Last updated: 4 Dec 2023
THESE TERMS AND CONDITIONS TOGETHER WITH THE APPLICABLE ORDERING DOCUMENT (“ORDER”) CONSTITUTE A LEGAL AGREEMENT WHICH CONTAINS THE ENTIRE AGREEMENT BETWEEN THE LICENSEE DETAILED IN THE RELEVANT ORDER (“LICENSEE” OR “YOU”) AND LISTALPHA LIMITED, A PARTNERSHIP REGISTERED IN ENGLAND AND WALES UNDER NUMBER OC448824, HAVING ITS REGISTERED OFFICE AT 10 NORWICH STREET, LONDON, EC4A 1BD DETAILED IN THE RELEVANT ORDER ("LISTALPHA"or "US"), WITH RESPECT TOTHE SUBJECT MATTER DESCRIBED HEREIN (TOGETHER THE “AGREEMENT”). LISTALPHA AND LICENSEE HEREBY AGREE AS FOLLOWS:
1. Licence and scope of agreement. In consideration of the payment of any licence fees or related service fees as detailed in the Order (“Fees”), You are hereby granted a non-exclusive, non-transferable, non-sub-licensable right to use ListAlpha's software and services as specified in the relevant Order (the "Software") and/or ListAlpha's services as specified in the relevant Order (the “Services”) as applicable, by Your authorised employees, agents and contractors (“Users”) solely for business purposes for the Term (as defined in clause 2 below). You hereby authorise ListAlpha to access your computer infrastructure to the extent necessary to set up and configure the Software for You. You will be responsible for Users’ compliance with this Agreement.
2. Term. This Agreement is effective from the effective date detailed in the relevant Order (“Effective Date”) for the period as agreed in writing between the parties in the Order (the "Term"), unless terminated earlier as set forth herein. This Agreement will terminate automatically if You fail to comply with any of the limitations or other requirements described herein. At the end of the Term or upon the request of ListAlpha, whichever is earlier, You will cease to access the Software and/or the Services as applicable, and make no further use whatsoever of the Software and/or the Services, except to the extent that may be permitted under any subsequent agreements between You and ListAlpha. You will promptly return to ListAlpha or at ListAlpha’s request permanently erase or destroy from all of Your devices and systems the Software and any of ListAlpha’s confidential information as detailed in clause 8 herein.
3. ListAlpha’s Rights. You acknowledge that all right, title, and interest in and to the Software and Services, including associated intellectual property rights, are owned by and shall remain with ListAlpha and its licensors. This Agreement does not convey to You any rights or interest in or to the Software or Services, but only a limited right of use revocable in accordance with the terms of this Agreement. All rights not expressly set forth hereunder are reserved by ListAlpha.
4. Restrictions. You will not: (i) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software (except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties), (ii) license, sell, resell, transfer, rent, lease, distribute, exploit or otherwise make the Software or Services available to anyone other than the Users, (ii) use the Software or Services to store or transmit infringing, obscene, libellous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third party privacy rights, (iv) use the Software or the Services to send spam or otherwise duplicative or unsolicited messages in violation of applicable laws, or (v) copy, modify, transmit, distribute, frame or mirror any Software in any form or media or by any means, (vi) use the Software or Services to store or transmit malicious code or in any way that is unlawful or fraudulent, (vii) interfere with, damage or disrupt the integrity or performance of the Software or Services or third party data, (viii) attempt to gain or assist third parties to gain unauthorised access to the Software or Services or their related systems or networks, or (ix) access the Software or Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
5. Payment. ListAlpha shall invoice you the full amount of the Fees on the Effective Date (as detailed in the Order). You agree to pay the Fees within 30 days of receipt of ListAlpha’s invoice to you for the same.
6. Exclusion of Warranties. The Software and Services are provided to You "as is", and any use by You of the Software and Services during the term will be at Your sole risk. ListAlpha makes no warranties relating to the Software or Services and expressly disclaims all warranties, express or implied, including without limitation those of merchantability, or fitness for a particular purpose. The foregoing provisions shall be enforceable to the maximum extent permitted by applicable law.
7. Limitation of Liability. ListAlpha’s cumulative liability to You or any other party for any loss or damages resulting from any claim arising out of or relating to this Agreement, including but not limited to liability in contract, tort (including negligence), misrepresentation, restitution or otherwise, shall not exceed the Fees paid by You hereunder. In no event shall ListAlpha be liable for any indirect, incidental, consequential, special, or exemplary damages or loss of profits or loss or corruption of data, even if You have advised ListAlpha of the possibility of such damages. The limitations of liability in this clause 7 shall apply to the fullest extent permissible at law but do not limit any liabilities which may not be excluded by law (including death or personal injury caused by negligence, fraud or fraudulent misrepresentation).
8. Confidentiality. Each Party undertakes that it shall not at any time disclose to any person or use any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, or such other information which ought reasonably to be regarded as confidential, except as permitted herein. This clause 8 shall survive termination of this Agreement for as long as information shared under this Agreement is reasonably considered confidential by the disclosing party. Information shall not be deemed to be confidential if such information (i) is, or becomes, publicly known other than through a breach of this Agreement, (ii) is in the possession of the receiving party prior to receipt thereof from the other party, (iii) is independently developed by the other party, or (iv) is lawfully disclosed to the receiving party by a third party who is not subject to a confidentiality agreement or obligation relating to such disclosure. Each party may disclose the other party’s confidential information: (i) to its employees, officers, representatives or advisors who need to know such information for the purpose of exercising that party’s rights or carrying out its obligations under this Agreement (“Permitted Purpose”), provided that each party shall ensure such persons comply with this clause 8 and shall be liable for any failure of such persons to do so; or (ii) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority. No party shall use the other party's confidential information for any purpose other than the Permitted Purpose.
9. Personal Data. Both parties agree to comply with their data protection obligations as set out in Schedule 1 (Data Processing Agreement) to this Agreement. This clause 9 in in addition to and does not relieve, remove or replace a party's obligations or rights under the Data Protection Legislation (as defined in Schedule 1).
10. General.
10.1. This Agreement does not create any agency, partnership or joint venture relationship.
10.2. ListAlpha may, but the Licensee may not without ListAlpha’s prior written consent, assign, novate, subcontract or otherwise transfer any of its rights or obligations under this Agreement.
10.3. This Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
10.4. This Agreement may be executed in counterparts, each of which shall be deemed to be an original but all of which together shall constitute a single instrument.
10.5. No variation of this Agreement shall be effective unless it is in writing and signed by the parties.
10.6. No failure or delay by either party in exercising any right or remedy provided under this Agreement or by law shall constitute a waiver, prevent or restrict the future exercise, of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
10.7. If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this Agreement.
10.8. No one other than a party to this Agreement shall have any right to enforce any of its terms.
10.9. This Agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any such dispute or claim.
Schedule 1: Data Processing Agreement
1 DEFINITIONS AND INTERPRETATION
The following definitions and rules of interpretation apply in this Schedule 1, the "DPA".
1.1 Definitions:
"Controller, Data Subject, Personal Data, Personal Data Breach, Processor, Processing/Process/Processed and Supervisory Authority" is as defined in the GDPR.
"Data Protection Legislation" means all applicable data protection and privacy legislation in force from time to time in the EU and UK, including Regulation (EU) 2016/679 ("GDPR"); the GDPR as defined in section 3(10) (as supplemented by section 205(4)) of the DPA 2018 ("UK GDPR"); the Data Protection Act 2018 ("DPA 2018"); the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC); the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended and any other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of Personal Data.
“Sub-processor” means any natural or legal person, public authority, agency, or other body which possesses Personal Data on behalf of a data Controller or a data Processor.
1.2 In the case of conflict or ambiguity between any of the provisions of this DPA and any provisions in the Agreement, the provisions of this DPA will prevail.
2 DATA PROCESSING OBLIGATIONS
2.1 The Parties acknowledge and agree that for the purposes of the Data Protection Legislation, the You are the Data Controller and ListAlpha is the Data Processor of the Personal Data and a description of the Personal Data and the Processing activities undertaken by ListAlpha is set out in paragraph 5.
3 LISTALPHA'S PROCESSING OBLIGATIONS
3.1 To the extent that ListAlpha processes any Personal Data on behalf of You in connection with the Services, ListAlpha shall:
3.1.1 only Process such Personal Data in accordance with your written instructions and only to the extent and in such a manner as is necessary for the provision of the Services;
3.1.2 shall notify You immediately if in its opinion Your instructions infringes applicable law;
3.1.3 maintain a record of its Processing activities under this Agreement in accordance with and to the extent required by;
3.1.4 ensure that access to any such Personal Data is restricted to those of its personnel who need to have access in order to perform the Services and who are subject to sufficient training and confidentiality obligations in respect of the Personal Data;
3.1.5 notify You without undue delay if it suffers a Personal Data Breach;
3.1.6 provide reasonable assistance to You in inputting into and carrying out data protection impact assessments and, to the extent required under the Data Protection Legislation, prior notification under Article 36 of GDPR; and
3.1.7 ensure that it has implemented appropriate organisational and technical measures to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data.
3.2 To the extent legally permitted, You shall be responsible for any costs arising from ListAlpha’s provision of assistance beyond the existing functionality of the Services.
3.3 ListAlpha is permitted to engage a Sub-processor to Process any of the Personal Data on Your behalf in connection with the Services. You pre-approve ListAlpha’s use of third party processors for the purposes of fulfilling its obligations, including Amazon Web Services, Microsoft Azure, Auth0, Mongo DB, Algolia, MetaBase, Google Cloud Services and Apple Inc. ListAlpha shall:
3.3.1 inform You prior to the appointment or removal of any such Sub-processor, thereby giving You an opportunity to object to the appointment or removal. If You object on reasonable grounds, ListAlpha shall either: i) alter its plans to use the Sub-Processor with respect to Personal Data, or (ii) take corrective steps to remove Your objections. If none of the above options are reasonably available or the issue is not resolved within 30 days of the objection, either Party may terminate this Agreement; and
3.3.2 ensure that such Sub-processor is subject to a written agreement which imposes on it binding contractual obligations which are equivalent to the terms imposed on ListAlpha under this Schedule;
provided that ListAlpha shall be liable for the acts and omissions of such Sub-processors in relation to the Processing of such Personal Data.
3.4 You acknowledge that ListAlpha and its Sub-Processors may Process Personal Data outside of the EEA or UK in non-adequate countries. ListAlpha will abide by the requirements of the Data Protection Legislation regarding the transfer and Processing of Personal Data from the EEA or UK. ListAlpha will ensure that transfers of Personal Data to a third country or an international organization that does not ensure an adequate level of protection are subject to appropriate safeguards as described in Article 46 of the GDPR or UK GDPR.
3.5 Upon termination or expiry of this Agreement, ListAlpha shall cease all Processing of any Personal Data Processed on Your behalf under this Agreement and shall, at Your option, return or destroy and delete all such Personal Data.
3.6 In order to demonstrate ListAlpha’s compliance with the Data Protection Legislation and the terms of this Schedule, ListAlpha shall:
3.6.1 provide You with such information as You reasonably request from time to time to enable You to satisfy yourself that ListAlpha is complying with its obligations under this Schedule and the Data Protection Legislation; and
3.6.2 allow You, at Your sole cost and expense access (on reasonable notice and no more than once a year) to its premises where Personal Data is Processed under this Agreement to allow You to audit its compliance with this Schedule and the Data Protection Legislation and shall provide reasonable co-operation as requested by You in the performance of such audit. The Parties shall agree in advance on the reasonable start date, duration and security and confidentiality controls applicable to such audit.
4 OBLIGATIONS OF LICENSEE
4.1 You shall:
4.1.1 have at all times during the Term appropriate technical and organisational measures to ensure a level of security appropriate to the risk to protect any Personal Data;
4.1.2 provide clear and comprehensible written instructions to ListAlpha for the processing of Personal Data to be carried out under this Agreement; and
4.1.3 ensure that You have all the necessary licences, permissions, consents and notices in place to enable lawful transfer of Personal Data to ListAlpha for the duration and purposes of this Agreement.
5 PROCESSING PARTICULARS
5.1 Data Subjects. Clients, contacts, potential clients
5.2 Categories of Personal Data. Name, department, company and email address.
5.3 Special Categories of Personal Data. N/A
5.4 Processing Operations. Provision of the Client Relationship Management Platform.
5.5 Duration. ListAlpha will Process the Personal Data on Your behalf for the duration of the Agreement.
