AND Agency Inc. Terms of Service

Effective date: May 2, 2020

These terms of service (“Terms of Service”) set forth the terms and conditions under which AND Agency Inc. (“AND Agency”) provides its customer feedback management platform and the products and services offered by AND Agency on or through such platform (collectively, the “Services”) to you and describe how the Services may be accessed and used. These Terms of Service do not apply to Services which are made available or provided by AND Agency through our Enterprise channel.

The Services are subject to additional terms (“Additional Terms”), which are incorporated herein by reference. These Terms of Service and any applicable Additional Terms are collectively referred to as these “Terms”. These Terms may be updated from time to time as described herein.   

ACCEPTANCE. PLEASE READ THESE TERMS CAREFULLY. BY USING THE SERVICES, BY CLICKING A BUTTON INDICATING YOUR ACCEPTANCE OF THESE TERMS, OR BY EXECUTING A DOCUMENT THAT REFERENCES THEM, YOU ACCEPT AND AGREE TO BE BOUND BY AND COMPLY WITH THESE TERMS. IF YOU DO NOT AGREE TO THESE TERMS, YOU MUST NOT USE THE SERVICES.

If you are an individual, you may only use the Services if you are of the age of majority in the jurisdiction in which you reside and have the power and capacity to form a contract with AND Agency. If you are not of the age of majority in your jurisdiction or do not have the power and capacity to form a contract, you may not use the Services. If you will be using the Services on behalf of an organization, you agree to these Terms on behalf of that organization and represent and warrant that (a) the organization is validly formed and existing under the laws of its jurisdiction of formation, (b) the organization has full power and authority to enter into these Terms, and (c) you have the legal authority to bind the organization to these Terms. In such case, “you” and “your” will refer to that organization.

  1. Fees and payment terms
    1. Fees for Services

      You agree to pay to AND Agency any fees for the Services you purchase or use in accordance with the pricing and payment terms presented to you for those Services. Where applicable, you will be billed using the billing method you select through your account management page. You are responsible for keeping your billing information up to date. If you elect to pay the fees by credit card, you represent and warrant that the credit card information you provide is correct and you will promptly notify AND Agency of any changes to such information. Fees paid by you are non-refundable, except as provided in these Terms or as required by law.

    2. Subscriptions

      Unless otherwise indicated, Services are billed on a subscription basis (referred to “Subscriptions”). You will be billed in advance on a recurring, periodic basis, typically monthly or annually, depending on the subscription plan you select when purchasing a Subscription (each such period, a “billing cycle”). Your Subscription will automatically renew at the end of each billing cycle unless you cancel auto-renewal through your Account Settings → General page. You may cancel auto-renewal on your Subscription at any time, in which case your Subscription will continue until the end of that billing cycle before terminating.

    3. Taxes

      Unless otherwise indicated, prices listed do not include any taxes, levies, duties or similar governmental assessments of any nature such as value-added, sales, consumption, use or withholding taxes, assessable by any jurisdiction (collectively, “Taxes”). You are responsible for paying Taxes associated with your purchase, unless you provide us with a tax identification number that entitles you to an exemption, a valid tax exemption certificate acceptable to the appropriate taxing authority and/or other documentary proof issued by an appropriate taxing authority that tax should not be charged. If you provide us with a tax exemption certificate, you represent and warrant that it accurately reflects your tax status and that you will keep such document current and accurate. If you are required by law to withhold any Taxes from your payments to AND Agency, you must provide AND Agency with an official tax receipt or other appropriate documentation to support such payments.

    4. Fee Changes

      AND Agency may change the fees charged to you for the Services at any time, provided that, for Services billed on a subscription basis, the change will become effective only at the end of the then-current billing cycle of your Subscription. AND Agency will provide you with advance notice of any change in fees.

  2. Account Management
    1. Keep Your Password Secure

      If you have been issued an account by AND Agency in connection with your use of the Services, you are responsible for safeguarding your password and any other credentials used to access that account. You, and not AND Agency, are responsible for any activity occurring in your account (other than activity that AND Agency is directly responsible for which is not performed in accordance with your instructions), whether or not you authorized that activity. If you become aware of any unauthorized access to your account, you agree to notify AND Agency immediately. Accounts may not be shared and may only be used by one individual per account.

    2. Keep Your Contact Information Up to Date

      AND Agency occasionally sends notices to the email address registered with your account. You must keep your email address and, where applicable, your contact details and payment details associated with your account current and accurate.

    3. Backup

      You are responsible for maintaining, protecting, and making backups of your Content (as hereinafter defined). To the extent permitted by applicable law, AND Agency will not be liable for any failure to store, or for loss or corruption of, your Content.

    4. Account Inactivity

      AND Agency may terminate your account and delete any Content contained in it if there is no account activity (such as a log in event or payment) for over 12 months. However, we will attempt to notify you by email before terminating your account to provide you with an opportunity to log in to your account so that it remains active.

    5. Downgrades

      Downgrading your account plan may cause the loss of content, features, functionality, or capacity of your account.

  3. Privacy, confidentiality and security
    1. Privacy

      In the course of using the Services, you may submit content to AND Agency (including your personal data and the personal data of others) or third parties may submit content to you through the Services (all of the foregoing, collectively, your “Content”). AND Agency’s privacy policy, located at https://andishere.com/privacypolicy.pdf, together with any Services-specific privacy notices or statements (collectively, “Privacy Policies”), describe how we collect, use, disclose and otherwise treat your Content. You agree that AND Agency may collect, use, disclose, share, store and retain your Content in accordance with our Privacy Policies and applicable data protection laws. If you are a customer who is operating as “data controller” as defined in the European General Data Protection Regulation 2016/679 (“GDPR”) we have added some additional terms below to address your obligations under this law. You also agree that you are responsible for notifying these third parties who submit content to you through our Services about the AND Agency Inc. privacy policies.

    2. Confidentiality

      AND Agency will treat your Content as confidential information and only use and disclose it in accordance with these Terms (including our Privacy Policies) or with your prior written consent. However, your Content is not regarded as confidential information if such Content: (a) is or becomes public (other than through breach of these Terms by AND Agency); (b) was lawfully known to AND Agency before receiving it from you; (c) is received by AND Agency from a third party without knowledge of breach of any obligation owed to you; or (d) was independently developed by AND Agency without reference to your Content. AND Agency may disclose your Content when required by law or legal process, but only after AND Agency, if permitted by law, uses commercially reasonable efforts to notify you to give you the opportunity to challenge the requirement to disclose.

    3. Security

      AND Agency will store and process your Content in a manner consistent with industry security standards. AND Agency has implemented appropriate technical, organizational, and administrative systems, policies and procedures designed to help ensure the security, integrity and confidentiality of your Content and to mitigate the risk of unauthorized access to or use of your Content. If AND Agency becomes aware of any unauthorized or unlawful access to, or acquisition, alteration, use, disclosure, or destruction of, personal data related to your account (a “Security Incident”), AND Agency will take reasonable steps to notify you without undue delay and in any event, in accordance with applicable law. Further, AND Agency will reasonably cooperate with you with respect to any investigations relating to a Security Incident with preparing any required notices, and provide any other information reasonably requested by you in relation to any Security Incident, where such information is not already available to you in your account or online through updates provided by AND Agency.

  4. Your Content
    1. You Retain Ownership of Your Content

      You retain ownership of all of your intellectual property rights in and to your Content. AND Agency does not claim ownership over any of your Content. These Terms do not grant us any licences or rights to your Content except for the limited rights needed for us to provide the Services, and as otherwise described in these Terms.

    2. Limited Licence to Your Content

      You grant AND Agency a non-exclusive, worldwide, royalty free, fully paid up, sub-licensable, transferable license to compile, collect, use, reproduce, distribute, modify, adapt, create derivative works, make publicly available, and otherwise exploit your Content, but only for the limited purposes of providing the Services to you and as otherwise permitted by our Privacy Policies and in Section 4.3. This licence for such limited purposes continues even after you stop using our Services, with respect to aggregate and de-identified data derived from your Content and any residual backup copies of your Content made in the ordinary course of AND Agency’s business. This licence also extends to any trusted third parties we work with to the extent necessary to provide the Services to you. If you provide AND Agency with feedback about the Services, we may use your feedback without any compensation or obligation to you.

    3. Aggregate Anonymous Data

      You acknowledge and agree that AND Agency has the right to anonymize (de-identify) and aggregate data derived from your Content, which anonymized and aggregated data AND Agency may use for its analytical and other business purposes, both during and after the termination or expiration of these Terms.

  5. AND Agency Intellectual Property
    1. AND Agency Intellectual Property

      AND Agency, its affiliates and/or licensors own all intellectual property rights in and related to the Services. All rights not expressly granted to you are reserved to AND Agency and its licensors. Neither these Terms nor your use of the Services grants you ownership in the Services or the content you access through the Services (other than your Content). These Terms do not grant you any right to use AND Agency’s trademarks or other brand elements. Trademarks displayed in conjunction with the Services are the property of their respective owners.

    2. Feedback

      If you submit any feedback, comments or suggestions to us regarding our Services, we may use and share them for any purpose without any compensation or obligation to you.

  6. User Content
    1. User Content

      The Services display content provided by others that is not owned by AND Agency. Such content is the sole responsibility of the person or entity that makes it available. You are responsible for your own Content and you must ensure that you have all the rights and permissions needed to use that Content in connection with the Services. AND Agency is not responsible for any actions you take with respect to your Content, including sharing it publicly. Please do not use content from the Services unless you have first obtained the permission of its owner or are otherwise authorized by law to do so.

    2. Content Review

      In order to ensure compliance with legal obligations, AND Agency may be required to review certain content submitted to the Services to determine whether it is unlawful or violates these Terms (such as when unlawful content is reported to us). We may also modify, prevent access to, delete, or refuse to display content that we believe violates the law or these Terms. However, AND Agency otherwise has no obligation to monitor or review any content submitted to the Services.

  7. acceptable Use AND YOUR RESPONSIBILITIES
    1. Compliance with Laws

      You represent, warrant and agree that you will comply with all laws and regulations applicable to your use of the Services.

    2. Your Responsibilities

      You may access and use the Services only for lawful purposes and in accordance with these Terms. You are responsible for your conduct, Content and communications with others while using the Services. You must comply with the following requirements when using the Services:

      1. You may not resell or lease the Services unless authorized by AND Agency in writing.
      2. You may not purchase, access or use the Services for the purpose of building a competitive product or service.
      3. Unless permitted by applicable law, you may not disassemble, decompile, reverse engineer or make derivative works of the Services, or attempt to do so.
      4. You may not interfere or attempt to interfere with the normal operation or security of the Services, or attempt to access them using a method other than the interfaces and instructions that we provide.
      5. You may not engage in abusive or excessive usage of the Services, being usage significantly in excess of average usage patterns that adversely affects the speed, responsiveness, stability, availability, or functionality of the Services for other users. AND Agency will endeavor to notify you of any abusive or excessive usage to provide you with an opportunity to reduce such usage to a level acceptable to AND Agency.
      6. You may not circumvent or attempt to circumvent any limitations that AND Agency imposes on your account (such as by opening up a new account to conduct a survey that we have closed for a Terms violation).
      7. You may not probe, scan, or test the vulnerability of any AND Agency system or network, unless authorized by AND Agency in writing.
      8. You may not use any manual or automated system or software to extract or scrape data from the websites or other interfaces through which we make the Services available, unless authorized by AND Agency in writing.
      9. You may not register accounts by “bots” or other automated methods.
      10. You may not use the Services to (i) infringe the intellectual property rights of others, (ii) transmit any viruses, malware, or other types of malicious software, or links to such software, or (iii) commit an unlawful activity.
      11. Your Content and use of the Services may not violate our Acceptable Use Policy or Anti-Spam Policy or applicable laws and regulations.
      12. If your use of the Services requires you to comply with industry-specific regulations applicable to such use, you will be solely responsible for such compliance, unless AND Agency has otherwise agreed in writing with you. You may not use the Services in a way that would subject AND Agency to those industry-specific regulations without obtaining AND Agency’s prior written agreement.
      13. You acknowledge and agree that you are prohibited from collecting or entering cardholder data (including a cardholder’s account number, cardholder name, expiration date, and/or service code) into any form or data entry fields in the Services. Similarly, you must never collect or enter any “Sensitive Authentication Data”, as defined by the PCI Standards (including CVC or CVV2) into any fields in the Services. You assume all responsibility for any Cardholder Data entered into the Services in violation of these terms.
  8. SUSPENSION AND Termination OF SERVICES
    1. Termination by You

      You may terminate your Subscription and delete your account at any time through your Account Settings → General page. Such termination and deletion will result in the deactivation or disablement of your account and access to it, and the deletion of content you collected through use of the Services. Terminations are confirmed immediately. If you terminate a Subscription in the middle of a billing cycle, you will not receive a refund unless you are terminating these Terms for any of the following reasons: (a) AND Agency has materially breached these Terms and failed to cure that breach within 30 days after you have so notified us in writing; (b) a refund is required by law; or (c) we determine, in our sole discretion, a refund is appropriate. For clarity, we will not grant a refund where you have used the Services, collected responses, and/or downloaded your responses unless the termination is due to our material, uncured breach or a refund is required by law.

    2. Suspension or Termination by AND Agency

      AND Agency may terminate your Subscription at the end of a billing cycle by providing at least 30 days’ prior written notice to you. AND Agency may terminate your Subscription for any reason at any time by providing at least 90 days’ written notice to you and will provide you with a pro rata refund for any period of time you did not use in that billing cycle. AND Agency may suspend performance or terminate your Subscription for any of the following reasons: (a) you have materially breached these Terms and failed to cure that breach within 30 days after AND Agency has so notified you in writing; (b) you cease your business operations or become subject to insolvency or bankruptcy proceedings and the proceedings are not dismissed within 90 days; or (c) you fail to pay fees for 30 days past the due date.

      In addition, AND Agency may limit or suspend your use of the Services: (i) if you fail to comply with these Terms, (ii) if you use the Services in a way that causes legal liability to us or disrupts others’ use of the Services; or (iii) if we are investigating suspected misconduct by you. If we limit or suspend your use of the Services, depending upon the reason, we will endeavor to give you advance notice and an opportunity to obtain a copy of your Content from the Services, however, there may be time sensitive situations where we determine that we need to take immediate action without notice. AND Agency will use commercially reasonable efforts to limit the duration and scope of any limitation or suspension under this Section as is needed to resolve the issue that prompted such action. AND Agency has no obligation to retain your Content upon termination of the applicable Services.

      If AND Agency stops providing the Services to you because you repeatedly or egregiously breach these Terms, AND Agency may take measures to prevent the further use of the Services by you, including blocking your IP address.

    3. Survival

      The following sections will survive the termination or expiration of these Terms: 1.0, 3.0, 4.2, 8.0, 9.0, 10.0, 12.0 and 13.0.

  9. Disclaimers and Limitations of Liability
    1. Disclaimers

      While AND Agency uses commercially reasonable efforts to keep our online Services up, they may be unavailable from time to time for various reasons. EXCEPT AS EXPRESSLY PROVIDED IN THESE TERMS AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND AND AGENCY INC. DOES NOT MAKE ANY WARRANTIES OR CONDITIONS OF ANY KIND, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING THOSE OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, OR ANY REPRESENTATIONS OR WARRANTIES REGARDING AVAILABILITY, RELIABILITY, SUITABILITY OR ACCURACY OF THE SERVICES OR RESULTS TO BE DERIVED THEREFROM OR THAT THE OPERATION OF THE SERVICES WILL BE SECURE, UNINTERRUPTED OR ERROR-FREE. THE FOREGOING DOES NOT AFFECT ANY WARRANTIES OR CONDITIONS THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.

    2. Exclusion of Certain Liability

      TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND AGENCY, ITS AFFILIATES AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS AND LICENSORS WILL NOT BE LIABLE FOR (A) ANY INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, PUNITIVE, OR EXEMPLARY DAMAGES WHATSOEVER, OR (B) LOSS OF USE, DATA, BUSINESS, REVENUES, PROFITS OR GOODWILL (IN EACH CASE WHETHER DIRECT OR INDIRECT), ARISING OUT OF OR IN CONNECTION WITH THE SERVICES AND THESE TERMS, AND WHETHER BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER LEGAL THEORY, EVEN IF AND AGENCY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

    3. Limitation of Liability

      TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE AGGREGATE LIABILITY OF EACH OF AND AGENCY INC., ITS AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS, AND LICENSORS ARISING OUT OF OR IN CONNECTION WITH THE SERVICES AND THESE TERMS WILL NOT EXCEED THE LESSER OF: (A) THE AMOUNTS PAID BY YOU TO AND AGENCY FOR USE OF THE SERVICES AT ISSUE DURING THE 12 MONTHS PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY; AND (B) US$200.00.

    4. Exceptions

      The laws of certain jurisdictions provide legal rights to consumers that may not be overridden by contract or waived by those consumers. If you are such a consumer, to the extent such laws apply, nothing in these Terms limits any of those consumer rights. Further, nothing in these Terms shall exclude or limit liability for fraud, fraudulent misrepresentation or willful misconduct.

  10. Indemnification
    1. Indemnification

      You agree to indemnify and hold harmless AND Agency and its affiliates and their respective directors, officers, agents, and employees (collectively, the “Indemnified Entities”) from all liabilities, damages, and costs, including settlement costs and reasonable legal fees (collectively, “Indemnification Amounts”) arising out of (a) any third party claim regarding or in connection with your or your end users’ use of the Services or breach of these Terms, to the extent that such liabilities, damages and costs were caused by you or your end users; and (b) any Indemnification Amounts arising out of a breach of your obligation in Section 1.3 to ensure your tax exemption certificate, if any, accurately reflects your current tax status.

  11. modifications to terms and to services
    1. Changes to Terms

      AND Agency reserves the right, in our sole discretion, to revise and update these Terms from time to time, including to reflect changes in applicable law or updates to the Services, and to account for new Services or functionality. The most current version of these Terms will always be posted on the AND Agency website. If an amendment is material, as determined in our sole discretion, AND Agency will notify you by email. Notice of amendments may also be posted upon your login to your account. Changes will be effective no sooner than the day they are publicly posted. In order for certain changes to become effective, applicable law may require AND Agency to obtain your consent to such changes, or to provide you with sufficient advance notice of them. If you do not agree to any changes made to these Terms, you should stop using the Services as by continuing to use the Services you indicate your agreement to be bound by the updated terms.

    2. Modifications to Services

      AND Agency may add, alter or remove features or functionality from the Services it provides to you at any time in our sole discretion without prior notice. AND Agency may also limit, suspend or discontinue Services provided to you at its discretion. If AND Agency discontinues any of the Services, we will give you reasonable advance notice to provide you with an opportunity to obtain a copy of your Content from those Services. AND Agency may remove content from the Services it provides you at any time in our sole discretion, although we will endeavor to notify you before doing so if it materially impacts you and if practicable under the circumstances.

  12. MISCELLANEOUS
    1. Export Restrictions

      You may only use the Services if you are not barred under any applicable laws from doing so. If you are located in a country embargoed by Canada, the United States or other applicable law from receiving the Services, or are on the U.S. Department of Commerce’s Denied Persons List or Entity List, or the U.S. Treasury Department’s list of Specially Designated Nationals, you are not permitted to purchase any paid Services from AND Agency. You agree to ensure that: (a) your end users do not use the Services in violation of any export restriction or embargo by Canada or the United States; and (b) you do not provide access to the Services to persons or entities on any of the above lists.

    2. Governing Law and Jurisdiction

      These Terms are governed by and will be construed in accordance with the laws of the Province of Ontario, Canada, and the federal laws of Canada applicable therein, without giving effect to any choice or conflict of law provision, principle or rule (whether of the laws of the Province of Ontario or any other jurisdiction) and notwithstanding your domicile, residence or physical location. Except if prohibited by applicable law, each party submits to the exclusive jurisdiction of the courts of the Province of Ontario located in Toronto, Ontario, Canada, and/or the Federal Court of Canada, with respect to the Services and/or the subject matter of these Terms. The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act (where enacted) will not apply to these Terms.

    3. Entire Agreement

      These Terms (including the Additional Terms) constitute the entire agreement between you and AND Agency with respect to the subject matter hereof, and supersede any other prior or contemporaneous agreements, terms and conditions, representations and warranties, written or oral concerning its subject matter. Any terms and conditions appearing on a purchase order or similar document issued by you do not apply to the Services, do not override or form a part of these Terms, and are void and of no effect.

    4. Severability

      If any provision of these Terms is determined to be invalid, illegal or unenforceable by a court of competent jurisdiction in any jurisdiction, that provision will be severed and the remainder of the provisions will remain in full effect, and such invalidity, illegality or unenforceability shall not invalidate or render unenforceable such provision in any other jurisdiction.

    5. No Waiver

      No failure to exercise, or delay in exercising, any right or remedy arising from these Terms operates, or may be construed, as a waiver thereof. No single or partial exercise of any right or remedy hereunder precludes any other or further exercise thereof or the exercise of any other right or remedy.

    6. Assignment

      You may not assign these Terms without AND Agency’s prior written consent, which may be withheld in AND Agency’s sole discretion. AND Agency may assign these Terms at any time without notice to you.

    7. Independent Contractors

      The relationship between you and AND Agency is that of independent contractors, and no partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties is created by these Terms.

    8. Third Party Beneficiaries

      Except for the Indemnified Entities under Section 8.1, there are no third party beneficiaries to these Terms.

    9. Links to Third Party Websites

      AND Agency may publish links in the Services to internet websites maintained by third parties. These Terms do not apply to any such third party websites. AND Agency does not represent or warrant that it has reviewed such third party websites and is not responsible for them or any content appearing on them or for any loss or damage that may arise from your use of them. You are subject to any terms and conditions and privacy policies of any such third party websites.

    10. Publicity

      AND Agency may identify you (by name and logo) as a customer of AND Agency’s Services on our website and other promotional materials. Any goodwill arising from the use of your name and logo will inure to your benefit.

    11. Interpretation

      References to “AND Agency”, “we”, “us”, and “our” are references to AND Agency Inc., with offices located in Toronto, Ontario, Canada. The use of the terms “includes”, “including”, “such as”, and similar terms, will be deemed not to limit what else might be included.

    12. Precedence

      To the extent any conflict exists, the Additional Terms prevail over these Terms of Service with respect to the Services to which the Additional Terms apply.

    13. Reporting and Contact

      AND Agency responds to notices of alleged copyright infringement in accordance with applicable law. If you believe that your work has been exploited in a way that constitutes copyright infringement, you may notify us at info@andishere.com. Claims of copyright infringement should follow the process outlined under applicable law.

      Should you become aware of any misuse of the Services, you may report it to us at info@andishere.com.

  13. Terms for Certain Customers and Countries
    1. Language.

      These Terms are prepared and written in English. To the extent that any translated version conflicts with the English version, the English version controls, except where prohibited by applicable law.

    2. Country-Specific Terms.

      If you are located in one of the following locations, the terms thereunder apply (with the exception of section EU2, which applies to you irrespective of geographic location if you are a “data controller” as referred to in the GDPR).

      Europe

      EU1. Right of Withdrawal.

      In certain European countries, you have a legal right to cancel Subscriptions within a certain period of time.

      EU2. GDPR Terms for Customers

      EU 2.1 Effective Date and Definitions.

      These additional terms will apply to you from May 25, 2018, where you are a customer operating as a “data controller” of “personal data” of “data subjects” located in the EU (as those terms are defined in the GDPR) in your use of the Services.

      The terms “personal data”, “data subject”, “processing” and “processor” shall have the meanings given to those terms respectively in the GDPR.

      EU 2.2 Processing Instruction.

      By requesting the Services and agreeing to these Terms and AND Agency’s Privacy Policies, you are providing us with instructions to process any personal data collected by you through the Service, on your behalf.

      EU 2.3 Customer Obligations.

      You shall ensure and hereby warrant and represent that you are entitled to transfer personal data to AND Agency so that AND Agency may lawfully process and transfer the personal data in accordance with these Terms. You shall ensure that relevant data subjects have been informed of, and have given their consent to, such use, processing, and transfer as required by all applicable data protection laws and have sole responsibility for the accuracy, quality and legality of personal data processed by AND Agency in the provision of the Services.

      EU 2.4 AND Agency Obligations

      Where AND Agency is processing personal data on your behalf, it will:

      (a) only do so on your documented instructions and in accordance with applicable law, including with regard to transfers of personal data to a third country or an international organization, and the parties agree that these terms and the AND Agency Privacy Policies constitute such documented instructions;

      (b) ensure that all AND Agency personnel involved in the processing of personal data have committed themselves to confidentiality;

      (c) where applicable to you and where it is technically feasible, make available information necessary for you to demonstrate compliance with your obligations under Article 28 of the GDPR, where such information is held by AND Agency and is not otherwise available to you through your account and user areas or on AND Agency websites, provided that you provide AND Agency with at least 14 days’ written notice of such an information request;

      (d) promptly notify you of all requests received directly from a data subject in respect of that data subject’s personal data submitted through the Services;

      (e) upon deletion by you, not retain personal data from within your account other than in order to comply with applicable laws and regulations and as may otherwise be kept in routine backup copies made for disaster recovery and business continuity purposes (which are also deleted no later than 9-12 months after data is deleted from an account); and

      (f) to the extent reasonably able, assist you as reasonably required (at your expense) where you wish to conduct a data protection impact assessment involving the Services.

      EU 2.5 AND Agency sub-processors.

      AND Agency uses trusted partners in facilitating certain elements of our Services (“sub-processors”). By agreeing to these Terms, you provide a general authorization to AND Agency to engage onward sub-processors, subject to compliance with the requirements set out here. If you object to a particular sub-processor, who we cannot disassociate from your Services, your sole remedy will be to terminate your subscription relating to the Services that cannot be reasonably provided without the objected-to new sub-processor. Such termination will be without a right of refund for any fees prepaid by you for the period following termination.

      EU 2.6 Liability.

      AND Agency will be liable for the acts and omissions of its sub-processors to the same extent AND Agency would be liable if performing the services of each of those sub-processors directly under these Terms, except as otherwise set forth in these Terms and AND Agency ensures that all sub-processors on the sub-processor list are bound by contractual terms that are in all material respects no less onerous than those contained in these Terms.

      EU 2.7 Security Measures.

      AND Agency has, taking into account the state of the art, cost of implementation and the nature, scope, context and purposes of the Services and the level of risk, implemented appropriate technical and organizational measures to ensure a level of security appropriate to the risk of unauthorized or unlawful processing, accidental loss of and/or damage to your personal data. At reasonable intervals, AND Agency tests and evaluates the effectiveness of these technical and organizational measures for ensuring the security of the processing.

      EU 2.8 Audits.

      You will allow one month for AND Agency to respond to any audit request which you make. No person/party conducting an audit on your behalf, shall be, or shall act on behalf of, a competitor of AND Agency (“Auditor”). You will only be entitled to conduct an audit once per year (during the course of a 12 month subscription) unless otherwise legally compelled or required by a regulator with established authority over you to perform or facilitate the performance of more than 1 audit in that same year (in which circumstances you and AND Agency will, in advance of any such audits, agree upon a reasonable reimbursement rate for AND Agency’s audit expenses). The scope of an audit will be as follows (unless you are compelled by a regulator with authority over the processing activities involving the Services to vary this format for audit):

      (a) AND Agency agrees, subject to any appropriate and reasonable confidentiality restrictions, to provide evidence of any certifications and compliance standards it maintains and will, on request, make available to you an executive summary of AND Agency’s (or AND Agency affiliate’s) most recent penetration tests, which summary shall include remedial actions taken by AND Agency resulting from such penetration tests.

      (b) The scope of the certifications and penetration tests provided will be limited to AND Agency systems, processes, and documentation relevant to the processing and protection of personal data undertaken for the Services obtained by you, and Auditor will conduct audits subject to any appropriate and reasonable confidentiality restrictions requested by AND Agency.

      (c) You will promptly notify and provide AND Agency with full details regarding any perceived non-compliance or security concerns discovered during the course of an audit.

      The parties agree that, except as otherwise required by order or other binding decree of a regulator with authority over you, this section sets out the entire scope of your audit rights as against AND Agency.

      EU 2.9 Liability for Data Processing.

      The parties’ respective aggregate liability whether in contract, tort (including negligence), breach of statutory duty, or otherwise for any and all claims arising out of or in connection with this Section EU12 shall be as set out in these terms, unless otherwise agreed in writing.