Thank you for visiting www.cable.tech (the “Site”) which is operated by Cable Tech, Inc., a Delaware corporation with a place of business at 2261 Market Street #4472, San Francisco, CA 94114 (“us” or “we”).
Cable (as defined below) operates a financial crime effectiveness testing platform which offers the following product for self-service:
This product comprises the "Cable Service".
These Terms of Service and Data Processing Agreement set out the terms and conditions upon which you may use the Cable Service and any application or functionality Cable makes available through the Cable Service.
By using the Cable Service or clicking “Accept” to these Terms of Service, you agree to and accept these Terms of Service and the Order Form.
The Cable Service is provided by Cable Tech, Inc, a Delaware corporation, whose registered office is at 2261 Market Street #4472 San Francisco CA 94114, ("Cable").
2.1 - In these Terms of Service, except where the context requires otherwise, the following words and expressions shall have the following meaning:
"Agreement" means the agreement between the Customer and Cable, comprising the Order Form and the Terms of Service, for the provision of the Cable Service;
"Authorized User" means an employee, agent or contractor of the Customer who is authorized by the Customer to access the Cable Service on behalf of the Customer;
"Business Day" means any day other than a Saturday, Sunday or day which is a federal legal holiday in the United States or any day on which banking institutions in the State of New York are authorized or required by law or other governmental action to close;
"Customer" or "you" means the person identified on the Order Form;
"Customer Data" means the content and data that the Customer or any Authorized Users make available to Cable in connection with the provision of the Cable Service;
"Commencement Date" is the date of purchase of the Cable Risk Assessment by the Customer;
"Confidential Information" means information which is identified as confidential or proprietary by either party, or which a reasonable person would understand to be confidential or proprietary based on the nature of the information or the circumstances under which it was so disclosed;
"Data Protection Legislation" means:
(a) - the California Consumer Privacy Act, Cal. Civ. Code §§ 1798.100 et seq., including any amendments and any implementing regulations thereto that become effective on or after the effective date of the Agreement (the "CCPA");
(b) - Regulation (EU) 2016/679 ("EU GDPR") or, where applicable, the "UK GDPR" as defined in Section 3 of the UK Data Protection Act 2018 (together, the "GDPR"); and
(c) - any other applicable laws relating to the processing, privacy, confidentiality or security of of personal data or personal information;
"DPA" has the meaning given to it in Section 8.4;
"Fees" means the Service Fees;
"Harmful Code" means any thing or device (including any software, code, file or program) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware, or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any program or data, including the reliability of any program or data (whether by re-arranging, altering or erasing the program or data in whole or part or otherwise); or adversely affect the user experience, including worms, malware, Trojan horses, viruses and other similar malicious computer code, things or devices;
"Initial Term" means the period set out in the Order Form;
"Losses" means any and all losses, damages, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys' fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers;
"Order Form" means the order form signed (whether electronically or otherwise) by the parties, and which, amongst other things, identifies the Customer and any Set-up Services, and sets out the Fees;
"Renewal Term" means the period set out in the Order Form or as otherwise agreed by the parties in writing;
"Service Fees" means the fee set out in the Order Form, relating to the provision of the Cable Service;
"Set-up Services" means the activities taken by the Cable team to provision the Cable Service for the Customer;
"Term" means the Initial Term and any Renewal Term(s);
"Terms of Service" means these terms and conditions of service, as amended from time to time;
"Third Party Sites" has the meaning given in Section 6.4; and
"User Account" means an account set up by the Customer with an ID and password that an Authorized User uses to access the Cable Service.
2.2 - In the Agreement, unless the context otherwise requires:
(a) - a reference to a person shall be construed so as to include any individual, firm, body corporate (wherever incorporated), government, state or agency of a state or any joint venture, association, partnership, works council or employee representative body (in each case whether or not having separate legal personality);
(b) - reference to a "party" is to a party to this agreement;
(c) - the headings are inserted for convenience only and do not affect the construction or interpretation of this agreement;
(d) - words in the singular shall include the plural and vice versa;
(e) - references to statutory provisions shall be construed as references to those provisions as respectively amended, consolidated, extended or re-enacted from time to time and shall include the corresponding provisions of any earlier legislation (whether repealed or not) and any orders, regulations, instruments or other subordinate legislation made from time to time under the statute concerned;
(f) - a reference to "includes" or "including" will be construed as "includes without limitation" or "including without limitation" (as the case may be);
(g) - general words shall not be given a restrictive meaning by reason of their being preceded or followed by words indicating a particular class or examples of acts, matters or things; and
(h) - references to "writing" or "written" include any modes of reproducing words in a legible and non-transitory form.
3.1 - The Agreement shall commence on the Commencement Date and, subject to earlier termination in accordance with Section 12, shall continue for the Term.
3.2 - The Initial Term shall extend for a Renewal Term at the end of the Initial Term and at the end of each Renewal Term thereafter, in each case only upon the express mutual written consent of the parties.
4.1 - Where agreed in the Order Form, Cable shall provide the Set-up Services to the Customer using commercially reasonable efforts.
4.2 - In performing the Set-up Services, Cable shall comply with the Customer's reasonable instructions, and the Customer shall provide Cable with Customer Data and access to the Customer's systems or services as Cable may reasonably require in order to provide the Set-up Services; provided that such instructions shall not impose any additional cost or require any material effort by Cable, in each case outside the scope of this Agreement.
5.1 - Cable grants the Customer a non-exclusive, non-transferable (except pursuant to Section 17.4 (Transfer of Any Rights and Obligations) license for the Term to access, use, and permit Authorized Users to access and use the Cable Service, in accordance with and subject to the terms and conditions of the Agreement, for the Customer's internal business purposes.
5.2 - The Customer may not sublicence the rights granted in Section 5.1 other than to allow Authorized Users to access and use the Cable Service.
5.3 - The Customer may grant Authorized Users access to the Cable Service provided that the Customer:
(a) - ensures that all Authorized Users are aware of the terms of the Agreement and act in compliance with them. The Customer is liable for any breach of the Agreement by an Authorized User.
5.4 - Each party must treat any username and password used to access the Cable Service or a User Account as Confidential Information and must not disclose such information to any third party (other than to Authorized Users) and must take appropriate safeguards in accordance with good industry practice to prevent unauthorized access to the Cable Service.
5.5 - The Customer shall instruct each Authorized User to keep secure and confidential any username and password provided to, or created by, the Authorized User for use of the Cable Service, and to not disclose such username and password to any third party, including any other Authorized Users or persons within the Customer's organization, company or business.
5.6 - The Customer is responsible for maintaining the confidentiality of its login details for its User Accounts and for any activities that occur under its User Accounts by Authorized Users. Cable encourages the Customer and its Authorized Users to use "strong" passwords (using a combination of upper and lower case letters, numbers and symbols) with its User Accounts.
5.7 - Each party must prevent any unauthorized access to, or use of, the Cable Service, and must promptly notify the other party in the event of any such unauthorized access or use. If the Customer has any concerns about the login details for any User Account, or thinks they may have been misused, the Customer shall notify Cable at [email protected]. Each party must immediately notify the other party if the Customer becomes aware that the login details of any Authorized User are lost, stolen, or otherwise compromised.
5.8 - The Customer is responsible for making all arrangements necessary for Authorized Users to gain access to the Cable Service, including setting up all User Accounts using the appropriate features and functionalities of the Cable Service.
6.1 - The Customer:
(a) - must comply with all applicable laws and regulations with respect to its use of the Cable Service and its activities under the Agreement;
(b) - must use the Cable Service in accordance with the terms of the Agreement and shall be responsible for any acts and omissions in connection with the use of the Cable Service by its Authorized Users;
(c) - must ensure that the Customer ends an Authorized User's right to access and use the Cable Service, if the Authorized User ceases its employment or other relationship with the Customer;
(d) - must notify Cable Service in writing if there are any changes to any of the Customer's contact details as set out in the Order Form;
(e) - must ensure that its network and systems, including its internet browser and operating systems, comply with any relevant and reasonable specifications provided by Cable in writing (including e-mail) from time to time;
(f) - is solely responsible for procuring and maintaining its network connections and telecommunications links from its systems in order to access and use the Cable Service; and
(g) - must not intentionally do, or permit any Authorized Users or other persons to do, any of the following:
(i) - access, store, distribute, or transmit any Harmful Code through the Cable Service;
(ii) - use the Cable Service to access, store, distribute, or transmit any material that is unlawful, harmful, threatening, defamatory, inflammatory, violent, obscene, infringing or otherwise violative of any third party’s intellectual property rights, harassing, or racially or ethnically offensive;
(iii) - use the Cable Service in a manner that is illegal or causes damage or injury to any person or property;
(iv) - use any automated system, including without limitation "robots", "spiders", or "offline readers", to access the Cable Service in a manner that sends more request messages to the Cable Service than a human can reasonably produce in the same period of time by using a conventional online web browser; and
(v) attempt to interfere with or compromise the integrity or security of the Cable Service, and Cable reserves the right, without liability or prejudice to its other rights under the Agreement, to disable all or any User Accounts or access to all or any part of the Cable Service by any Authorized User, for any breach of any provision of this Section 6.1(g).
6.2 - Cable is not responsible or liable for any delay or failure of performance caused in whole or in part by Customer’s delay in performing, or failure to perform, any of its obligations under this Agreement.
Cable may monitor the Customer's and Authorized Users' use of the Cable Service to ensure the quality of, and improve, the Cable Service, and verify the Customer's compliance with the Agreement.
7.1 - All intellectual property rights in and to the Cable Service belong, and shall belong, to Cable and its licensors (as applicable), and the Customer shall have no rights to use, or licenses in respect of the Cable Service whether expressly, by implication, estoppel, or otherwise, other than as expressly granted under the Agreement.
7.2 - Except as contemplated by this Agreement, the Customer will not, when using the Cable Service:
(a) - attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Cable Service in any form or media or by any means;
(b) - attempt to reverse compile, disassemble, reverse engineer, or otherwise reduce to human-perceivable form all or any part of the Cable Service;
(c) - access all or any part of the Cable Service in order to build a product or service which competes with the Cable Service, or use or attempt to use the Cable Service to directly compete with Cable;
(d) - erase or remove any proprietary or intellectual property notice contained in the Cable Service; or
(e) - rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Cable Service to any person or entity, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud, or other technology or service.
7.3 - Only upon the Customer’s express written consent and subject to any trademark guidelines provided by Customer, Cable may use the Customer's name, logo, and related trademarks in any of Cable's publicity or marketing materials (whether in printed or electronic form) for the purpose of highlighting that the Customer uses the Cable Service and alongside any testimonials and Case Studies (as defined below) that the Customer has agreed to give.
7.4 - Only upon the Customer’s express written consent, the Customer acknowledges that Cable may prepare written overviews of the impact of the Cable Service on the Customer’s business (“Case Studies”). The Customer agrees that Cable may publish one such Case Study within six (6) months from the Commencement Date with the Customer’s prior written consent as part of its marketing materials which may be shared with other Cable customers or published on its website. The Customer may request reasonable amendments to Case Studies.
7.5 - The parties agree that the Case Studies may consist of (but are not limited to) information identifying the Customer, the dates and timeframes for the provision of the Cable Service, the dates and timeframes for the achievement of relevant outcomes using the Cable Service, the description of the outcomes achieved using the Cable Service and metrics relating to those outcomes. No information which is confidential or commercially sensitive to its business shall be included in published Case Studies. At Cable’s expense, the Customer shall provide a reasonable level of assistance to Cable in preparation of Case Studies, if requested to do so by Cable.
8.1 - The Customer grants Cable a license to access, download, store and use the Customer Data for the purpose of:
(a) - providing the Cable Service to the Customer;
(b) - providing any Set-up Services or otherwise performing its obligations under the Agreement;
(c) - generating anonymized, de-identified or aggregated data that can in no way be used to identify Customer or any individual, and using such data (“Anonymized Data”) to develop, test, improve and alter the functionality of the Cable Service; and
(d) - using Customer Data to produce analytical, anonymized or de-identifiable and aggregated statistical reports and research ("Metrics").
8.2 - The Customer grants Cable a perpetual, non-exclusive, royalty-free license to produce, access, download, store and use the Metrics for the duration of the Term, to the extent that Metrics do not contain any Confidential Information or personal data of the Customer and can in no way be used alone or in combination with other information to identify Customer or any individual.
8.3 - The Customer represents and warrants to Cable that:
(a) - it has the necessary right, title, interest and consent, in each case as necessary to allow Cable to use the Customer Data in accordance with the Agreement; and
(b) the Customer Data does not contain any:
(i) - information relating to children under the age of thirteen (13) that would be subject to the Children Online Privacy Protection Act;
(ii) - protected health information subject to the Health Insurance Portability and Accountability Act; or
(iii) - information revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, sexual orientation, sex life, or biometric data;
8.4 - The data processing addendum in Schedule 1 (the "DPA") shall apply to the processing of any "personal information" or "personal data" (each as defined in the Data Protection Legislation) contained in the Customer Data by Cable as a result of hosting the Customer Data or otherwise as a result of the Customer's use of the Cable Service.
8.5 - The Customer shall maintain a backup of the Customer Data and Cable shall not be responsible or liable for the deletion, correction, alteration, destruction, damage, loss, disclosure or failure to store any Customer Data.
9.1 - Each party may be given access to Confidential Information from the other party in order to perform its obligations under the Agreement. A party's Confidential Information shall not be deemed to include information that:
(a) - is or becomes publicly known other than through any act or omission of the receiving party;
(b) - was in the other party's lawful possession before the disclosure;
(c) - is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or
(d) - is independently developed by the receiving party, which independent development can be shown by contemporaneous written evidence.
(e) - intentionally omitted.
9.2 - Each party shall hold the other party's Confidential Information in confidence and, unless required by law, shall not make the other party's Confidential Information available for use for any purpose other than as needed to perform the terms of the Agreement. These restrictions in this Section 9 (Confidential Information) will not prevent either party from complying with any law, regulation, court order or other legal requirement that compels disclosure of any Confidential Information. The receiving party will promptly notify the disclosing party upon learning of any such legal requirement and cooperate with the disclosing party in the exercise of its right to protect the confidentiality of the Confidential Information before any tribunal or governmental agency.
9.3 - Each party shall take all reasonable steps to ensure that the other party's Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of the Agreement.
10.1 - The Customer will pay the Fees as set out in the Order Form, depending on their selection of upfront payment or monthly billing.
10.2 - Cable shall:
(a) - provide a receipt to the Customer in respect of the Service Fees as set out at the time of purchase.
10.3 - The Customer shall pay for the Cable Services prior to receiving access to the Risk Assessment tool.
10.4 - If the Customer elects to be billed monthly, Cable has not received payment in full within thirty (30) days of the date of the missed payment, and without prejudice to any other rights and remedies available to Cable:
(a) Cable shall be under no obligation to perform any of its obligations under the Agreement, and without liability to the Customer, may suspend the Customer's and its Authorized Users' access to the Cable Service, while the relevant sum remains unpaid.
10.5 - All amounts and Fees stated or referred to in the Agreement:
(a) - are payable in US dollars; and
(b) - are exclusive of sales tax unless otherwise expressly stated, which shall be paid at the same time as payment of the Fees.
10.6 - Unless otherwise agreed between the parties in writing, Cable may increase any of the Fees upon giving at least thirty (30) days' notice in writing to the Customer, such increase to take effect from the commencement of the Renewal Term following expiry of such notice. If the Customer is unhappy with the increase, the Customer may give notice to terminate the Agreement at the end of the Initial Term or the then-current Renewal Term (as applicable) by providing written notice to Cable at any time during the thirty-day notice period, such notice to expire no later than the end of the Initial Term or the then-current Renewal Term (as applicable). The Fees will not increase during the notice period.
11.1 - Cable will make the Cable Service available with an uptime rate of 98% for each calendar month, except for:
(a) - planned maintenance outside of normal business hours (EST time) for which twenty-four (24) hours' notice will be given; and
(b) - unscheduled maintenance during normal business hours (EST time) or otherwise, for which Cable will use reasonable endeavours designed to give the Customer advance notice.
11.2 - The Customer shall provide all support reasonably required by Cable to perform its obligations under this Section 11, including providing reasonably detailed descriptions of issues and updates on the performance of the Cable Service.
12.1 - Without prejudice to any other rights and remedies available to Cable, Cable may terminate the Agreement by written notice with immediate effect without liability to the Customer if the Customer:
(a) - fails to pay any sum due to Cable and such sum remains outstanding for a further thirty (30) days following notice requiring such sum to be paid;
(b) - is in breach of Sections 6.1, 7.2 or 9; or
(c) - is in breach of any applicable law.
12.2 - Without prejudice to any other rights and remedies available to Cable, Cable may immediately suspend the Cable Service and any User Account without giving prior notice to the Customer, if:
(a) - the Customer is in material or persistent breach of any of the terms of the Agreement;
(b) - a User Account has been used to commit an actual or threatened violation of of Sections 5, 7.2 or 9; or
(c) - this Agreement has been terminated.
12.3 - Without prejudice to any other rights and remedies available to it, either party may terminate the Agreement at any time with immediate effect on giving notice in writing to the other party, if that other party:
(a) - is in material or persistent breach of any of the terms of the Agreement and either that breach is incapable of remedy, or, if capable of remedy, the other party fails to remedy the breach within thirty (30) days after receiving written notice requiring it to remedy the breach; or
(b) (i) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (ii) files, or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (iii) makes or seeks to make a general assignment for the benefit of its creditors; or (iv) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
12.4 - If Cable terminates the Agreement under Sections 12.1 or 12.3, all Fees that are unpaid at the date of termination and due for the remainder of the Initial Term or then-current Renewal Term (as applicable) shall, on termination, become due and payable immediately.
12.5 - On termination of the Agreement for any reason:
(a) - all outstanding amounts payable to Cable under the Agreement (and earned by Cable not in violation of this Agreement) shall become due immediately, without regard to any alleged right to set-off or recoupment;
(b) - all rights and licenses granted under the Agreement shall immediately terminate and the Customer's right to access and use, and grant Authorized Users the right to access and use the Cable Service will end; and
(c) - each party shall return to the other party or (at the other party's request) destroy, and make no further use of, any Confidential Information (and all copies thereof) belonging to the other party (provided that each party may retain documents and materials containing Confidential Information to the extent required by law or any applicable governmental or regulatory authority).
12.6 - Cable will provide to the Customer, if requested within thirty (30) days after the expiry or termination of the Agreement, a download of any Customer Data. Cable may thereafter:
(a) - delete any Customer Data at any time; or
(b) - retain Customer Data upon expiry or termination of the Agreement in order to comply with applicable law, or as Cable may reasonably deem necessary (pursuant to advice from qualified legal counsel) to prosecute or defend any legal claim (in which case Cable may retain Customer Data for a reasonable period of time pending resolution of such obligation or issue), in each case subject to the DPA.
12.7 - The Customer acknowledges and agrees that after the expiry or termination of the Agreement Cable may retain and use any Metrics created or derived from Customer Data, to the extent that such Metrics do not contain any Confidential Information or personal data of the Customer.
12.8 - Termination of the Agreement for whatever reason shall not affect any rights or remedies of the parties that have accrued up to the date of termination.
12.9 - The provisions set forth in the following sections, and any other right or obligations that expressly or by implication should survive the expiration or termination of this Agreement shall survive and continue in full force and effect: Sections 6.1(b), 6.1(g), 7, 8, 9, 12.5, 12.6, 12.7, 12.9, 13, 14, 15, and 17.
Except as expressly provided for in the Agreement:
(a) - The Cable Service is provided on an "AS IS" and “AS-AVAILABLE” basis and Cable gives no representations, warranties, conditions or other terms of any kind in respect of the Cable Service, whether express or implied, including (but not limited to) warranties of satisfactory quality, merchantability, fitness for a particular purpose, or non-infringement. ALL REPRESENTATIONS, WARRANTIES, CONDITIONS AND ALL OTHER TERMS OF ANY KIND WHATSOEVER IMPLIED BY STATUTE OR COMMON LAW ARE, TO THE FULLEST EXTENT PERMITTED BY LAW, DISCLAIMED; AND
(b) - CABLE WILL NOT BE RESPONSIBLE FOR ANY INTERRUPTIONS, DELAYS, FAILURES, OR NON-AVAILABILITY AFFECTING THE CABLE SERVICE OR THE PERFORMANCE OF THE CABLE SERVICE WHICH ARE CAUSED BY THIRD PARTY SERVICES (INCLUDING THIRD PARTY SITES), ERRORS OR BUGS IN THIRD PARTY SOFTWARE, HARDWARE, OR THE INTERNET ON WHICH CABLE RELIES TO PROVIDE THE CABLE SERVICE, OR ANY CHANGES TO THE CABLE SERVICE MADE BY OR ON BEHALF OF THE CUSTOMER, AND THE CUSTOMER ACKNOWLEDGES THAT CABLE DOES NOT CONTROL SUCH THIRD PARTY SERVICES AND THAT SUCH ERRORS AND BUGS ARE INHERENT IN THE USE OF SUCH SOFTWARE, HARDWARE AND THE INTERNET.
14.1 - Except for Cable’s indemnification obligations under section 15, Cable will not be liable to Customer, under any legal or equitable theory, including contract, tort (including negligence) or restitution, or for breach of statutory duty or misrepresentation, or otherwise, for any loss arising under or in connection with the Agreement in connection with a loss (whether direct or indirect) of production, use, profit, goodwill, business, business opportunity, revenue, turnover or reputation, loss (whether direct or indirect) of anticipated saving or wasted expenditure; loss of or damage to data, or any special, indirect or consequential damage or loss, costs or expenses. Cable shall not, under any circumstances, be liable to Customer for any exemplary, special, enhanced or punitive damages.
14.2 - Except for Cable’s indemnification obligations under section 15, Cable ’s total aggregate liability for all claims arising under the Agreement in contract, tort (including negligence) or restitution, or for breach of statutory duty or misrepresentation, or otherwise shall be limited to the fees paid or payable by Customer to Cable in the twelve (12) months prior to the event giving rise to a claim hereunder.
15.1 Cable’s Indemnification of Customer
Cable shall indemnify, defend, and hold harmless Customer and Customer's officers, directors, employees, agents, permitted successors and assigns (each, a "Customer Indemnitee")] from and against any and all Losses incurred by
(i) - Customer Indemnitee resulting from any Action by a third party (other than an Affiliate of a Customer Indemnitee) that Customer's or an Authorized User's use of the Cable Service (excluding Customer Data and Third-Party Materials) in accordance with this Agreement (including the Specifications) infringes or misappropriates such third party's Intellectual Property Rights. The foregoing obligation does not apply to the extent that the alleged infringement arises from:
Customer Data, including any Processing of Customer Data by or on behalf of Cable in accordance with this Agreement; or
(ii) - Allegation of facts that, if true, would constitute Customer’s breach of any of its representations, warranties, covenants or obligations under this Agreement; or
(iii) - Gross Negligence or wilful misconduct by Customer or its Authorized User, or any third party acting on behalf of Customer or any Authorized User, in connection with this Agreement.
THIS SECTION 15.1 SETS CUSTOMER’S SOLE REMEDY AND CABLE’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES OR ANY SUBJECT MATTER OF THIS AGREEMENT INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
15.2 - Customer’s Indemnification of Cable
Customer shall indemnify, defend, and hold harmless Cable and its Affiliates, and each of its and their respective officers, directors, employees, agents, successors, and assigns (each, a "Cable Indemnitee") from and against any and all Losses incurred by such Cable Indemnitee, or resulting from any Action by a third party (other than an Affiliate of a Cable Indemnitee) that arise out of or result from, or are alleged to arise out of or result from:
(i) - Customer Data, including any Processing of Customer Data by or on behalf of Cable in accordance with this Agreement; or
(ii) - Allegation of facts that, if true, would constitute Customer’s breach of any of its representations, warranties, covenants, or oblitations under this Agreement.
(iii) - Regulatory investigation or enforcement activity arising from or related to Customer’s use of the Cable Service.
Notwithstanding the foregoing, Customer shall have no indemnification obligation for Losses caused by gross negligence or wilful misconduct of any Cable Indemnitee.
15.3 - Indemnification Procedure
Each party shall promptly notify the other party in writing of any action for which such party believes it is entitled to be indemnified pursuant to Section 15(a) or 15(b), as the case may be. The party seeking indemnification (the "Indemnitee") shall cooperate with the other party (the "Indemnitor") at the Indemnitor's sole cost and expense. The Indemnitor shall promptly assume control of the defense and shall employ counsel reasonably acceptable to the Indemnitee to handle and defend the same, at the Indemnitor's sole cost and expense. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing. The Indemnitor shall not settle any action on any terms or in any manner that adversely affects the rights of any Indemnitee without the Indemnitee's prior written consent. If the Indemnitor fails or refuses to assume control of the defense of such action, the Indemnitee shall have the right, but no obligation, to defend against such action, including settling such action after giving notice to the Indemnitor, in each case in such manner and on such terms as the Indemnitee may deem appropriate. The Indemnitee's failure to perform any obligations under this Section 15(c) will not relieve the Indemnitor of its obligations under this Section 15, except to the extent that the Indemnitor can demonstrate that it has been 5 prejudiced as a result of such failure.
The Customer understands that Cable is always innovating and finding ways to improve the Cable Service with new features and services. Cable reserves the right, in its sole discretion, to make any changes to the Cable Service and Provider Materials that it deems necessary or useful to: (a) maintain or enhance: (i) the quality or delivery of Provider's services to its customers; (ii) the competitive strength of or market for Provider's services; or (iii) the Services' cost efficiency or performance; or (b) to comply with applicable law. Without limiting the foregoing, either party may, at any time during the Term, request in writing changes to the Services. The Customer acknowledges and agrees that the Cable Service may change from time to time and no warranty, representation or other commitment is given in relation to the continuity of any functionality of the Cable Service,.
17.1 - Written communications
This Agreement requires certain notices and other communications to be in writing. Applicable laws may require that some of the information or communications that Cable sends to the Customer should be in writing. When using the Cable Service, the Customer accepts that communication with Cable will mainly be electronic and that each party may contact the other by e-mail. For contractual purposes, the Customer agrees to this electronic means of communication and the Customer acknowledges that all contracts, notices, information and other communications that Cable provides to the Customer electronically and pursuant to Section 17.2 (Notices) comply with any legal requirement that such communications be in writing.
17.2 - Notices
All notices given by the Customer to Cable must be submitted to [email protected]. Customer shall provide a point of contact and a valid email address to deliver any notice regarding this Agreement or pursuant to Applicable Law. Cable may give notice to the Customer at either the e-mail or postal address the Customer provides to Cable, or in writing with delivery to Customer’s principal offices or registered agent. Notice will be deemed received and properly served 24 hours after an e-mail is sent. In proving the service of any notice, it will be sufficient to prove that such e-mail was sent to the specified e-mail address of the addressee. Written notice sent to Customer’s postal address, principal offices or registered agent shall be deemed to be received 3 days after mailing.
17.3 - Public Announcements
Neither party shall make, or permit any person to make, any public announcement concerning the existence, subject matter or terms of this Agreement, the wider transactions contemplated by it, or the relationship between the parties, without the prior written consent of the other party (such consent not to be unreasonably withheld or delayed), except as permitted under this Agreement or as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction. Notwithstanding the forgoing, the parties contemplate, without covenanting, issuing a joint announcement in the form and substance reasonably acceptable to each party at an appropriate time.
17.4 - Assignment
Customer shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance under this Agreement, in each case whether voluntarily, involuntarily, by operation of law, or otherwise, without Cable's prior written consent. For purposes of the preceding sentence, and without limiting its generality, any merger, consolidation, or reorganization involving Customer (regardless of whether Customer is a surviving or disappearing entity) will be deemed to be a transfer of rights, obligations, or performance under this Agreement for which Cable's prior written consent is required. No assignment, delegation, or transfer will relieve Customer of any of its obligations or performance under this Agreement. Any purported assignment, delegation, or transfer in violation of this Section 16.4 is void. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective successors and permitted assigns.
17.5 - Force Majeure
(a) - No Breach or Default
In no event will either party be liable or responsible to the other party, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, (except for any obligations to make payments), when and to the extent such failure or delay is caused by any circumstances beyond such party's reasonable control (a "Force Majeure Event"), including (i) acts of God; (ii) flood, fire, earthquake, or explosion; (iii) epidemics or pandemics; (iii) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (iv) government order, law, or actions; (v) embargoes or blockades in effect on or after the date of this Agreement; and (vi) shortage of adequate power or transportation facilities. Either party may terminate this Agreement if a Force Majeure Event affecting the other party continues substantially uninterrupted for a period of 30 days or more.
(b) - Affected Party Obligations
In the event of any failure or delay caused by a Force Majeure Event, the affected party shall give prompt written notice to the other party stating the period of time the occurrence is expected to continue and use commercially reasonable efforts to end the failure or delay and minimize the effects of such Force Majeure Event.
17.6 - Third party rights
Other than as expressly stated in the Agreement, a person or entity who is not a party to the Agreement may not enforce any of its terms hereunder.
17.7 - Waiver
No forbearance or delay by either party in enforcing its rights shall prejudice or restrict the rights of that party, and no waiver of any such rights or any breach of any contractual terms shall be deemed to be a waiver of any other right or of any later breach.
17.8 - Severability
If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
17.9 - Entire agreement
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. Each party acknowledges that in entering into this Agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty that is not set out in this Agreement.
17.10 - Governing Law; Submission to Jurisdiction
This Agreement is governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of California. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of California in each case located in San Francisco, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding. Service of process, summons, notice, or other document by mail to such party's address set forth herein will be effective service of process for any suit, action, or other proceeding brought in any such court.
17.11 - Waiver of Jury Trial
Each party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement or the transactions contemplated hereby.
17.12 - Counterparts
This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, email, or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement. Each party agrees that any electronic signatures of the parties included in this Agreement are intended to authenticate this writing and to have the same force and effect as manual signatures, to the extent and as provided for under applicable law, including [the Electronic Signatures in Global and National Commerce Act of 2000 (15 U.S.C. §§ 7001 to 7031) and/or the Uniform Electronic Transactions Act (UETA).
1.1 - This DPA applies as set out in Section 8 of the Agreement.
1.2 - In the event of a conflict between any of the provisions of this DPA and any other provisions of the Agreement, the provisions of this DPA shall prevail.
2.1 - Unless otherwise set out below, each capitalized term in this DPA shall have the meaning set out in the Agreement and the following capitalized terms used in this DPA shall be defined as follows:
"Customer Personal Information" means any personal information contained in the Customer Data that Cable Processes on behalf of Customer in connection with the provision of the Cable Service;
"Mandatory Clauses" means Part 2: Mandatory Clauses of the Approved Addendum, being the template Addendum B.1.0 issued by the UK Information Commissioner and laid before the UK Parliament in accordance with s119A of the Data Protection Act 2018 on 2 February 2022, as it is revised under Section 18 of those Mandatory Clauses;
"Processing" means any operation or set of operations which is performed on Customer Personal Information or on sets of Customer Personal Information, whether or not by automated means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction, and "Process" will be interpreted accordingly;
"SCCs" means Module Two (controller to processor) of the Standard Contractual Clauses annexed to Commission Implementing Decision (EU) 2021/914;
"Security Incident" means any accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, any Customer Personal Information;
"Subcontractor" means any person or legal entity engaged by Cable who Processes any Customer Personal Data on behalf of Customer.
2.2 - The terms "consumer", "personal information", "sell", "service provider" and "sale" shall have the meanings given to them in the CCPA.
3.1 Role of the parties
For the purposes of the CCPA, the parties acknowledge and agree that Cable shall act as a “service provider,” as such term is defined in the CCPA, in its performance of its obligations under the Agreement.
3.2 - Instructions for Processing
Cable shall retain, use, disclose and otherwise Process Customer Personal Information solely for the purposes of performing its obligations under the Agreement, or any purpose expressly permitted by the CCPA, or as required by law.
3.3 - Disclosure
Cable shall not disclose, release, transfer, make available, or otherwise communicate any Customer Personal Information to another business or third party without the prior written consent of the Customer unless and to the extent that such disclosure is made to a Subcontractor for a business purpose pursuant to a written agreement to protect Customer Personal Information in the same manner as provided in this DPA. Notwithstanding the foregoing, nothing in the Agreement shall restrict Cable's ability to disclose Customer Personal Information to comply with applicable laws.
3.4 - Sale
Cable shall not sell, license, rent, disclose, release, transfer, make available or otherwise communicate any Customer Personal Information to another business or third party for monetary or other valuable consideration without the consent of the Customer or the consumer to whom the Customer Personal Information relates. Notwithstanding the foregoing, disclosures to a third party in the context of a merger, acquisition, bankruptcy or other transaction shall be permitted in accordance with the terms of the Agreement.
3.5 - Access and Deletion
Cable shall Process Customer Personal Information in compliance with its obligations under the CCPA and, where possible, assist Customer (at Customer's cost) in complying with Customer's obligations under the CCPA, and specifically Cable shall:
(a) - upon Customer's request provide the Customer with the ability to securely delete, access or procure a copy of Customer Personal Information;
(b) - return or delete Customer Personal Information promptly upon termination of the Agreement in accordance with the terms of the Agreement.
3.6 - Security
Cable shall maintain commercially reasonable administrative, physical, technical, and organizational controls that protect the Customer Personal Information against any unauthorized access, disclosure, or use, and shall notify Customer of any Security Incident which may compromise the security of Customer Personal Information in accordance with the terms set forth in the Agreement.
3.7 - Certification of Compliance
Cable certifies that it understands the foregoing obligations and shall comply with them for the duration of the Agreement and for as long as Cable Processes Customer Personal Information.
4.1 - To the extent that:
(a) - the GDPR applies to the Customer's Processing of Customer Personal Information when it transfers that Customer Personal Information to Cable; or
(b) - the Customer is under an obligation to enter into the SCCs in respect of the transfer of Customer Personal Information to Cable as an "onward transfer" (as defined in the Standard Contractual Clauses annexed to Commission Implementing Decision (EU) 2021/914),
the Customer shall notify Cable prior to transferring such Customer Personal Information to Cable, and the parties shall execute an unamended (subject to paragraph 4.2) form of the SCCs, or an agreement incorporating such SCCs, in respect of such transfer of Customer Personal Information by the Customer to Cable.
4.2 - To the extent that:
(a) - the UK GDPR applies to the Customer's Processing of Customer Personal Information when it transfers that Customer Personal Information to Cable; or
(b) - the Customer is under an obligation to enter into the Mandatory Clauses in respect of the transfer of Customer Personal Information to Cable is an "onward transfer" (as defined in the Mandatory Clauses),
the Customer shall notify Cable prior to transferring such Customer Personal Information to Cable, and the parties shall execute an addendum incorporating the Mandatory Clauses in respect of such transfer of Customer Personal Information by the Customer to Cable.
4.3 - For the purposes of the SCCs and the Mandatory Clauses:
(a) - the Agreement shall be the Customer's instructions for the processing of Customer Personal Information;
(b) - to the extent that any of the Customer's instructions require processing of Customer Personal Information in a manner that falls outside the scope of the Cable Service, Cable may:
(i) - make the performance of any such instructions subject to the payment by the Customer of any costs and expenses incurred by Cable or such additional charges as Cable may reasonably determine; or
(ii) - decline to follow such instructions;
(c) the Customer shall grant Cable authorisation to engage the sub-processors listed in Appendix 1 in accordance with Option 2 of Clause 9 of the SCCs;
(d) - the Customer shall pay to Cable on demand all out-of-pocket costs and expenses reasonably incurred by Cable in connection with:
(i) - facilitating and contributing to any audits of Cable under Clauses 8.9(c) and (d) of the SCCs;
(ii) - responding to queries or requests for information from the Customer relating to the processing of Customer Personal Information under Clauses 8.9(a), 8.9(c) or 8.9(e) of the SCCs;
(iii) - any assistance provided by Cable to the Customer with its fulfilment of its obligations to respond to data subjects' requests for the exercise of their rights under the GDPR; and
(iv) - any assistance provided by Cable to the Customer with any data protection impact assessments or prior consultation with any supervisory authority of the Customer.
In the event of any changes to the Data Protection Legislation applicable to the Processing of Customer Personal Information envisaged under the Agreement that become effective after the date of the Agreement, the parties shall execute such additional agreements as required to comply with such Data Protection Legislation.
The provisions of this DPA and, where applicable, the SCCs and Mandatory Clauses shall apply for the duration of the Agreement and for as long as Cable Processes Customer Personal Information.
Cable Subprocessors
List of approved Subprocessors:
No.: 1
Name of approved Subprocessor: AWS
Location: London
Processing Activity: Cloud Infrastructure for the Cable Service
No.: 2
Name of approved Subprocessor: Google Cloud
Location: London
Processing Activity: Cloud Infrastructure for the Cable Service
No.: 3
Name of approved Subprocessor: Sentry
Location: London
Processing Activity: Error monitoring