and if the breach is not cured within fifteen (15) days from the date of such notice, the Agreement may be immediately terminated.
(c) If either Party becomes insolvent or unable to pay its debts (as defined in section 123 of the Insolvency Act 1986), proposes a voluntary arrangement, has a receiver, administrator or manager appointed over the whole or any part of its business or assets, suffers the presentation of any petition, the making of any order or the passing of any resolution for its winding up (except for the purposes of a bona fide solvent amalgamation or reconstruction), bankruptcy or dissolution, otherwise proposes or enters into any composition or arrangement with its creditors or any class of them, ceases to carry on business, or undergoes any similar or equivalent process in any jurisdiction, the other Party may immediately terminate this Agreement.
(d) If Partner purports to assign or transfer this Agreement or any of its rights, benefits or obligations hereunder in violation of the Agreement, Nexudus may by written notice immediately terminate this Agreement.
(e) If either Party breaches Section 10 (Confidentiality), then the non-breaching Party may immediately terminate this Agreement.
10.3 Effect of Termination. Following termination or expiration of this Agreement for any reason:
(a) each Party shall continue to maintain the confidentiality of the other Party’s Confidential Information and shall comply with Section 9.3;
(b) the licences granted to Partner under Sections 4.1 and 4.3 shall immediately terminate and Partner shall promptly discontinue all further use of the Nexudus Platform, the Customer Documentation and the Marks;
(c) Partner shall return to Nexudus any Customer Documentation and marketing materials, and certify to Nexudus in writing that it has fully complied with this requirement;
(d) Nexudus will be entitled to reject all or part of any Order Referrals or requests for approval of Potential Customers received from Partner after a notice of termination has been issued but prior to the effective date of termination; and
(e) Sections 5 (Ownership), 6 (Representations and Warranties), 7 (Indemnification), 8 (Limitation of Liability), 9 (Confidentiality), 10.3 (Effect of Termination), and 11 (Miscellaneous) shall survive expiration or earlier termination of this Agreement.
10.4 Termination for Convenience in Part. Where Nexudus terminates the Customer Support Services part of this Agreement pursuant to Section 10.2(a), Tier 1 instead of Tier 3 in Exhibit A (Commission Payments) shall apply to the calculation of Partner’s Commission. If the termination notice takes effect after the expiry of the First Contract Year and Partner has already received Commission under Tier 1, Partner shall not be entitled to any further payment or compensation.
11.1 Publicity/Trademarks. Neither Partner, nor any third party on Partner’s behalf, shall publish, distribute or otherwise disseminate any press release, advertising or publicity matter having any reference to Nexudus or the subject hereof, unless and until such matter shall have first been submitted to and approved in writing by Nexudus. Where approved by both Parties, the Parties shall mutually agree on the form, content and timing of any publicity or promotional communications.
11.2 Arbitration. Any dispute or claim arising out of or in connection with this Agreement including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration under the London Court of International Arbitration (“LCIA”) Rules, which Rules are deemed to be incorporated by reference into this Section 11.2. The number of arbitrators shall be one (1) unless the Parties agree that the dispute would require three (3). In default of the Parties’ agreement as to the arbitrator(s), the appointing authority shall be the LCIA. The seat, or legal place, of arbitration shall be London, England. The language to be used in the arbitral proceedings shall be English. The Parties agree that the existence and content of the arbitration, and the terms of any order or award made in the arbitration shall, except as may be required by law, be confidential. Judgment upon any award(s) rendered by the arbitrator(s) may be entered in any court having jurisdiction thereover. Notwithstanding the foregoing, Partner agrees that Nexudus may bring claims for injunctive or other equitable relief, at any time, before any court of competent jurisdiction. The arbitration agreement contained in this Section 11.2 shall be governed by, and construed in accordance with the laws of England and Wales.
11.3 Independent Contractors. The relationship between the Parties is that of independent contractors. Nothing in this Agreement shall be deemed to create an employment, partnership, joint venture, or agency relationship between the Parties.
11.4 Subcontracting. Partner may not subcontract any of it obligations under this Agreement without the prior written consent of Nexudus. Partner will at all times remain primarily responsible for any subcontracting permitted by Nexudus.
11.5 Assignment. Partner shall not assign or transfer this Agreement (whether by operation of law or otherwise), or delegate any obligations hereunder, without the express written consent of Nexudus.
11.6 Governing Law. This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of England and Wales. The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).
11.7 Waiver. A waiver by either Party of any term or condition of this Agreement in any instance shall not be deemed or construed as a waiver of a subsequent breach thereof, or of any other provision. All remedies, rights, undertakings, obligations, and agreements contained in this Agreement shall be cumulative and none of them shall be in limitation of any other remedy, right, undertaking, obligation or agreement by either Party.
11.8 Headings. The headings of Sections in this Agreement are provided for convenience only and will not affect its construction or interpretation. Unless otherwise expressly provided, the word “including” does not limit the preceding words or terms.
11.9 Notices/Approvals. All notices, approvals, consents, waivers, writings, and other communications under this Agreement must be in writing and will be deemed to have been given when: (a) delivered by hand to the persons named below (with written confirmation of receipt); (b) sent by facsimile machine (with confirmation of receipt by the receiving facsimile machine); (c) when received by the addressee, if sent by a nationally recognized overnight delivery service; or (d) by e-mail if delivery is electronically confirmed by a postmaster daemon, or equipment, at the recipient’s e-mail address; to the addresses, facsimile numbers and/or e-mail addresses set forth below (or to such other addresses and facsimile numbers as a Party may designate by notice to the other Party):
11.10 Entire Agreement. This Agreement (including the attachments and exhibits described herein) contain the complete Agreement of the Parties and supersedes all prior discussions, communications, and agreements between the Parties with respect to the subject matter hereof, and cannot be amended or modified except in writing signed by both Parties.
11.11 Severability. If any of the provisions, or part thereof, of this Agreement shall be invalid or unenforceable under the laws of the jurisdiction applicable to the Agreement, such invalidity or unenforceability shall not invalidate or render unenforceable the entire Agreement but rather the entire agreement shall be construed as if not containing the particular invalid or unenforceable provision and the rights and obligations of the Parties shall be construed and enforced accordingly.
11.12 Injunctive Relief. Each of the Parties acknowledges that any violation by either Party of the provisions of Section 9 (Confidentiality) would cause serious and irreparable damages to the other Party. Each of the Parties further acknowledges that it might not be possible to measure such damages in money. Accordingly, each of the Parties further acknowledges that, in the event of a breach or threatened breach by either Party of the provisions of this Article, the non-breaching Party may, in addition to any other rights or remedies, including money damages, seek, an injunction or restraining order, restraining the allegedly breaching Party from doing or continuing to do or perform any acts constituting such breach or threatened breach.
1. Commission to Partner. Subject to the terms of this Agreement, where one or more Authorised Customers enter into a Customer Agreement, Partner shall be entitled to receive a payment from Nexudus in respect of each such Authorised Customer (“Commission”), the amount of which shall be determined as described below.
The Commission payment shall be equal to the amount listed in the relevant column entitled “Commission” of the following table, for the applicable Tier, as described below. For the avoidance of doubt, the Partner acknowledges that Nexudus may choose to implement additional Tiers to those set out below, in its sole discretion, and will notify the Partner if any further Tiers become available.
“Tier 1” applies where the Partner only markets, advertises and promotes the Nexudus Platform, and sends Order Referrals to Nexudus, but does not provide any Partner Services to the Authorised Customers once they have signed a Customer Agreement. Nexudus will instead provide Nexudus Services to such Authorised Customers.
“Tier 2” applies where the Partner markets, advertises and promotes the Nexudus Platform, sends Order Referrals to Nexudus and provides Customer Implementation Services to Authorised Customers who have signed a Customer Agreement.
“Tier 3” applies where the Partner markets, advertises and promotes the Nexudus Platform, sends Order Referrals to Nexudus, and provides Customer Implementation Services, as well as Customer Support Services to Authorised Customers who have signed a Customer Agreement.
Tier 1 10% of the total value of the Subscription Fees received by Nexudus from the relevant Authorised Customer for the period of twelve (12) calendar months starting from the date on which the Authorised Customer has been registered and approved as such on the Nexudus Portal.
Tier 2 20% of the total value of the Subscription Fees received by Nexudus from the relevant Authorised Customer for the period of twelve (12) calendar months starting from the date on which the Authorised Customer has been registered and approved as such on the Nexudus Portal.
Tier 3 20% of the total value of the annual Subscription Fees received by Nexudus starting from the date on which the relevant Authorised Customer has been registered and approved as such on the Nexudus Portal and for such time as the Partner continues to provide Customer Support Services to the Authorised Customer.
2. Payments to Partner. Nexudus will pay Partner Commission on [INSERT DATE], via the Partner’s Stripe account, in the following month after the applicable Subscription Fees are paid to Nexudus by the Authorised Customer. In the event that the Authorised Customer is refunded any portion of its Subscription Fees by Nexudus, Nexudus will report such refund to Partner and Partner will refund to Nexudus the pro rata portion of its Commission.
1. Nexudus will conduct a general overview training session via online conferencing for Partner’s sales representatives, the timing to be mutually determined by the Parties. Partner sales representatives will be trained on the general value proposition and positioning of the Nexudus Platform, how to demonstrate the Nexudus Platform and the process for registering Potential Customers on the Nexudus Portal. Partner and relevant personal within Partner’s organization will complete the general overview training session within thirty (30) days of signing this Agreement.
2. Partner sales representatives generating leads for the Nexudus Platform should be capable of effectively delivering the Nexudus value proposition and must be generally knowledgeable about the Nexudus Platform, its interface, advantages and high-level functionality.
3. As Nexudus releases updates, upgrades or new Nexudus Platform, Partner’s applicable sales representatives may be asked to reasonably participate in any necessary training to become proficient in generating leads for those additional services. Partner agrees to use all reasonable endeavours to participate in future training.
4. Partner agrees that Partner will reasonably advise Nexudus of any demonstrations required to market Nexudus Platform to Potential Customers, especially those involving a group of ten or more people.
5. Partner agrees to make regular inquiries to its sales representatives regarding their Nexudus lead generation activities and to periodically report this information to Nexudus as reasonable.
1. Partner Marketing Programs & Collateral: As reasonable and appropriate, Partner will integrate promotion of the partnership within Partner’s marketing materials, website, and activities.
2. Marketing Support: As reasonable and appropriate, Nexudus will provide Partner with its standard marketing collateral and other standard tools to support Partner’s sales activities.
3. Cooperation: Partner and Nexudus agree to maintain an open, collaborative communication channel during the implementation of the partnership. The Parties plan to discuss partnership progress and extension possibilities approximately every six months.
Pricing of Subscription Fees
1. Price List. The Subscription Fees can be found at: https://www.nexudus.com/en/page/pricing.
2. Notification. Pricing of Subscription Fees is subject to change at the sole discretion of Nexudus. Nexudus will use reasonable endeavours to give Partner reasonable notice of any such pricing change prior to the change taking effect.
Scope of Work
1. Scope of Partner Services. The Partner Services shall comprise (please tick):
Customer Implementation Services
Customer Support Services
2. Customer Implementation Services. The Customer Implementation Services shall consist of:
a. Collecting requirements from the Authorised Customer using the provided implementation and settings files and other documentation provided by the Authorised Customer;
b. Transferring all requirements provided by the Authorised Customer on to the Nexudus Platform;
c. Ensuring the configuration meets the requirements of the Authorised Customer and performing any corrections and updates based on any changes communicated by the Authorised Customer during the First Contract Year;
d. Informing the Authorised Customer and the Nexudus team when the implementation of the requirements has been completed; and
e. Providing an introductory training to the Authorised Customer demonstrating the implemented requirements as well as providing access to all the Customer Documentation.
3. Customer Support Services. The Customer Support Services shall consist of direct, first-level support to Authorised Customers who have entered into a Customer Agreement with Nexudus. Before requesting second-level support, Partner shall use all reasonable endeavours to resolve support questions and to correct reported problems through the Nexudus Portal, where possible, and to ensure that the issue is not related to any part of the implementation of the Nexudus Platform for the relevant Authorised Customer. Partner’s first-level support obligations include:
a. receiving the request for support from the Authorised Customer and verifying that the Authorised Customer holds a valid licence to the Nexudus Platform and has signed a Customer Agreement with Nexudus and is entitled to receive support;
b. searching the Customer Documentation for a potential solution or work-around;
c. determining whether the problem is the result of an environmental or configuration problem or an error in the Nexudus Platform;
d. attempting to produce a work-around;
e. promptly reporting back to the Authorised Customer on progress;
f. if necessary for Nexudus’ provision of second level support, providing to Nexudus such information as is reasonably required by Nexudus from Partner to provide the second-level support, which includes but is not limited to: (i) Authorised Customer name, (ii) name of person placing call; (iii) contact information for person placing the call; (iv) description of the issues and the impact to the Authorised Customer and Partner; (v) the Authorised Customer’s operating environment; and (vi) details of the investigation already undertaken to determine the cause of the issue; and
g. coordinating with and passing through to the Authorised Customer any second-level support, error corrections, and updates provided by Nexudus to Partner.
Data Processing Addendum
THIS DATA PROCESSING ADDENDUM is entered into as of the Addendum Effective Date by and between: (1) NEXUDUS LIMITED, a company incorporated in England having its registered address at 1 College Yard, 56 Winchester Avenue, London, NW6 7UA (“Nexudus”); and (2) [PARTNER], a company incorporated and registered in [INSERT LOCATION] with company number [INSERT COMPANY NUMBER] whose registered office is at [INSERT ADDRESS] (“Partner”).
1.1. In this Data Processing Addendum the following terms shall have the meanings set out in this Paragraph 1, unless expressly stated otherwise:
(a) “Addendum Effective Date” means the effective date of the Agreement.
(b) “Adequate Country” means a country or territory outside the European Economic Area that the European Commission has deemed to provide an adequate level of protection for Personal Data pursuant to a decision made in accordance Article 45(1) of the GDPR.
(c) “Agreement” means the Partner Agreement entered into by and between the Parties on or around the date of execution of this Data Processing Addendum.
(d) “Cessation Date” has the meaning given in Paragraph 10.1.
(e) “Nexudus Affiliates” means any companies which are controlled by Nexudus, which control Nexudus or which are under common control with Nexudus and either: (i) are Data Controllers of any Nexudus Personal Data; and/or (ii) on whose behalf Partner and/or any Subprocessor otherwise processes any Nexudus Personal Data. For these purposes, “control” and its derivatives mean to hold, directly or indirectly, more than 50% of the respective shares with voting rights.
(f) “Nexudus Personal Data” means any Personal Data Processed by or on behalf of Partner on behalf of Nexudus and/or any Nexudus Affiliate pursuant to or in connection with the Agreement.
(g) “Data Protection Laws” means: (i) the GDPR; and (ii) to the extent applicable, the data protection or privacy laws of any other country.
(h) “Data Subject” means the identified or identifiable natural person to whom Nexudus Personal Data relates.
(i) “Delete” means to remove or obliterate Personal Data such that it cannot be recovered or reconstructed, and “Deletion” shall be construed accordingly.
(j) “GDPR” means the EU General Data Protection Regulation 2016/679 and any implementing legislation or legislation having equivalent effect in the United Kingdom (references to “Articles” or “Chapters” of the GDPR shall be construed accordingly).
(k) “Personal Data Breach” means any actual or reasonably suspected Personal Data Breach (as defined in Article 4(12) of the GDPR).
(l) “Personnel” means a person’s employees, agents, consultants or contractors.
(m) “Post-cessation Storage Period” has the meaning given in Paragraph 10.2.
(n) “Restricted Country” means a country or territory outside the European Economic Area that is not an Adequate Country.
(o) “Restricted Transfer” means: (i) a transfer of Nexudus Personal Data from Nexudus to Partner in a Restricted Country; or (ii) an onward transfer of Nexudus Personal Data from Partner to a Subprocessor in a Restricted Country, (in each case) where such transfer would be prohibited by Data Protection Laws without a legal basis therefor under Chapter V of the GDPR.
(p) “Security Requirements” means Nexudus’ then-current information security policies and procedures for its suppliers, as may be updated by Nexudus on notice to Partner from time to time.
(q) “Services” means those services and activities to be supplied to or carried out by or on behalf of Partner for Nexudus and/or any Nexudus Affiliate pursuant to the Agreement.
(r) “Standard Contractual Clauses” means the standard contractual clauses issued by the European Commission (from time-to-time) for the transfer of Personal Data from Data Controllers established inside the European Economic Area to Data Processors established in Restricted Countries.
(s) “Subprocessor” means any third party appointed by or on behalf of Partner to Process Nexudus Personal Data.
1.2. In this Data Processing Addendum:
(a) the terms, “Data Controller”, “Data Processor”, “Personal Data”, “Process/Processing/Processed” and “Supervisory Authority” shall have the meaning ascribed to the corresponding terms in the Data Protection Laws;
(b) unless otherwise defined in this Data Processing Addendum, all capitalised terms shall have the meaning given to them in the Agreement; and
(c) any reference to any statute, regulation or other legislation in this Data Processing Addendum shall be construed as meaning such statute, regulation or other legislation, together with any applicable judicial or administrative interpretation thereof (including any binding guidance, guidelines, codes of practice, approved codes of conduct or approved certification mechanisms issued by any relevant Supervisory Authority).
2. PROCESSING OF NEXUDUS PERSONAL DATA
(a) comply with all applicable Data Protection Laws in Processing Nexudus Personal Data; and
(b) not Process Nexudus Personal Data other than:
(i) on Nexudus’ written instructions (including the instruction set out in Paragraph 2.3); or
(ii) as strictly required by applicable laws.
2.2. To the extent permitted by applicable laws, Partner shall inform Nexudus of:
(a) any Processing to be carried out under Paragraph 2.1(b)(ii); and
(b) the relevant legal requirements that require it to carry out such Processing,
before the relevant Processing of that Nexudus Personal Data.
2.3. Nexudus instructs Partner to Process Nexudus Personal Data to the limited extent strictly necessary for Partner to comply with its obligations pursuant to and in accordance with the Agreement, including (without limitation) to provide Partner Services to Authorised Customers (as defined in each case in the Agreement), where applicable.
2.4. Annex 1 (Data Processing Details) sets out certain information regarding Partner’s Processing of Nexudus Personal Data as required by Article 28(3) of the GDPR.
2.5. Nexudus may amend Annex 1 (Data Processing Details) on written notice to Partner from time to time as Nexudus reasonably considers necessary to meet any applicable requirements of Data Protection Laws.
2.6. Nothing in Annex 1 (Data Processing Details) (including as amended pursuant to Paragraph 2.5 and/or Paragraph 15.4) confers any right or imposes any obligation on any Party to this Data Processing Addendum.
2.7. Where Partner receives an instruction from Nexudus that, in its reasonable opinion, infringes any Data Protection Laws, Partner shall immediately inform Nexudus.
3. PARTNER PERSONNEL
Partner shall take reasonable steps to ensure the reliability of any Partner’s Personnel who may Process Nexudus Personal Data, ensuring:
(a) that access is strictly limited to those individuals who need to know or access the relevant Nexudus Personal Data for the purposes described in this Data Processing Addendum; and
(b) that all such individuals are subject to confidentiality undertakings or professional or statutory obligations of confidentiality.
4.1. Taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of Processing as well as the risk (which may be of varying likelihood and severity) for the rights and freedoms of natural persons, Partner shall in relation to Nexudus Personal Data implement appropriate technical and organisational measures to ensure a level of security appropriate to that risk, including, as appropriate, the measures referred to in Article 32(1) of the GDPR.
4.2. In assessing the appropriate level of security, Partner shall take account in particular of the risks presented by the Processing, in particular from a Personal Data Breach.
4.3. Without limiting the generality of Paragraphs 4.1 and 4.2, Partner shall, and shall cause each Subprocessor to, comply with the Security Requirements.
4.4. On Nexudus’ request, Partner shall (as soon as reasonably practicable following such request) provide to Nexudus written information describing in reasonable detail the technical and organisational measures taken by Partner in relation to Nexudus Personal Data pursuant to Paragraph 4.1.
5.1. Nexudus authorises Partner to appoint Subprocessors subject to and in accordance with this Paragraph 5 and any restrictions in the Agreement.
5.2. Partner may continue to use those Subprocessors already engaged by Partner as at the date of this Data Processing Addendum (a list of whom is set out in Annex 2 (Subprocessors)), subject to Partner meeting or having met the obligations set out in Paragraph 5.6.
5.3. Partner shall be liable for the acts and omissions of all Subprocessors under or in connection with this Data Processing Addendum.
5.4. Partner warrants and represents that Annex 2 (Subprocessors) is true, complete and accurate as at the date of this Data Processing Addendum.
5.5. Partner shall give Nexudus prior written notice of the appointment of any new Subprocessor, including full details of the Processing to be undertaken by the Subprocessor. If, within ten (10) business days of receipt of that notice, Nexudus notifies Partner in writing of any objections (on reasonable grounds) to the proposed appointment:
(a) Partner shall work with Nexudus in good faith to make available a commercially reasonable change in the provision of the Services, which avoids the use of that proposed Subprocessor; and
(b) where such a change cannot be made within five (5) business days from Partner’s receipt of Nexudus’ notice, notwithstanding anything in the Agreement, Nexudus may by written notice to Partner with immediate effect terminate the Agreement either (at its option) in whole or to the extent that it relates to the Services which require the use of the proposed Subprocessor.
5.6. With respect to each Subprocessor, Partner shall:
(a) before the Subprocessor first Processes Nexudus Personal Data (or, where relevant pursuant to Paragraph 5.2, as soon as practicable following the date of this Data Processing Addendum), carry out adequate due diligence to ensure that the Subprocessor is capable of providing the level of protection for Nexudus Personal Data required by this Data Processing Addendum;
(b) ensure that the arrangement between Partner and the Subprocessor is governed by a written contract including terms which:
(i) offer at least the same level of protection for Nexudus Personal Data as those set out in this Data Processing Addendum (including those set out in Paragraph 4 and (as applicable) and Paragraph 12); and
(ii) meet the requirements of Article 28(3) of the GDPR; and
(c) provide to Nexudus for review such copies of Partner’s agreements with Subprocessors (which may be redacted to remove confidential commercial information not relevant to the requirements of this Data Processing Addendum) as Nexudus may request from time to time.
5.7. On Nexudus’ request, Partner shall (as soon as reasonably practicable following such request) provide to Nexudus:
(a) a list of the then-current Subprocessors engaged by Partner, together with the relevant information relating to each such Subprocessor as shown in Annex 2 (Subprocessors); and
(b) written certification that the arrangements between Partner and such Subprocessors meet the requirements set out in Paragraph 5.6 or Paragraph 12.2.
6. DATA SUBJECT RIGHTS
6.1. Taking into account the nature of the Processing, Partner shall assist Nexudus by implementing appropriate technical and organisational measures to enable Nexudus to fulfil its obligations (as reasonably understood by Nexudus) to respond to and otherwise address Data Subject’s exercise of their rights under the Data Protection Laws (including those set out in Chapter III of the GDPR).
6.2. Partner shall:
(a) promptly notify Nexudus if it (or any Subprocessor) receives a request from a Data Subject under any Data Protection Law in respect of Nexudus Personal Data; and
(b) ensure that it (and any Subprocessor) does not respond to that request except on the written instructions of Nexudus or as required by applicable law to which it (or such Subprocessor) is subject, in which case Partner shall to the extent permitted by applicable law inform Nexudus of that legal requirement before it (or any Subprocessor) responds to the request.
7. PERSONAL DATA BREACH
7.1. Partner shall notify Nexudus without undue delay (and in any event within twenty four (24) hours) upon Partner or any Subprocessor becoming aware of a Personal Data Breach affecting Nexudus Personal Data, providing Nexudus with sufficient information to allow it to meet any obligations under the Data Protection Laws to inform affected Data Subjects and/or Supervisory Authority(ies) of the Personal Data Breach.
7.2. At a minimum, any notification made by Partner to Nexudus pursuant to Paragraph 7.1 shall:
(a) describe the nature of the Personal Data Breach, the categories and numbers of Data Subjects concerned, and the categories and numbers of Personal Data records concerned;
(b) describe the likely consequences of the Personal Data Breach; and
(c) describe the measures taken or proposed to be taken to address the Personal Data Breach.
Partner shall (at its own cost) co-operate with Nexudus and take (and procure that any applicable Subprocessor shall take) such reasonable steps as are directed by Nexudus to assist in the investigation, mitigation and remediation of each such Personal Data Breach.
8. DATA PROTECTION IMPACT ASSESSMENT AND PRIOR CONSULTATION
Partner shall provide reasonable assistance to Nexudus with any data protection impact assessments, and prior consultations with Supervisory Authorities or other competent data privacy authorities, which Nexudus reasonably considers to be required of it by Article 35 or Article 36 of the GDPR or equivalent provisions of any other Data Protection Law, in each case solely in relation to Processing of Nexudus Personal Data by, and taking into account the nature of the Processing by, and information available to, Partner.
9.1. Nexudus shall have the right to terminate this Data Processing Addendum and the Agreement upon written notice to Partner with immediate effect:
(a) in the event of a breach of this Data Processing Addendum by Partner and/or any Subprocessor; or
(b) if Nexudus reasonably believes, in its sole discretion, that Partner and/or any Subprocessor is in breach of any Data Protection Laws.
10. DELETION OR RETURN OBLIGATIONS
10.1. Subject to Paragraphs 10.2 and 10.6, upon the date of cessation of any Services involving the Processing of Nexudus Personal Data (the “Cessation Date”), Partner shall immediately cease all Processing of Nexudus Personal Data for any purpose other than for storage.
10.2. Subject only to Paragraph 10.6, Nexudus may in its absolute discretion by written notice to Partner within ten (10) business days of the Cessation Date (“Post-cessation Storage Period”) require Partner to:
(a) return a complete copy of all Nexudus Personal Data to Nexudus by secure file transfer in such format as is reasonably notified by Nexudus to Partner; or
(b) Delete, and procure the Deletion of, all copies of Nexudus Personal Data Processed by Partner and/or any Subprocessor.
10.3. Partner shall comply with any request made pursuant to Paragraph 10.2 within fifteen (15) business days of the Cessation Date.
10.4. Promptly (and in any event within five (5) business days) following Nexudus’ confirmation of receipt of all Nexudus Personal Data returned pursuant to Paragraph 10.2(a), Partner shall Delete, and procure the Deletion of, all other copies of Nexudus Personal Data Processed by Partner and/or any Subprocessor.
10.5. In the event that during the Post-cessation Storage Period Nexudus does not instruct Partner to either Delete or return Nexudus Personal Data pursuant to Paragraph 10.2, Partner shall Delete, and procure the Deletion of, all Nexudus Personal Data promptly after, and in any event within five (5) business days following, the expiry of the Post-cessation Storage Period.
10.6. Partner and any Subprocessor may retain Nexudus Personal Data to the extent required by applicable law and only to the extent and for such period as required by applicable law and always provided that Partner shall ensure:
(a) the confidentiality of all such Nexudus Personal Data; and
(b) that such Nexudus Personal Data is only Processed as necessary for the purpose(s) specified in the applicable law requiring its storage and for no other purpose.
10.7. Partner shall provide written certification to Nexudus that it has fully complied with this Paragraph 10 within twenty (20) business days of the Cessation Date.
11. AUDIT RIGHTS
11.1. Subject to Paragraph 11.2, Partner shall make available to Nexudus on request all information necessary to demonstrate compliance with this Data Processing Addendum, and shall allow for and contribute to audits, including inspections, by Nexudus or an auditor mandated by Nexudus in relation to the Processing of Nexudus Personal Data by Partner and any Subprocessors.
11.2. Nexudus shall give Partner reasonable notice of any audit or inspection to be conducted under Paragraph 11.1 and Partner need not give access to its premises for the purposes of such an audit or inspection:
(a) outside normal business hours at those premises, unless the audit or inspection needs to be conducted on an emergency basis (pursuant to Paragraphs 11.2(b)(i) or (ii) below) and Nexudus has given notice to Partner that this is the case before attendance outside those hours begins; or
(b) for the purposes of more than one audit or inspection, in respect of Partner and each Subprocessor, in any calendar year, except for any additional audits or inspections which:
(i) Nexudus reasonably considers necessary because of genuine concerns as to Partner’s compliance with this Data Processing Addendum; or
(ii) Nexudus is required or requested to carry out by Data Protection Law, a Supervisory Authority or any similar regulatory authority responsible for the enforcement of Data Protection Laws in any country or territory.
11.3. If it is established during an audit that Partner has failed to comply with its obligations under this Data Processing Addendum Nexudus shall notify Partner and Partner shall take all measures necessary to ensure its compliance as soon as reasonably practicable.
11.4. Nexudus shall bear its own third party costs in connection with such inspection or audit, unless the findings of the audit show that Partner and/or any Subprocessor failed to comply in any material respect with the provisions of this Data Processing Addendum, in which case Partner shall indemnify Nexudus on demand for any and all such costs.
12. RESTRICTED TRANSFERS
12.1. Partner shall not make (nor instruct, permit or suffer a Subprocessor to make) a Restricted Transfer of any Nexudus Personal Data except with the prior written consent of Nexudus and in accordance with any terms Nexudus may impose on such Restricted Transfer as Nexudus deems necessary to satisfy the requirements of Data Protection Laws.
12.2. Where Nexudus provides its prior written consent in respect of a Restricted Transfer pursuant to Paragraph 12.1, the Parties agree that to allow such Restricted Transfer to take place without breach of applicable Data Protection Laws:
(a) in respect of a Restricted Transfer from Nexudus to Partner, the Standard Contractual Clauses shall be entered into by and between Nexudus as the “data exporter” and Partner as the “data importer”; and/or
(b) in respect of a Restricted Transfer from Partner to a Subprocessor, Partner shall procure the Standard Contractual Clauses shall be entered into by and between Partner as agent for Nexudus as the “data exporter” and the Subprocessor as the “data importer”.
12.3. In respect of any Standard Contractual Clauses entered into pursuant to Paragraph 12.2(a) or Paragraph 12.2(b):
(a) Clause 9 of such Standard Contractual Clauses shall be populated as follows:
“The Clauses shall be governed by the law of the Member State in which the data exporter is established.”
(b) Clause 11(3) of such Standard Contractual Clauses shall be populated as follows:
“The provisions relating to data protection aspects for sub-processing 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.”
(c) Appendix 1 to such Standard Contractual Clauses shall be populated with the corresponding information (or, in respect of Restricted Transfers to Subprocessors, the applicable subset thereof) from Annex 1 (Data Processing Details); and
(d) Appendix 2 to such Standard Contractual Clauses shall be populated as follows:
“The technical and organisational security measures implemented by the data importer in accordance with Clauses 4(d) and 5(c) are those established and maintained under Paragraph 4 of the Data Processing Addendum.”
13. CHANGE IN LAWS
13.1. Nexudus may propose any variations to this Data Processing Addendum which Nexudus reasonably considers to be necessary to address the requirements of any Data Protection Laws.
13.2. If Nexudus gives notice under Paragraph 13.1, the Parties shall promptly discuss the proposed variations and negotiate in good faith with a view to agreeing and implementing those or alternative variations designed to address the requirements identified in Nexudus’ notice as soon as is reasonably practicable.
13.3. In the event that Nexudus considers (acting reasonably) that any failure to agree its proposed variations to this Data Processing Addendum may cause Nexudus to be in breach of Data Protection Laws, Nexudus may terminate the Agreement in its entirety upon written notice to Partner with immediate effect and without liability to Partner.
14. LIABILITY AND INDEMNITY
14.1. Partner will indemnify and hold harmless Nexudus and its employees, officers, directors, agents and any Data Subjects from and against any and all liabilities, losses, damages, costs, fines and other expenses (including legal costs and fees) arising from or relating to any breach by Partner or any Subprocessor of this Data Processing Addendum or Data Protection Laws.
14.2. Any and all limitations on liability set out in the Agreement shall not apply to liability arising under or in connection with this Data Processing Addendum.
15. NEXUDUS AFFILIATES’ RIGHTS
15.1. Partner acknowledges that Nexudus has entered into this Data Processing Addendum for both itself and on behalf of, and for the benefit of, Nexudus Affiliates.
15.2. The Parties acknowledge and agree that all references to Nexudus herein shall, where the context permits and requires, be construed to refer to each Nexudus Affiliate.
15.3. Partner expressly agrees that a Nexudus Affiliate will have the right to enforce the provisions of this Data Processing Addendum with respect to Nexudus Personal Data in respect of which:
(a) that Nexudus Affiliate is a Data Controller; or
(b) Partner or any Subprocessor Processes on that Nexudus Affiliate’s behalf.
15.4. Notwithstanding the generality of Paragraph 2.5, any Nexudus Affiliate may amend and replace (with respect to that Nexudus Affiliate only) Annex 1 (Data Processing Details) on written notice to Partner from time to time to accurately reflect the nature and extent of Partner’s Processing of Nexudus Personal Data on behalf of that particular Nexudus Affiliate.
16. INCORPORATION AND PRECEDENCE
16.1. This Data Processing Addendum shall be incorporated into and form part of the Agreement.
16.2. In the event of any conflict or inconsistency between:
(a) this Data Processing Addendum and the Agreement, this Data Processing Addendum shall prevail; or
(b) any Standard Contractual Clauses entered into pursuant to Paragraph 12 and this Data Processing Addendum, those Standard Contractual Clauses shall prevail.
Annex 1 Data Processing Details
This Annex 1 includes certain details of the Processing of Nexudus Personal Data: as required by Article 28(3) GDPR; and (where applicable in accordance with Paragraph 12) to populate Appendix 1 to the Standard Contractual Clauses.
Unless otherwise defined hereunder, capitalised terms shall have the same meaning given to them in the Agreement.
- [INSERT PARTNER’S ACTIVITIES RELEVANT TO THE SERVICES AND THE PROCESSING/TRANSFER OF PERSONAL DATA IN CONNECTION THEREWITH]
Subject matter and duration of the Processing of Nexudus Personal Data
The subject matter and duration of the Processing of Nexudus Personal Data are set out in the Agreement and the Data Processing Addendum.
The nature and purpose of the Processing of Nexudus Personal Data
- Partner will Process Nexudus Personal Data in order to comply with its obligations under the Agreement, including (without limitation) to:
o Market, advertise and promote the Nexudus Platform and refer Potential Customers to Nexudus;
o Register Potential Customers on the Nexudus Portal;
o Submit Order Referrals by or on behalf of Authorised Customers; and
o Provide Partner Services (where applicable) to Authorised Customers who have entered into a Customer Agreement with Nexudus
The types of Nexudus Personal Data to be Processed
Special Categories of Personal Data (if any)
- Not applicable
The categories of Data Subject to whom Nexudus Personal Data relates
- Potential Customers (as defined in the Agreement)
- Authorised Customers (as defined in the Agreement)
The obligations and rights of Nexudus
The obligations and rights of Nexudus are set out in the Agreement and the Data Processing Addendum.
Annex 2 Subprocessors
Brief details of Processing activities:
Category(ies) of Nexudus Personal Data concerned: