Terms & Conditions

Welcome to Pactflow’s Hosted Pact Broker Platform, ​pactflow.io​ (the ​Platform​).

1. THE FORMATION AND CONTENT OF A CONTRACT

The terms and conditions set out below (the ​Terms​) are between DiUS, (​DiUS​, ​us​, w​e​, or ​our​) and a user who accesses the Platform or uses the Services (​you​ or ​your​) and set out the terms and conditions of our relationship with you, as supplemented by our Privacy Policy. By using our hosted contract-testing collaboration software (​Services​), you thereby agree to be bound by the Terms and all applicable laws and regulations. If you don’t agree to these Terms, you must immediately discontinue your use of the Service.

These terms and any relevant specific terms (including our Privacy Policy and Data Processing Addendum) apply to and govern your use of the Service.

These Terms are subject to change at any time at our discretion and you are encouraged to review the most current terms and any relevant specific terms each time you visit the Pactflow Site (the Site). Each time you access the Site, you thereby agree to be bound by the most current version of the Terms as posted on the Site, including our Privacy Policy. Your continued use of the Platform after such changes are implemented, constitutes your acknowledgment and acceptance of the changes. If you do not wish to be bound by these terms, do not use or access the Site or the Platform or use our services.

Access to portions of the Platform may require that you agree to additional terms (​Specific Terms​) that, together with these Terms, will govern your use of the relevant Platform portions. Any relevant Specific Terms will be provided to you before you will be granted first access. Your continued access shall constitute your continued acceptance to any relevant Specific Terms.

2. AUTHORITY TO ENTER INTO THESE TERMS WITH DiUS

The use of the Services is subject to acceptance of these Terms. To accept these Terms for itself or on behalf of a Client, a person must have the legal capacity to do so. In the case of an individual, the individual must be at least 18 years of age or have valid authorisation from his/her legal representative or custodian. In the case of a legal entity, the entity must be duly incorporated and in good standing.

The Terms are accepted as soon as one of the following occurs:

  1. the person has received the confirmation of the creation of the Account and necessary credentials from DiUS in order to log in to his/her/its Account; or
  2. for those Services and parts of the Site the use of which is not dependent on creating an Account, upon the moment of gaining access to such services.

You may not, without DiUS' prior written consent, access the Services (i) for production purposes, (ii) to monitor the availability, performance or functionality of the Services or (iii) for other benchmarking or competitive purposes.

Once accepted, these Terms remain effective until terminated as provided for herein.

3. LICENSE TO USE

Subject to the Terms including the License Qualifications, DiUS grants to you a non-exclusive, non-transferable, worldwide license, without right to sub-license, for the License Term, to:

  1. have access to Platform and the Services including to updates, patches and other modifications and enhancements to the Software if and as they become available; and
  2. reproduce copies of the user manuals and other Software documentation, including updated or revised documentation, that we provide to you (theDocumentation) to the extent reasonably necessary for Users to use the Software,and to distribute and display such copies internally within Customer to Users, (the License).

4. LICENSE TERM

The term of your license (​License Term​) shall commence from the time that you agree to pay the Service Fee and, subject to the provisions for termination, shall endure as long as you pay the Service Fees in accordance with these Terms.

5. LICENSE QUALIFICATIONS

DiUS is entitled to grant similar right of use to the Platform and the Services to third parties.

The license granted to you under these Terms requires individual users (ie. one natural person) to be set up on your account. The user is not permitted to share use of or access to the Software with any other person.

You may use the Platform only for purposes expressly permitted by the Platform. You may not use the Platform for any other purpose, including any other commercial purpose. For example, you may not (and may not authorise any other party to) co-brand the Platform or frame the Platform without our express prior written permission.

The Software includes software components provided by third parties that are subject to open-source copyright license agreements (​Open Source Components​). These Open Source Components are identified in the Documentation. Customer’s use of the Open Source Components will be governed by and subject to the applicable open source license and not this Agreement.

You must not:

  1. attempt to decipher, decompile, disassemble or reverse engineer any of the software or HTML code comprising or in any way making up a part of the Site;
  2. use the Platform for any purpose that is unlawful or prohibited by these Terms, including without limitation the posting or transmitting any threatening, libelous, defamatory, obscene, scandalous, inflammatory, pornographic, profane or spam material;
  3. mislead or deceive others through any act or omission or make a false representation about your identity, including the impersonation of a real or fictitious person or using an alternative identity or pseudonym;
  4. take any action that imposes an unreasonable or disproportionately large load on the Site's infrastructure, including but not limited to "spam" or other such unsolicited mass e-mailing techniques;
  5. conduct any activity which compromises or breaches another party's patent rights, trademark, copyright or other intellectual property rights;
  6. transfer content which contravenes the confidentiality of any information, insider trading laws, intellectual property rights or which you are not authorised to transfer to another party;
  7. publish advertising material of any kind or market any goods or services directly to other users;
  8. introduce any virus, worm, Trojan horse, malicious code or other program which may damage computers or other computer based equipment to the Platform or to other users;
  9. stalk or harass anyone;
  10. attempt to disrupt or interfere with the delivery of the Hosted DiUS Broker service or the services of our partners and clients;
  11. use the details of other users for anything other than the use expressly permitted by those users;
  12. sell, redistribute or use information contained on the Hosted DiUS Broker Platform for a commercial purpose without Hosted DiUS Broker's prior written consent; nor
  13. use crawling or spider-ing of Platform content as is framing or providing unauthorised interfaces to Platform Platforms.

6. USAGE LIMITATIONS.

Use of the Service may be subject to limitations, including but not limited to number of contracts, webhooks and users. Any such limitations will be advised.

7. PROPRIETARY RIGHTS; REVERSE ENGINEERING.

As between DiUS and Customer, DiUS owns all Intellectual Property Rights of any nature whatsoever in or to the Software and the Documentation, and any derivative works of or improvements or enhancements to any of the foregoing created or developed by or on behalf of DiUS.

You acknowledge that the Service, the Software (including its structure, organization and code), the Platform and the Documentation comprise valuable property belonging to DiUS and you will not remove, obscure or alter any notice of copyright, patent, trade secret, trademark or other proprietary right or disclaimer appearing in or on any Software or Documentation.

You must not decompile, or create or attempt to create, by reverse engineering or otherwise, the source code from the executable code supplied under this Agreement or use it to create a derivative work.

You agree not to reproduce, duplicate, copy, sell, resell or exploit any portion of the Services, use of the Services, or access to the Services without our express written consent. You may not duplicate, copy or reuse any portion of the visual design elements of the Platform without our express written consent. The look and feel of the Platform and our Services is protected by copyright © belonging to DiUS.

8. USER REGISTRATION

To obtain full access to the Platform and our Services, you will be required to complete a registration. You will need to

To obtain full access to the Platform and our Services, you will be required to complete a registration. You will need to:

  1. provide certain registration details or other information; and
  2. establish an account specific to you (Account) by choosing the service plan to be provided by us.

By signing up for your Account, you agree to pay the fees in accordance with Section 8 below.

Your continued access to the Services is subject to you complying with the requests asked of you, providing true and accurate information and qualifying as a permitted user. Failure to qualify and continuously abide by any of the Terms constitutes a breach of these Terms and may result in the termination of your Account and the license to use the Platform and the Services.

You represent to DiUS that: (i) all information you provide to us, including the purpose of your registration is true and correct and you will promptly notify us of any changes to such information, and (ii) any information you provide to us in relation to third parties is done with their consent.

Your Account is for your sole use only and must not be used by any third party. You shall not allow any third party to use your Account, password, login, or user ID to access or use the Site, to arrange, enter, and/or participate in Services, or for any other purposes. You accept responsibility for all activities that occur under your Account, user ID, or password and all such use shall be deemed to be authorized by you;

9. VERIFICATION OF ACCOUNT INFORMATION

We reserve the right to conduct a review, at any time, to validate your Account information and/or to ensure that your participation in the Platform and use of the Services does not breach these Terms and/or any applicable law. You authorize us and our agents to make any inquiries of you and for us to use and disclose to any third party we consider necessary to validate this information. To facilitate the foregoing validation, you agree to provide sufficient information or documentation as we may request.

We reserve the right to terminate the License and the Account if you do not provide such information within thirty (30) days of our request, if your responses are incomplete or otherwise insufficient, or if we cannot verify the information applicable to your Account.

You acknowledge that we are entitled to detect your Internet access location and may use techniques which are intended to block or restrict access from a jurisdiction in which participation in the Platform or Services is illegal or restricted;

You must not mask your identity in any way, including without limitation, IP masking or accessing the Platform over any type of proxy server.

10. LICENSE AND USE FEES PAYMENTS

10.1 Payment of Fees.​

You will pay DiUS for the grant of the License and for the access to and use of the Service and the Software (collectively, the Subscription Fees), by credit card, through our nominated payment provider. All payments will be made in American dollars (USD). Payment will be made at the start of the subscription period. DiUS shall be entitled to impose a finance charge of 1.0% per month on amounts that remain unpaid by you on their due date. No fees are due from Customer for authorized use of the Software under a Free Trial License or Free Plan. Where you sign up to an annual plan, you will be provided with the option to pay via direct bank deposit.

10.2 Fee Increases.​

DiUS reserves the right to increase and otherwise alter the Subscription Fees and will notify you of any increase prior to it becoming effective. Notice may be in a form of an invoice. If you object to the increase, you will be entitled to terminate the License and any such termination will be effective on expiry of the month for which payment will have been made.

10.3 Taxes.​

You are responsible for any and all Goods and Services tax and other applicable taxes (​Taxes​) with respect to the licensing of the Software and/or provision of the Support Services, or otherwise arising out of or in connection with this Agreement, except for taxes based upon DiUS’ income. Unless expressly specified otherwise all Subscription Fees, rates and estimates exclude Taxes.

10.4 Electronic Payment Processors​

We may use third-party electronic payment processors and/or financial institutions (​ESPs​) to process financial transactions. By setting up your Account, you authorise us, as necessary, to instruct such ESPs to handle such transactions. You authorise us to give such instructions on your behalf in accordance with your requests as submitted on the Platform for the use of Services.

10.5 Renewals

Our services are automatically renewed at the end of each subscription period. By using the Platform or the Services, you acknowledge that your Account will be subject to automatic renewals. In all cases, if you do not wish your Account to renew automatically, please follow the directions in the Platform related to ​Termination or Cancellations of Accounts​.

11. WARRANTY

11.1 Warranties

Subject to the Warranty Qualifications, DiUS warrants to you that:

  1. the Software, in the form provided by DiUS to you under this Agreement, will perform in all material respects in accordance with its applicable specifications set forth in the Documentation, for a period of thirty (30) days following commencement of your license.
  2. it will use all commercially reasonable efforts, to ensure that the Software, in the form provided by DiUS to you under this Agreement, contains no computer virus, Trojan horse, worm, time bomb, lock-out device, cancelbot, or other similar malicious code;
  3. DiUS will perform its obligations under the Support Program in a competent and professional manner, consistent with industry standards; and
  4. To DiUS’s knowledge, the Software, as provided by DiUS to Customer under this Agreement, does not infringe any Intellectual Property Rights of any third party.

11.2 Warranty Qualifications

The warranties in this Agreement are for the sole benefit of Customer who registers and open an Account and pays the Subscription Fees in accordance with these Terms, and does not apply to any user of the free trial, free plan or any other person or entity. DiUS makes no representation or warranty which is not specifically and expressly set out in these Terms not does it make any representation or warranty in connection with the Software or the Support Program, except as set forth in Section 11.1.

To the maximum extent permitted by applicable law, except as specifically set forth in Section 11.1, DiUS disclaims all implied warranties, including any implied warranty of merchantability or fitness for a particular purpose, any implied warranty of non-infringement or implied obligation to indemnify for infringement, any warranty that use of the Platform will be uninterrupted, secure, timely or free of error any implied warranty arising from course of performance, course of dealing, or usage of trade and any statutory remedy.

12. TERM AND TERMINATION

12.1 Termination by DiUS

We may terminate these Terms, terminate your access to all or part of the Platform and/or Services, or suspend any user's access to all or part of the Platform and/or Services, at any time, without notice to you, if we believe, in our sole judgment, that you or any user connected to you have breached or may breach any term or condition of these Terms, if we believe it is required by law, or otherwise.

We retain the right and discretion to delete or retain Account data or other materials relating to your use of the Platform and/or our Services on our servers or otherwise in our possession. You acknowledge that we shall not be liable to you or to any third party for any termination of your access to the Platform and/or our Services.

We reserve the right to terminate your Account for non-payment if, by thirty (30) days after deactivation of your Account, you have not brought your Account balance current or contacted us regarding reactivation. If we terminate your Account, all of your Account Data may be deleted.

We reserve the right to terminate your Free plan Account for in active use, if your account has not been active for ninety (90) days consecutively. If we terminate your Account, all of your Account Data may be deleted.

12.2 Your Termination For Convenience

You may terminate your Account at any time before the end of your current subscription period, and you will not be charged for the use of the Services. After the first month, you may cancel your Account before the renewal date, and your account will not be renewed. You will be charged for the use of Services up to the date that cancellation of your Account becomes effective. To terminate your account you must email ​support@pactflow.io​ 5 working days before your renewal date.

12.3 Termination For Breach

If either Party materially breaches any of its obligations under this Agreement and fails to cure such breach within 30 days from the date it receives from the non-breaching Party a notice of the breach and a demand for cure, then the non-breaching Party may terminate the License and related Services immediately on notice. Without limiting the foregoing, Customer’s failure to pay past due Subscription Fees within seven (7) days of receipt of a written notice of late payment will constitute a material breach of the applicable of the License.

12.4 Survival

The provisions of Sections 6,10,13,14,15,17,18,20 and 21 of this Agreement will survive any termination or expiration of this Agreement.

13. SERVICE USE & LIMITATIONS

We will make commercially reasonable efforts to keep the Service operational twenty-four (24) hours a day, seven (7) days a week, except for: (a) planned downtime (for which we will provide at least forty eight (48) hours prior notice); or (b) any unavailability caused by circumstances beyond our control, including but not limited to, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labour problems, or Internet service provider failures or delays.

14. LIMITATIONS AND EXCLUSIONS OF LIABILITY

14.1 Exclusion of Certain Claims

In no event will either party be liable to the other party, or to any third party for any consequential, indirect, special, incidental or exemplary damages, whether foreseeable or unforeseeable (including damages for loss of data or profits), even if such party has been advised of the possibility of such damages, arising out of (i) the performance or non-performance of this agreement, the software or any services, or (ii) any claim or cause of action under this agreement, misrepresentation, strict liability, or other tort.

14.2 Limitation of Liability

DiUS’s liability arising under these Terms shall be limited to the Subscription Fees that you paid to DiUS during the six (6) month period immediately preceding your first assertion against DiUS, regardless of whether any action or claim is based in contract, misrepresentation, strict liability, or other tort.

14.3 Exceptions

Sections 14.1 and 14.2 do not apply to either party’s willful misconduct or gross negligence. Any amounts payable by an indemnified party to a third party pursuant to a judgment or to a settlement agreement approved in writing by an indemnifying party, liability for which is subject to indemnification rights under this Agreement, will be deemed direct damages for purposes of Sections 14.1. Section 14.2 does not apply to (i) Customer’s obligations to pay fees and expenses when due and payable under this Agreement, nor (ii) each party’s obligations of Confidentiality.

14.4 General

Customer agrees that the exclusions and limitations specified in this Agreement apply even if the remedies are insufficient to cover all of Customer’s losses or damages, or fail of their essential purpose and that without these limitations the fees for the License and Support Program subscription would be significantly higher. Except with respect to infringement or misappropriation by either party of any of the other party’s Intellectual Property Rights, neither party may commence any action or proceeding under this Agreement more than two years after the occurrence of the applicable cause of action.

15. RELEASE

You agree that DiUS shall not be responsible or liable for any indirect, incidental, or consequential loss or damage of any sort incurred as the result of your use of the Platform or our Services. You hereby release DiUS, its officers, employees, agents, and successors in rights from such indirect, incidental, or consequential claims, demands, and damages (actual and consequential) incurred by You of every kind or nature, known or unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way related to our Platform or our Services.

If you are a California resident, you waive California Civil Code Section 1542, which says: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor."

16. INDEMNIFICATION

You agree to defend, indemnify and hold DiUS, its subsidiaries, affiliates, licensors, content providers, service providers, employees, agents, officers, directors, and contractors (the "Indemnified Parties") from and against any and all liability, loss or damage, cost or expense, including but not limited to court costs, attorneys' fees, and any awards or damages incurred by DiUS as a result of, in connection with, or relating to third party claims alleging or asserting from your use of our Services or of the Site, when our use of the Services or the site is not in compliance with this Agreement.

17. THIRD PARTY WEBSITES

We may provide links and pointers to Internet sites maintained by others who are independent from DiUS (​Third-Party Sites​). We have not reviewed all of the Third-Party Sites linked to the Platform and are not responsible for the content of or any products or services offered on such Third-Party Sites. DiUS makes no representation or warranty as to the accuracy, completeness or authenticity of the information contained in any such website. Accessing any other website from the Platform is at your own risk.

From time to time, DiUS may display or otherwise make available promotions, advertisements and/or offers provided by third parties (​Third-Party Promotions​). You understand and agree to hold DiUS harmless and agree that DiUS shall have no liability whatsoever for such Third-Party Promotions. If you participate in, click on, or otherwise link to such Third-Party Promotions you do so solely at your own risk. Your sole remedy in connection with such Third-Party Promotions will be with the third party.

18. CONFIDENTIALITY

18.1 Restrictions on Use and Disclosure.

"Confidential Information" means all information transmitted by either party to the other pursuant to or in connection with these Terms that the disclosing party identifies as being proprietary or confidential or that, by the nature of the circumstances surrounding the disclosure, ought in good faith to be treated as proprietary or confidential. The receiving party will not disclose the disclosing party’s Confidential Information to any third party, and will protect the disclosing party’s Confidential Information using the same degree of care it uses to protect its own Confidential Information, and in no event less than a reasonable standard of care. The receiving party will make no use of such Confidential Information except under the terms and during the term of this Agreement. DiUS’s Confidential Information includes the Documentation and information regarding the Software and Services. DiUS and Customer will treat the terms and conditions of this Agreement as confidential; however, either party may disclose such information in confidence to its immediate legal and financial consultants as required in the ordinary course of that party’s business. Confidential Information will not include information that the receiving party can establish: (i) has entered the public domain without the receiving party’s breach of any obligation owed to the disclosing party; (ii) has been rightfully received by the receiving party from a third party without confidentiality restrictions; (iii) is known to the receiving party without any restriction as to use or disclosure prior to first receipt by the receiving party from the disclosing party hereunder; or (iv) has been independently developed by the receiving party.

18.2 Disclosure Required By Law.

If any applicable law, regulation or judicial or administrative order requires the receiving party to disclose any of the disclosing party’s Confidential Information (a "Disclosure Order") then, unless otherwise required by the Disclosure Order, the receiving party will promptly notify the disclosing party in writing prior to making any such disclosure, ​in order to​ facilitate the disclosing party’s efforts to protect its Confidential Information. Following such notification, the receiving party will cooperate with the disclosing party, at the disclosing party’s reasonable expense, in seeking and obtaining protection for the disclosing party’s Confidential Information.

18.3 Independent Development.

The terms of confidentiality under this Agreement will not limit either party’s right to independently develop or acquire products without use of the other party’s Confidential Information

19. TRADEMARKS, TRADE NAMES, AND SERVICE MARKS

Unless otherwise indicated, all logos, names, package designs, and marks on the Platform are trademarks or service marks owned or used under license by us or our business partners. The use or misuse of any of these marks or other information is strictly prohibited.

We grant you permission to print individual pages from the Site, unless otherwise expressly noted, for your non-commercial use in learning about and evaluating the services or products offered on the Site. No other permission is granted to you to print, copy, reproduce, distribute, license, transfer, sell, transmit, upload, download, store, display in public, alter, modify, or create derivative works of these materials.

This grant of permission is not a transfer of title, and under this permission you may not: use the materials for any commercial purpose, or for any public display (commercial or non-commercial); remove any copyright, trademark, or other proprietary notations from the materials; or transfer the materials to another person or "mirror" the materials on any other server, except as permitted by law.

We make no warranties or representations to you that your use of any materials displayed on the Platform will not infringe the rights of third parties. In addition, you may not remove or alter, or cause to be removed or altered, any copyright, trademark, trade name, service mark, or any other proprietary notice or legend appearing on any of the content. Modification or use of this content except as expressly provided in these Terms violates DiUS' intellectual property rights. Neither title nor intellectual property rights are transferred to you by your access to the Site.

20. COPYRIGHT & INTELLECTUAL PROPERTY

DiUS does not review all of the material posted on or submitted through the Platform and has no responsibility for any content that you may find or access when using the Site, products, or the Services.

DiUS takes all concerns related to intellectual property seriously and it is our policy, at our discretion and in appropriate circumstances, to cancel, disable or terminate any user's Account who infringes or appears to infringe the intellectual property rights of others.

21. SUBMITTED INFORMATION

21.1 Use of Information

During the term of your license or use of the Site, DiUS may acquire from you raw data, suggestions, ideas, enhancement requests, feedback, recommendations ideas, notes, drawings, graphics, concepts or other information that you submit to, or otherwise as a result of your use of the Site or the Software including information relating to the features, functionality or operation of the Site or Software (Collectively, Acquired Information). Subject to the terms of our Privacy Policy, DiUS shall be entitled to use the Acquired Information for any purpose, without your consent or any compensation to you or anyone else.

We may from time to time monitor, review, and, in our sole discretion, modify or delete any postings you make on the Site, however, we are not obligated to do so.

21.2 Enhancements

We may analyze the Acquired Information, your usage history and statistics (collectively, ​Enhancement Data​) for our internal purposes, including to improve and enhance the Software and related services. You authorize us and agree not to interfere with the Software’s transmission of Enhancement Data to us. Subject to the terms of our Privacy Policy, we may make information derived from its analysis of Enhancement Data publicly available, provided that the publicized information does not include any Enhancement Data that has not been aggregated and anonymized. For the purposes of this Agreement, aggregated and anonymized Enhancement Data means Enhancement Data that (i) has been aggregated with other data, and (ii) does not contain information that identifies you. For the sake of clarity, aggregated and anonymized data is not Confidential Information.

22. GENERAL PROVISIONS

22.1 Publicity; References.​

We shall be entitled to refer to you, including in newsletters or other publicly available information, as one of our customers and use your logo as part of such reference, unless you provide written confirmation that you do not permit us to do so.

22.2 Captions and Headings.

The captions and headings are inserted in this Agreement for convenience only, and will not be deemed to limit or describe the scope or intent of any provision of this Agreement.

22.3 Severability; Invalidity

If any provision of this Agreement is held to be invalid, such invalidity will not render invalid the remainder of this Agreement or the remainder of which such invalid provision is a part. If any provision of this Agreement is so broad as to be held unenforceable, such provision will be interpreted to be only so broad as is enforceable.

22.4 Waiver

No waiver of or with respect to any provision of this Agreement, nor consent by a party to the breach of or departure from any provision of this Agreement, will in any event be binding on or effective against such party unless it be in writing and signed by such party, and then such waiver will be effective only in the specific instance and for the purpose for which given.

22.5 Third Party Beneficiaries.​

Except as expressly set forth in this Agreement, no provisions of this Agreement are intended nor will be interpreted to provide or create any ​third party​ beneficiary rights or any other rights of any kind in any other party.

22.6 Assignment Captions and Headings.

You must not assign any of your rights under this Agreement without DiUS’ prior written consent, which will not be unreasonably withheld. Subject to the foregoing restriction on assignment by you, this Agreement will be binding upon, inure to the benefit of and be enforceable by the parties and their respective successors and assigns.

22.7 Entire Agreement; Amendments;

This Agreement constitutes and embodies the entire agreement and understanding between the parties with respect to the subject matter hereof and supersedes all prior or contemporaneous written, electronic or oral communications, representations, agreements or understandings between the parties with respect thereto. All Software and related services licensed or purchased, as applicable, by Customer under this Agreement will be subject to the terms and conditions of this Agreement.

22.8. EU General Data Protection Regulation

If you’re located in the European Economic Area, the United Kingdom, or Switzerland (collectively, the "EEA"), and/or otherwise collect information through the Service from, anyone located in those countries (each such Member an "EEA Member"), you agree, represent and warrant (as applicable) to DiUS that:

You will provide and obtain all notices and obtain all necessary consents required by applicable data protection laws to enable DiUS to deploy cookies and similar tracking technologies (like web beacons or pixels) lawfully on and collect data from the devices of your users in accordance with and as described in the Privacy Policy.

You are subject to DiUS' Data Processing Addendum ("DPA"), which will apply when and to the extent DiUS processes Personal Data protected by Data Protection Laws applicable to the EEA (all as defined in the DPA). The DPA sets out our obligations with respect to data protection and security when processing such Personal Data in connection with the Service and forms part of these Terms.

You agree to indemnify and hold us harmless from any losses, including all legal fees and expenses, that result from your breach of this Section 22.

Addendum - Data Processing Agreement

This Data Processing Agreement ("DPA") is incorporated into, and is made an additional part of the terms and conditions of the Agreement between DiUS (together with its Product, "Pactflow" referred to herein as the “Company”) and the party identified as the customer of the Service (or "you") in the Agreement ("Customer").

All capitalized terms not defined in this DPA shall have the meanings set forth in the Agreement. For the avoidance of doubt, all references to the "Agreement" shall include this DPA. This DPA applies where and only to the extent that DiUS processes Personal Data that is protected by Data Protection Laws applicable to the EEA and only to the extent that the GDPR imposes obligations on DiUS.

WHEREAS

  • (A) The Company acts as a Data Controller.
  • (B) The Company wishes to subcontract certain Services, which imply the processing of personal data, to the Data Processor.
  • (C) The Parties seek to implement a data processing agreement that complies with the requirements of the current legal framework in relation to data processing and with 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, and repealing Directive 95/46/EC (General Data Protection Regulation).
  • (D) The Parties wish to lay down their rights and obligations.

IT IS AGREED AS FOLLOWS:

1. Definitions and Interpretation

1.1 Unless otherwise defined herein, capitalized terms and expressions used in this Agreement shall have the following meaning:

1.1.1 “Agreement” means this Data Processing Agreement and all Schedules;

1.1.2 “Company Personal Data” means any Personal Data Processed by a Contracted Processor on behalf of Company pursuant to or in connection with the Principal Agreement;

1.1.3 “Contracted Processor” means a Subprocessor;

1.1.4 “Data Protection Laws” means EU Data Protection Laws and, to the extent applicable, the data protection or privacy laws of any other country;

1.1.5 “EEA” means the European Economic Area;

1.1.6 “EU Data Protection Laws” means EU Directive 95/46/EC, as transposed into domestic legislation of each Member State and as amended, replaced or superseded from time to time, including by the GDPR and laws implementing or supplementing the GDPR;

1.1.7 “GDPR” means EU General Data Protection Regulation 2016/679;

1.1.8 “Data Transfer” means:

1.1.8.1 a transfer of Company Personal Data from the Company to a Contracted Processor; or

1.1.8.2 an onward transfer of Company Personal Data from a Contracted Processor to a Subcontracted Processor, or between two establishments of a Contracted Processor, in each case, where such transfer would be prohibited by Data Protection Laws (or by the terms of data transfer agreements put in place to address the data transfer restrictions of Data Protection Laws);

1.1.9 “Services” means the hosted contract-testing collaboration software the Company provides.

1.1.10 “Subprocessor” means any person appointed by or on behalf of Processor to process Personal Data on behalf of the Company in connection with the Agreement.

1.2 The terms, “Commission”, “Controller”, “Data Subject”, “Member State”, “Personal Data”, “Personal Data Breach”, “Processing” and “Supervisory Authority” shall have the same meaning as in the GDPR, and their cognate terms shall be construed accordingly.

2. Processing of Customer Personal Data

2.1 Processor shall:

  • 2.1.1 comply with all applicable Data Protection Laws in the Processing of Company Personal Data; and
  • 2.1.2 not Process Company Personal Data other than on the relevant Company’s documented instructions.

2.2 The Company instructs Processor to process Company Personal Data.

3. Processor Personnel

Processor shall take reasonable steps to ensure the reliability of any employee, agent or contractor of any Contracted Processor who may have access to the Personal Data in the Company’s possessions (“Company Personal Data”), ensuring in each case that access is strictly limited to those individuals who need to know / access the relevant Company Personal Data, as strictly necessary for the purposes of the Principal Agreement, and to comply with Applicable Laws in the context of that individual’s duties to the Contracted Processor, ensuring that all such individuals are subject to confidentiality undertakings or professional or statutory obligations of confidentiality.

4. Security

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 of varying likelihood and severity for the rights and freedoms of natural persons, Processor shall in relation to the Company Personal Data implement appropriate technical and organizational 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, Processor shall take account in particular of the risks that are presented by Processing, in particular from a Personal Data Breach.

5. Subprocessing

5.1 Processor shall not appoint (or disclose any Company Personal Data to) any Subprocessor unless required or authorized by the Company.

6. Data Subject Rights

6.1 Taking into account the nature of the Processing, Processor shall assist the Company by implementing appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of the Company obligations, as reasonably understood by Company, to respond to requests to exercise Data Subject rights under the Data Protection Laws.

6.2 Processor shall:

  • 6.2.1 promptly notify Company if it receives a request from a Data Subject under any Data Protection Law in respect of Company Personal Data; and
  • 6.2.2 ensure that it does not respond to that request except on the documented instructions of Company or as required by Applicable Laws to which the Processor is subject, in which case Processor shall to the extent permitted by Applicable Laws inform Company of that legal requirement before the Contracted Processor responds to the request.

7. Personal Data Breach

7.1 Processor shall notify Company without undue delay upon Processor becoming aware of a Personal Data Breach affecting Company Personal Data, providing Company with sufficient information to allow the Company to meet any obligations to report or inform Data Subjects of the Personal Data Breach under the Data Protection Laws.

7.2 Processor shall co-operate with the Company and take reasonable commercial steps as are directed by Company to assist in the investigation, mitigation and remediation of each such Personal Data Breach.

8. Data Protection Impact Assessment and Prior Consultation

Processor shall provide reasonable assistance to the Company with any data protection impact assessments, and prior consultations with Supervising Authorities or other competent data privacy authorities, which Company reasonably considers to be required by article 35 or 36 of the GDPR or equivalent provisions of any other Data Protection Law, in each case solely in relation to Processing of Company Personal Data by, and taking into account the nature of the Processing and information available to, the Contracted Processors.

9. Deletion or return of Company Personal Data

9.1 Subject to this section 9 Processor shall promptly and in any event within 10 business days of the date of cessation of any Services involving the Processing of Company Personal Data (the “Cessation Date”), delete and procure the deletion of all copies of those Company Personal Data.

10. Audit rights

10.1 Subject to this section 10, Processor shall make available to the Company on request all information necessary to demonstrate compliance with this Agreement, and shall allow for and contribute to audits, including inspections, by the Company or an auditor mandated by the Company in relation to the Processing of the Company Personal Data by the Contracted Processors.

10.2 Information and audit rights of the Company only arise under section 10.1 to the extent that the Agreement does not otherwise give them information and audit rights meeting the relevant requirements of Data Protection Law.

11. Data Transfer

11.1 The Processor may not transfer or authorize the transfer of Data to countries outside the EU and/or the European Economic Area (EEA) without the prior written consent of the Company. If personal data processed under this Agreement is transferred from a country within the European Economic Area to a country outside the European Economic Area, the Parties shall ensure that the personal data are adequately protected. To achieve this, the Parties shall, unless agreed otherwise, rely on EU approved standard contractual clauses for the transfer of personal data.

12. General Terms

12.1 Confidentiality.

Each Party must keep this Agreement and information it receives about the other Party and its business in connection with this Agreement (“Confidential Information”) confidential and must not use or disclose that Confidential Information without the prior written consent of the other Party except to the extent that:

  1. disclosure is required by law;
  2. the relevant information is already in the public domain.

12.2 Notices. All notices and communications given under this Agreement must be in writing and will be delivered personally, sent by post or sent by email to the address or email address set out in the heading of this Agreement at such other address as notified from time to time by the Parties changing address.

13. Governing Law and Jurisdiction

13.1 This Agreement is governed by the laws of Australia.

13.2 Any dispute arising in connection with this Agreement, which the Parties will not be able to resolve amicably, will be submitted to the exclusive jurisdiction of the courts of Australia.

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