1. Definitions and Interpretation
1.1 In these Terms, unless the context requires otherwise, the following words have the following meanings:
‘Agreement’ means the agreement comprising the Subscription Summary page of the Website as confirmed by the Customer, these Terms and all documents explicitly referred to herein;
‘Authorised Users’ means employees, staff or other representatives of Customer who have been specifically authorised by Customer to access and use the Dashboard and which are notified to TCAT in writing, according to the limited number permitted in respect of the relevant Subscription Tier as described on the Website;
‘Business Day’ means any weekday other than a bank holiday in the United Kingdom;
‘Confidential Information’ means all information and material (including any copies or other material incorporating all or part of the Confidential Information or referring to the Confidential Information) disclosed directly or indirectly at any time by any and all means, methods and formats by or on behalf of the disclosing party which is marked as confidential or which the receiving party should reasonably understand to be confidential, including any information or material relating to its software, algorithms, systems, operations, opportunities, business plans, intentions, market opportunities know-how, trade secrets, Intellectual Property Rights, personnel, research, costs, prices, finances and business affairs;
‘Customer’ means the customer identified on the Subscription Summary;
‘Customer Data’ means all data relating to Customer Sound Recordings and/or Products as provided by Customer to TCAT;
‘Customer Sound Recordings means the Customer-controlled sound recordings;
‘Dashboard’ means the graphical user interface accessed via a hosted environment or environments that Authorised Users are permitted access to by TCAT for the purpose of receiving the Services;
‘Fees’ means the fees payable by Customer for the provision of the Services as set out in the Subscription Summary;
‘Force Majeure’ means any cause beyond a party's reasonable control which prevents that party from performing any of its obligations hereunder including acts of God, insurrection or civil disorder, pandemic, epidemic, war or military operations, national or local emergency, acts or omissions of government or regulatory authorities, failure of public communications networks, terrorism, fire, flood, lightning, explosion or subsidence;
‘Initial Term’ means the initial period for which the Services are to be provided as set out in the Subscription Summary;
‘Intellectual Property Rights’ means copyright, database rights, patents, trademarks, rights in any designs; applications for any of the foregoing; trade or business names; domain name registrations; topography rights; know-how; secret formulae and processes and all proprietary rights and forms of protection whether registered or not of a similar nature to any of the foregoing or having equivalent effect anywhere in the world;
‘Service Minimum” means the minimum number of Customer Sound Recordings or Products in respect of which TCAT shall provide the Services, as described on the Website for each Subscription Tier;
‘Normal Business Hours’ means the hours of 9.00 – 17.00 in the United Kingdom;
‘Platforms’ means the third-party music or other content services which are monitored or searched by TCAT as part of the Services, as described on the Website for each Subscription Tier;
‘Products’ means commercial products released by Customer which incorporate Customer Sound Recordings, such as an album or single;
‘Release Territory Audit Services’ means identification of the availability of Products on the Platforms in each Service Territory and provision to Customer of access to the Dashboard where TCAT will report and make available Results Data for export;
‘Result Data’ means all data provided to Customer as a result of the Services, but excluding Customer Data;
‘Services’ means the services to be provided by TCATas described on the Website for each Subscription Tier ;
‘Service Term’ means, in respect of each Service the term during which the Services are to be provided as set out in Clause 10 of these Terms;
‘Service Territory’ means, in respect of each Service, the Territory in which the Services are to be provided as described on the Website in respect of each Subscription Tier, and as may be further described in the Service Summary, or if not specified therein, shall mean all territories in which the relevant Platforms are available to the public;
‘TCAT’ means TCAT Limited, whose registered office is located at c/o Tughans Llp, The Ewart, 3 Bedford Square, Belfast Northern Ireland, BT2 7EP;
‘Technical Data Requirements’ means the data fields, file format and delivery processes for the delivery of Customer Sound Recordings and Customer Data as reasonably set by TCAT and communicated to Customer from time to time, which communication may be via the Dashboard;
‘Terms’ means the standard TCAT Terms and Conditions in force as at the time of the confirmation of the Subscription Tier, or as updated by TCAT from time to time and where, following which update, (i) the Customer agrees to the new Terms, which may be by way of notification and acceptance of such Terms via the Dashboard or (ii) the Customer’s Subscription renews;
‘Tools’ means the technology utilised by TCAT to deliver the Services;
‘Track Monitoring Services’ means identification of third-party content that uses Customer Sound Recordings solely on the Platforms and provision to Customer of access to the Dashboard where TCAT will report and make available Results Data for export;
'Subscription’ means the Customer’s ongoing subscription to the Services, as described in the Subscription Summary;
‘Subscription Tier’ means a bundle of services, functionalities and prices as each is described on the Website from time to time;
'Subscription Summary” means the checkout page of the Website (or the website of TCAT’s merchant) immediately prior to Customer confirmation of the agreement, which summarises the features of the Subscription Tier selected by the Customer via the Website;
‘User Data’ means the name, email address, log-in credentials and other details provided by or on behalf of Authorised Users by way of registration in order to access the Dashboard; and
‘Website’ means TCAT’s website at www.tcat.media and all subdomains thereof.
1.2 A reference to a party is a reference to a party to the Agreement. References to a person include individuals, firms, companies, partnerships and any other organisations whether or not having separate legal personality. The terms include and including shall be construed as illustrative, without limiting the sense or scope of the words preceding them. Use of the singular includes the plural and vice versa and words denoting any gender include all genders. Clause headings are for convenience only and do not affect the construction or interpretation of the Agreement. Any reference to a Clause in this Master Services Agreement is a reference to a clause in this Master Services Agreement.
2. Services
2.1 In consideration of and subject to Customer’s payment of the Fees to TCAT, TCAT agrees to provide the Services to Customer during the Service Term in the Service Territory on a non-exclusive, non-transferable, non-sub-licensable basis subject to these Terms.
2.2 The Services shall be provided in respect of the number of Customer Sound Recordings and/or Products as permitted under the relevant Subscription Tier as described on the Website.
2.3 Any amendments to the number of Customer Sound Recordings and/or Products in respect of which the Services are to be provided, or any replacement of any Customer Sound Recordings and/or Products with other Customer Sound Recordings and/or Products (provided, in the case of Customer Sound Recordings, that the swapped out Customer Sound Recording has been monitored for a minimum of thirty (30) days prior to being swapped out) shall be implemented by TCAT within 72 hours of notification to TCAT via the Dashboard.
2.4 TCAT reserves the right at any time to update any of the Tools, the Dashboard and the Services with improved or additional features and/or functionality (together ‘New Features’). TCAT may also from time to time introduce new services. TCAT is entitled to require payment for new services which it introduces and such fees will be notified to Customer. Customer is under no obligation to use any such new services but if it does so the relevant fees will be payable.
2.5 TCAT may amend the services, functionalities and/or price of any Subscription Tier at any time by notifying the Customer, which may be by email or via the Dashboard, and all such changes shall take effect upon the next renewal of the Customer’s Subscription.
2.6 Where TCAT provides technical support services, as set out on the Website in respect of the relevant Subscription Tier the following provisions shall apply:
2.6.1 TCAT will provide support to Customer to manage and resolve genuine incidents where the Dashboard and the Services are not operating to provide the Services according to the Services forming part of the relevant Subscription Tier, as described on the Website, for example where there is a “bug” or outage (an ‘Incident’).
2.6.2 Customer will their best endeavours to assess all queries, complaints or reports of Incidents from Authorised Users so that only genuine Incidents are raised to TCAT. Customer shall not put any Authorised Users in contact with TCAT unless agreed in writing by TCAT’s most senior service manager.
2.6.3 All Incidents must be reported to TCAT at support@tcat.media
2.6.4 Customer will appoint a single representative (the ‘Customer Representative’) to act as a single point of contact for TCAT to liaise with in respect of all support services. Customer must promptly notify TCAT via email of the identity and contact details of the appointed Customer Representative. Customer must immediately inform TCAT if and when the Customer Representative and/or the Customer Representative's contact details change.
2.6.5 The Customer Representative will operate as a single point of contact to manage communications between TCAT and any stakeholders at Customer in respect of all support service requests, including obtaining decisions from Customer and information required by TCAT to fulfil any support service requests.
2.6.6 TCAT will be responsible for processing a support service request only where they are submitted by the Customer Representative in accordance with this policy.
2.6.7 TCAT shall use all reasonable endeavours to respond to and resolve Incidents during Normal Business Hours on Business Days only.
3. Supply of Customer Data to TCAT
3.1 Customer shall submit Customer Sound Recordings and Customer Data to TCAT for ingestion into the Tool according to the Technical Data Requirements.
3.2 TCAT shall process Customer Data according to the standard TCAT Data Processing Agreement set out below and the parties agree to all the terms thereof.
3.3 Customer shall communicate to TCAT in the Customer Data the territorial rights that Customer has for each Customer Sound Recording and/or Product.
4. Fees
4.1 In consideration of the provision of the Services by TCAT, Customer agrees to pay TCAT the Fees and TCAT may take payment using stored payment information upon or at any time following renewal of the Subscription without further notice to the Customer. TCAT may waive the Fees in respect of a free trial period if specified in the Subscription Summary, following which the Subscription will renew upon the Subscription Tier specified in the Subscription Summary if the Customer has provided valid payment information. TCAT may, at its discretion pause the commencement or provision of the Services until payment is received for any Fees specified in in a Subscription Summary or in any other agreement between TCAT and the Customer to be payable in advance.
4.2 All amounts stated in the Agreement are exclusive of VAT, which shall be payable (if applicable) within the timescale referred to above following receipt of a valid VAT invoice.
4.3 TCAT may charge, and if so Customer shall pay, interest on any sums overdue under the Agreement at the rate of three per cent (3%) per annum above the Bank of England official Bank Rate from time to time from the due date until the date of payment in full. Such interest shall accrue and be calculated on a daily basis. The parties acknowledge that this provision is intended to be a substantial contractual remedy for late payment of any sums due and is in lieu of any sums due under the Late Payment of Commercial Debts (Interest) Act 1998 and/or the Late Payment of Commercial Debts Regulations 2002. The exercise by TCAT of its rights under this Clause shall be without prejudice to any other rights and remedies available to TCAT under the Agreement or otherwise.
4.4 TCAT may at any time, without prejudice to any other rights it may have, set off any liability of TCAT to Customer against any liability of Customer to TCAT.
5. Access to TCAT Dashboard
5.1 Customer shall take all commercially reasonable steps according to good industry practice to ensure that no person or entity shall have unauthorized access to or use of the Dashboard.
5.2 Access to the Dashboard under the same or a single set of User Data by multiple Authorised Users is prohibited.
5.3 TCAT reserves the right without notice to suspend or terminate access to the Services for any user Data in the event of unauthorised use (or suspected unauthorised use) of such User Data.
5.4 Without prejudice to the generality of the foregoing, Customer agrees as follows:
5.4.1 it will use reasonable endeavours to ensure that no User Data is permitted to be given to any person or used by any person other than Authorised Users;
5.4.2 the security and confidentiality of each such User Data is ultimately the responsibility of Customer, whatever additional terms may be agreed or imposed as between Customer and the Authorised User;
5.4.3 it will promptly notify TCAT to terminate access to the Dashboard for any Authorised User who leaves the employment of Customer or ceases to act as an agent of Customer;
5.4.4 it will inform TCAT immediately if it becomes aware that any User Data has been compromised or disclosed to third parties; and
5.4.5 in any event Customer is solely responsible for all access to the Dashboard by any user who uses the User Data of an Authorised User.
5.5 Customer undertakes to ensure that Authorised Users do not:
5.5.1 upload, post, transmit, distribute, or otherwise publish through the Dashboard any data that:
5.5.1.1 is deliberately inaccurate, misleading, false or which contains misleading indications of origin or statements of fact;
5.5.1.2 contains a virus or other harmful component;
5.5.1.3 is defamatory, indecent, obscene, or which would, if published, constitute a contempt of court, or which promotes violence or illegal activities or promotes discrimination based on race, sex, religion, national origin, physical disability or age;
5.5.1.4 is harmful, threatening, abusive, harassing, or invasive of another's privacy; or
5.5.1.5 breaches the rights, including the Intellectual Property Rights or data privacy rights, of any third party;
5.5.2 impersonate any person or entity or misrepresent their affiliation with, or authority from, Customer or any other person or entity;
5.5.3 engage in spamming, flooding, harvesting of e-mail addresses or other personal information, spidering, screen scraping, database scraping, or any other activity with the purpose of obtaining lists of users or other information (including any activity which involves accessing or interrogating cookies for purposes which are unrelated to the Services);
5.5.4 except as permitted by law, copy, publish, distribute, reverse engineer, decompile, or modify any source code or object code of any part of the Dashboard, or circumvent any copy protection mechanism or data security measures in operation on the Dashboard, or attempt to do any of the foregoing;
5.5.5 act in any way that would damage, disable, overburden, or impair the Dashboard;
5.5.6 make use of the Dashboard for any unlawful or illegal act;
5.5.7 attempt to gain unauthorised access to other company workspaces or access to other computer systems or databases through the Dashboard except as enabled and permitted by the Dashboard, or to obtain (or attempt to obtain) any materials or information by any means not intentionally made available or provided for on the Dashboard; or
5.5.8 attempt to restrict, inhibit or prevent any other authorised user from accessing the Dashboard.
5.6 Without prejudice to any other rights or remedies it may have, TCAT reserves the right without notice to suspend or terminate access to the Dashboard for any one or more Authorised Users if in TCAT’s sole but reasonable discretion usage by such Authorised User(s) does or might amount to a breach of the Agreement.
6. Intellectual Property Rights
6.1 Customer grants to TCAT for the duration of the Agreement a non-exclusive, non-transferable, limited licence to use Customer Sound Recordings and Customer Data for the purposes of providing the Services pursuant to the Agreement.
6.2 The parties agree that:
6.2.1 all Intellectual Property Rights in Customer Sound Recordings, Customer Data and Results Data shall be the property of Customer; and
6.2.2 all Intellectual Property Rights in the Tools and the Dashboard, including but not limited to software, systems, user interfaces, data formats or processes, including all improvements and amendments made to the same during the term of the Agreement, whether or not on the suggestion or instruction of Customer, shall remain the property of TCAT; and
6.2.3 Customer grants TCAT a perpetual, non-sub-licensable, fee-free licence to use Customer Data and Results Data to generate aggregated statistical data which does not identify any Customer Sound Recordings or Customer Data and TCAT shall be the owner of all Intellectual Property Rights in such aggregated statistical data and be entitled to use if for its own business purposes, subject that (i) upon expiry or termination of the Agreement for any reason TCAT shall anonymise all such Customer Data and Results Data held by TCAT so as not to identify Customer Sound Recordings or any Customer artist (ii) and TCAT shall not release Customer Data and Results Data without Customer’s written approval.
6.3 Nothing in the Agreement shall prevent or restrict TCAT from using freely data in its own database which is obtained from third party sources but which mirrors Customer Data received from Customer.
7. Confidentiality
7.1 Each party shall keep all Confidential Information disclosed, obtained or revealed pursuant to the Agreement confidential and not disclose or reveal it to anyone (except on a need-to-know basis to its employees, officers and professional advisors upon terms of confidentiality at least as restrictive as set out herein) and use such Confidential Information only in relation to the provision and receipt of the Services.
7.2 The foregoing shall not apply to the extent that (i) the Confidential Information is or becomes public knowledge (otherwise than as a result of any breach of confidentiality); (ii) disclosure is compelled by law or by a competent judicial or regulatory body, provided that in such case the party so compelled shall, if permitted by law, promptly notify the party whose Confidential Information is due to be, or has been disclosed, and allow them reasonable opportunity to remove or exclude the Confidential Information from such legal obligation to disclose; or (iii) disclosure is made by either party to its professional advisers (who are bound by a duty of confidence) solely for the purpose of them giving advice in respect of the Services.
8. Warranties
8.1 Each party represents and warrants that:
8.1.1 it has the full corporate right, power and authority to enter into the Agreement and to perform the acts required of it under the Agreement;
8.1.2 the entering into of the Agreement and performance of its obligations under the Agreement do not and shall not violate any other agreement to which it is party; and
8.1.3 the Agreement constitutes the legal, valid and binding obligation of such party when executed and delivered.
8.2 Customer warrants that it has all the necessary rights to grant the licence to use Customer Sound Recordings and Customer Data that is stated to be granted hereunder.
8.3 Customer acknowledges that the data supplied by TCAT hereunder derives from a range of third party sources and TCAT are unable to verify the accuracy, adequacy or completeness of such data and consequently neither party shall be liable to the other in respect of the same.
8.4 Customer acknowledges that:
8.4.1 The TCAT system continually monitors stores and consumes samples for fingerprinting with associated metadata. Given the volume of new titles that are continually added to the stores, there is a potential lag between a new title being discovered by the TCAT system and processed for inclusion within the TCAT database. TCAT does not therefore stipulate that a title infringement will be detected instantly upon addition to a store;
8.4.2 Due to the nature of fingerprinting technology, it is possible that the TCAT platform can indicate a false positive audio match. The audio should be reviewed alongside the metadata and risk calculation when deciding if a track is a true infringement or a legitimate track (or a mismatch); and
8.4.3 The TCAT system can only match a reference track against a store track if the store provides a sample in a consumable format for the TCAT system. If a sample is not provided, only a metadata check can be performed by the TCAT system, a fingerprint match cannot be performed.
8.5 Customer acknowledges that any reports provided by TCAT regarding potentially infringing material identified by TCAT are not a representation by TCAT that such material infringes the rights of Customer or any other person and it is the responsibility of Customer to verify that such rights are indeed infringed prior to taking any action or making any assertion in that regard.
8.6 The Services do not include any communication to infringers or to Platforms in the form of issuing any instructions or demands, or making any claims of infringement, including any cease and desist or take down notices (‘Communications’) unless expressly stated in the Subscription Summary. Where the sending of such Communications is included in the Services, Customer:
8.6.1 acknowledges that all such communications are made by TCAT wholly and solely on behalf of Customer;
8.6.2 acknowledges that a confirmation by Customer in writing, or via the Dashboard that the identified use is infringing constitutes a warranty that the identified use is an infringement of Customer’s rights and not otherwise permissible under law, and shall constitute an instruction to send the agreed Communication;
8.6.3 warrants that Customer is fully entitled to send the agreed Communication and that the Communication shall not infringe any rights of any person or be contrary to any applicable law;
8.6.4 shall indemnify, defend and hold harmless TCAT from any action, claim or proceeding against TCAT that arises in connection with the Communication or otherwise in connection with any breach of this clause, and shall be responsible for all associated expenses, costs (including legal costs) and damages, including any monies paid in settlement of any such claims by TCAT (acting reasonably in TCAT’s sole discretion).
8.7 TCAT shall be entitled to suspend the Services immediately where TCAT reasonably believes that there has been any breach of the warranty at Clause 8.6.3.
8.8 Except as expressly set out in the Agreement, TCAT makes no representations, warranties or guarantees of any kind in respect of the Tools, Dashboard or the Services or the Results Data and all conditions, warranties and representations express or implied are hereby excluded to the full extent permitted by law.
8.9 The person confirming the Subscription Summary via the Website warrants that they are entitled to enter into the relevant Agreement on behalf of the Customer identified therein and if they are not so authorised, without prejudice to any other rights and remedies available to TCAT, they agree that they are personally responsible for all Fees incurred via the relevant Subscription and for any breach of the Agreement.
9. Liability
9.1 Nothing in the Agreement shall limit the liability of either party for death or personal injury caused by its negligence or liability that by mandatory provision of law cannot be excluded.
9.2 TCAT shall not be liable (whether such liability arises or is asserted on the basis of contract, tort (including negligence) or otherwise) for any loss or damage or costs or expenses sustained or incurred by Customer (including without limitation any loss of or damage to Customer Data) resulting from any of the matters listed in this Clause 9.2, nor shall TCAT be obliged to provide support or maintenance to the extent that any error or malfunction is caused by any of such matters:
9.2.1 the supply or upload of inaccurate or incomplete data by any person including;
9.2.2 the late supply or upload of data by any person;
9.2.3 the change, modification, damage or integration of the Dashboard, Tools or Services in whole or in part with any other software, by any person other than TCAT or third parties directed by TCAT in the provision of the Services;
9.2.4 the negligence or wilful misconduct of Customer or any Authorised User;
9.2.5 the malfunction of any hardware or software owned, controlled or operated by Customer;
9.2.6 any third-party software not licensed to Customer by TCAT that is not part of the TCAT software;
9.2.7 Customer’s failure to implement commercially reasonable recommendations, preventative measures and/or solutions recommended by TCAT that result in no additional cost to Customer;
9.2.8 use of the Services otherwise than for the purposes for which they are designed;
9.2.9 use of the Services otherwise not in accordance with the terms and conditions of the Agreement; or
9.2.10 viruses or other harmful components originating or contracted from the Results Data, the Dashboard or the TCAT Services.
9.3 Except as set out in the Agreement, neither party shall liable to the other in any circumstances for any (i) indirect or consequential loss or damage, or (ii) loss of profit, opportunity, revenue, goodwill, data or potential savings (whether direct or indirect) in relation to the performance of the Agreement.
9.4 Subject to Clause 9.1, and excluding any liability arising under Clause 8.6, each party’s total liability for any loss or damage relating to or arising from its performance under the Agreement or breach of the Agreement (whether based on contract, tort, negligence or otherwise) shall be limited in aggregate to the level of the fees payable hereunder.
10. Term and Termination of Agreement
10.1 The Agreement shall commence on the Commencement Date and, subject to Clauses 10.2 and 10.3 below, shall continue for the Initial Period, and thereafter continually for further subscription periods, for the renewal periods set out in the Subscription Summary (each a ‘Period’) until either party gives notice to the other to terminate the Agreement at the end of the then current Period by giving written notice at least fourteen (14) days in advance.
10.2 Either party may terminate the Agreement forthwith by notice in writing in the event of a material breach of the Agreement by the other party which is incapable of remedy or, where capable of remedy, has not been remedied by the party in breach within twenty (20) Business Days of having been notified by the other party in writing of such breach.
10.3 Either party may terminate the Agreement forthwith by giving the other party written notice if that other party makes a voluntary arrangement with its creditors or becomes subject to an administration order; has a receiver appointed over any of its property or assets, or an encumbrancer takes possession; ceases or threatens to cease to carry on business or goes into liquidation.
10.4 The Agreement shall terminate automatically in circumstances where the Customer has not provided valid payment information, or such information is out of date or if the payment instructions fail for any reason.
10.5 Upon termination of the Agreement:
10.5.1 Subject to Clause 6.2.3 above, TCAT shall promptly delete all copies of Customer Sound Recordings, Customer Data and Results Data, except where retention is required for compliance with any legal requirement, or for the protection of TCAT’s legal rights and TCAT shall have no responsibility for any consequences of lost or deleted data; and
10.5.2 Customer shall promptly cease all use of the Dashboard and the Services.
10.6 Any provision of the Agreement which, either by its terms or to give effect to its meaning, must survive shall survive the cancellation, expiration or termination of the Agreement, including the following clauses of the Terms: Clause 4 (Fees, insofar as it relates to payment of fees incurred during the term of the Agreement), Clause 6 (Intellectual Property Rights), Clause 7 (Confidentiality), Clause 8 (Warranties), Clause 9 (Limitation of Liability) and Clause 11 (Miscellaneous).
11. Miscellaneous
11.1 The Agreement supersedes all prior agreements and arrangements of whatever nature and sets out the entire agreement and understanding between the parties relating to its subject matter.
11.2 In entering into the Agreement, the parties acknowledge that they have not relied on any representation unless expressly included in the Agreement. Nothing in the Agreement shall limit liability for fraudulent misrepresentation.
11.3 If any provision of the Agreement is held by any competent authority to be invalid or unenforceable in whole or in part the validity of all other provisions (and, if applicable, the remainder of the provision in question) shall not be affected.
11.4 Any delay or failure to perform an obligation under the Agreement by a party (the ‘Affected Party’) shall not constitute a breach of the Agreement to the extent that it is caused by an event of Force Majeure. Upon the occurrence of an event of Force Majeure, the Affected Party shall promptly notify the other party in writing of the estimated extent and duration of its inability to perform its obligations. Upon the cessation of the event of Force Majeure, the Affected Party shall promptly notify the other party in writing of such cessation. The Affected Party shall use its reasonable endeavours to mitigate the effect of each event of Force Majeure. Either party shall be entitled to terminate the Agreement by written notice to the other party if an event of Force Majeure persists for a continuous period exceeding six (6) months. 11.5 No term of the Agreement is enforceable under the Contracts (Rights of Third Parties) Act 1999 by a person who is not a party to the Agreement.
11.6 During the term of the Agreement and for 1 year after termination, neither party shall solicit any of the other party’s employees involved in the Services to consider alternate employment. For the avoidance of doubt, the preceding sentence does not forbid a solicitation to the general public.
11.7 The parties to the Agreement may by written agreement rescind or vary any term of the Agreement without the consent of any third party.
11.8 This Agreement and all disputes, claims, actions, suits or other proceedings arising hereunder shall be governed by, and construed in accordance with, the substantive law of England and Wales. Each party irrevocably submits to the sole and exclusive jurisdiction of the courts of England. Each party irrevocably consents to the exercise of personal jurisdiction over each of the parties by such courts and waives any right to plead, claim or allege that England is an inconvenient forum.
TCAT Standard Data Processing Agreement
1. Definitions
1.1 For the purposes of this Data Processing Agreement (“DPA”) “controller”, “data subject”, “personal data”, “processing”, “processor” and “supervisory authority” (and cognate terms) have the meanings given to them in Article 4 of the UK GDPR, “ the Customer Personal Data” means Customer Data that contains personal data and which is processed by TCAT on behalf of Customer for the purposes of the Services, “Data Protection Legislation” means the Privacy and Electronic Communications Directive 2002/58/EC, the General Data Protection Regulation (EU) 2016/679 (“EU GDPR”), the “UK GDPR” (as defined by section 3(10) of the Data Protection Act 2018), all applicable legislation implementing any of the above together with any other applicable local data protection and electronic privacy and communications laws (including the Data Protection Act 2018), and all binding regulations and/or rules issued by any applicable regulator or body (each as amended or superseded from time to time), and “ICO” means the Information Commissioner's Office.
1.2 TCAT and Customer hereby acknowledge that, to the extent that TCAT processes any Customer Personal Data, Customer shall be the Controller and TCAT shall be the processor in respect of Customer Personal Data. Furthermore, TCAT shall:
1.2.1 only process such Customer Personal Data as is necessary to provide the Services and fulfil its obligations under the Agreement;
1.2.2 comply with the Data Protection Legislation and make available to Customer information necessary to demonstrate compliance with Data Protection Legislation and this DPA (including informing Customer immediately if in TCAT’s opinion processing Customer Personal Data in accordance with the Agreement infringes Data Protection Legislation) and allow for and contribute to audits (including inspections) reasonably requested by Customer (such audits to be limited to once per year);
1.2.3 not appoint a sub-processor without Customer’s authorisation (and Customer authorises TCAT appointing sub-processors in accordance with paragraph 1.5 below) and in the event that Customer does provide such authorisation, TCAT will ensure that such sub-processor is bound by terms similar to those of this paragraph 1.2 as it applies to TCAT hereunder and TCAT shall be responsible for any breach by such sub-processor of any of the obligations under this paragraph 1.2;
1.2.4 not make a transfer (to which Chapter V of the UK GDPR applies) of personal data from inside the UK to outside the UK save where there are adequate measures in place to ensure that Customer Personal Data is protected “(which may include an adequacy decision in favour of the country of import by the UK government)”;
1.2.5 upon termination of the Agreement for any reason, promptly delete or return to Customer (at Customer’s discretion) all Customer Personal Data save to the extent that TCAT is legally required to retain any Customer Personal Data;
1.2.6 promptly comply with any reasonable request from Customer requiring TCAT to amend, transfer or delete Customer Personal Data;
1.2.7 in the event that TCAT receives any complaint, notice or communication from either the ICO, any other relevant supervisory authority, or a data subject which relates directly to the processing of Customer Personal Data or to Customer’s compliance with Data Protection Legislation, TCAT shall notify Customer without undue delay and it shall provide Customer and the ICO (if applicable) with reasonable proportionate co-operation and assistance in relation to any such complaint, notice or communication;
1.2.8 notify Customer without undue delay upon becoming aware of any unauthorised or unlawful processing, loss of, damage to or destruction of any Customer Personal Data;
1.2.9 maintain records of processing carried out in respect of Customer Personal Data as required by Data Protection Legislation;
1.2.10 ensure that all individuals, parties, employees or other persons / entities authorised by TCAT to process Customer Personal Data are bound by industry standard or statutory confidentiality obligations which include keeping Customer Personal Data confidential;
1.2.11 provide proportionate assistance to Customer to ensure the security of processing; and
1.2.12 take appropriate technical and organisational measures to ensure the security of processing
1.3 Customer acknowledges and agrees that it is responsible for:
1.3.1 ensuring that all necessary consents and/or permissions are obtained, or that suitable conditions are satisfied (as set out in Data Protection Legislation) to enable TCAT to process Customer Personal Data under the Agreement; and
1.3.2 providing data subjects with any necessary notifications and any other information required under Data Protection Legislation in respect of Customer’s use of Customer Personal Data under the Agreement.
1.4 Customer warrants and undertakes that:
1.4.1 it shall comply with all its obligations under Data Protection Legislation; and
1.4.2 the consents, permissions and/or conditions and notifications and/or information referred to in paragraphs 1.3.1 and 1.3.2 above have been or shall in any event be obtained and/or satisfied and/or provided (as applicable) in advance of the date on which any Customer Personal Data is provided or made available or accessible to TCAT pursuant to the Agreement.
1.5 Customer provides general authorisation for TCAT to engage such sub-processors as TCAT deems appropriate on the effective date of any applicable Agreement . Customer agrees that TCAT may add or replace sub-processors from time to time provided that TCAT shall notify Customer in writing (which may include email) in advance of any such change and unless Customer sends written notification to TCAT within seven (7) days of TCAT’s notification, setting out its objection to any new sub-processor, Customer will be deemed to have consented to the appointment of such change.
1.6 In the event of any conflict between the provisions of this DPA and the provisions of the main body of the Agreement, the provisions of this DPA shall prevail.