Terms & Conditions: TB Alliance
- DEFINITIONS AND INTERPRETATION
1.1 In this agreement, unless the context otherwise requires:
“Business Day” means any day except any Saturday, any Sunday, any day which is a federal legal holiday in the United States;
“Charges” means the charges payable by the Customer to TB Alliance for the provision of the Services;
“Confidential Information” means all confidential information and technical know-how relating to the Services and the business of each party, including the information or documents of Customer’s clients provided to TB Alliance for the purpose of this agreement and the terms of this agreement, but excluding any information:
(a) which is publicly known or becomes publicly known other than by a breach of this agreement; or
(b) which, when it is disclosed to the other party, is already known to that party; or
(c) which after being disclosed to the other party, is disclosed to that party again by a third party at liberty to disclose it to that party; or
(d) which is independently developed by an employee or employees of the recipient who have not been exposed, either directly or indirectly, to the Confidential Information, and such development is promptly communicated with all details to the discloser; or
(e) which is disclosed as is necessary to establish or enforce obligations under this agreement.
“CPI” means the Consumer Price Inflation index, or if that index is no longer published, an alternative index that most closely resembles it;
“Customer’s Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the Customer, where “control” means the beneficial ownership of more than 50% of the issued share capital of a company or the legal power to direct or cause the direction of the general management of the company, and “controls”, and “controlled” shall be construed accordingly;
“Effective Date” means the date of this agreement;
“Intellectual Property Rights” means, to the extent that any of the following are recognised in any jurisdiction, any intellectual property and/or proprietary rights whether registered or unregistered, legal or beneficial, and whether subsisting now or in the future including: copyrights, patent rights (including applications for patent protection); publicity rights, trade secret rights; registered or otherwise protected trademarks, trade names and service marks and protections from trademark dilution;
“Good Industry Practice” means the exercise of that degree of skill, care, diligence prudence and foresight that would ordinarily be expected from a skilled and experienced person seeking in good faith to comply with its contractual obligations under this agreement and all applicable law and engaged in the same type of undertaking and under the same or similar circumstances and conditions as those envisaged by this agreement;
“Original Works” means the documents, files, materials and works provided by the Customer for the purposes of carrying out the Services;
“Pre-existing Intellectual Property” means any Intellectual Property Rights, which are owned by or licensed to TB Alliance or its Sub-contractor prior to the Effective Date or independently of the provision of the Services;
“Services” means the services provided to the Customer by TB Alliance under this agreement and set out at Schedule 1;
“Staff” mean the natural persons who provide the Services on behalf of TB Alliance, who may be employees of TB Alliance or Sub-contractors or supplied by a Sub-contractor;
“Sub-contractor” means a person providing elements of the Services to TB Alliance under a contract for services, including a self-employed individual;
“Translated Works” means the result of all translations of Original Works and Services required to be undertaken by TB Alliance on behalf of the Customer under this agreement.
“Purchase Order” means an order for Services indicating that the Customer wishes to purchase the Services, such order being delivered by any job submission system as agreed between the parties from time to time;
In this agreement, unless the context otherwise requires:
1.1.1 a reference to delivery of the Translated Works has the meaning given in clause 7.3;
1.1.2 the singular includes the plural and vice versa and words in one gender include both genders;
1.1.3 a reference to a statute or statutory provision includes:
22.214.171.124 any subordinate legislation made under it;
126.96.36.199 any repealed statute or statutory provision which it re-enacts (with or without modification); and
188.8.131.52 any statute or statutory provision which modifies, consolidates, re-enacts or supersedes it;
1.1.4 a reference to:
184.108.40.206 any party includes its successors in title and permitted assignees;
220.127.116.11 a “person” includes any individual, firm, body corporate, association or partnership, government or state (whether or not having a separate legal personality);
18.104.22.168 a clause or Schedule is to a clause of or Schedule to this agreement;
1.1.5 the headings of clauses are for convenience only and shall not affect the interpretation;
1.2 In the event of any conflict between any part of this agreement, the documents constituting the agreement between the parties shall have priority in the following order:
1.2.1 the body of this agreement entitled “Service Agreement”; and
1.2.2 the Schedules to this agreement.
1.3 Any words following the terms “including”, “include”, “in particular”, “for example” or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
- TERMS OF BUSINESS
2.1 The Customer shall submit Purchase Orders to TB Alliance from time to time in such manner as may be agreed between the parties.
2.2 TB Alliance may decline any Purchase Order if, in TB Alliance’s sole opinion, it is unable to provide the Services set out in the Purchase Order including, without limitation, circumstances where there is insufficient time, resources or information available to TB Alliance to provide the Services requested.
2.3 If TB Alliance accepts a Purchase Order, TB Alliance shall notify the Customer that it accepts the Purchase Orders under the terms of this agreement.
2.4 Where insufficient information is given to TB Alliance in a Purchase Order, TB Alliance may request further information from the Customer prior to acceptance of the Purchase Order.
2.5 In consideration of the performance of the Services, the Customer shall pay TB Alliance the Charges in accordance with the provisions of clause
- TB Alliance’S OBLIGATIONS
3.1 TB Alliance shall provide the Services in accordance with Good Industry Practice
3.2 TB Alliance shall use its reasonable endeavours to provide the Services to meet the specific requirements of the Customer provided that the Customer notifies TB Alliance in writing of any specific requirements and these requirements are agreed in writing between the parties prior to acceptance by TB Alliance of the relevant Purchase Order.
3.3 TB Alliance shall use all reasonable care and skill in selecting TB Alliance Staff to perform the Services in accordance with the terms of this agreement.
3.4 TB Alliance shall ensure the relevant TB Alliance Staff is available for the performance of the Services, failing which TB Alliance shall promptly replace any missing person from the TB Alliance Staff by another relevant person for the performance of the Services.
3.5 The Customer acknowledges that any Original Works and Translated Works submitted by either party over the internet cannot be guaranteed to be free from the risk of interception, loss, or corruption during transmission, even if transmitted in encrypted form, and that TB Alliance has no liability for such loss, corruption or interception of any Original Works or Translated Works.
3.6 TB Alliance shall not be obliged to continue to perform the Services where, at its sole discretion, TB Alliance considers this would involve a breach of warranty given by the Customer under this agreement or an illegal act or a safety hazard.
- CUSTOMER’S OBLIGATIONS
4.1 The Customer undertakes and agrees with TB Alliance that it shall at all times during the continuance of this agreement:
4.1.1 obtain and maintain all consents, permissions and licenses necessary to enable TB Alliance to perform its obligations under this agreement;
4.1.2 provide sufficient information and materials to TB Alliance as reasonably requested by TB Alliance in the provision of the Services and performance of its obligations under this agreement; and
4.2 Any quotations requested by the Customer and provided by TB Alliance from time to time in respect of the Services (“Quotations”) shall not be binding on TB Alliance and are given on the basis that the terms quoted will remain open for the placing of a Purchase Order for up to 30 days from the date of quotation. Notwithstanding the foregoing, TB Alliance may withdraw the Quotation at any time before the Customer places a Purchase Order.
4.3 Quotations are given on the basis of any description given by the Customer or its authorized representatives of the Original Works, the purpose of the translation and any other relevant instructions given to TB Alliance necessary to enable TB Alliance to perform the Services. Such quotations may be amended at any time if, in TB Alliance’s sole opinion, the said description is materially inadequate or inaccurate to the relevant Purchase Order.
4.4 The Customer hereby warrants and undertakes to TB Alliance that it has all requisite corporate power and authority to enter into this agreement.
- CHARGES AND PAYMENT
5.1 In consideration of the provision of the Services, the Customer shall pay TB Alliance the Charges at the rates set out at Schedule 2, or (if different) the rates set out in the relevant Quotation, on the terms and conditions set out in this agreement. After review original documents, additional fees and charges may be applied, including but not limited to, handwritten document upcharge due to translation complexity.
5.2 TB Alliance may increase the rates set out at Schedule 2 annually by up to the percentage increase (if any) in CPI over the preceding 12 months.
5.3 Where any Charges are to be invoiced in a currency other than US Dollars and a Currency Fluctuation occurs then TB Alliance may revise the Charges to ensure that the US Dollar value of the Charges invoiced is the same as the US Dollar value of the Charges when TB Alliance accepted the Customer’s Purchase Order. For the purposes of this clause 6.3:
5.3.1 a “Currency Fluctuation” occurs if there is a change of five percent or more in the value of that other currency against US Dollar between the date TB Alliance accepts the relevant Purchase Order and the date TB Alliance prepares its invoice; and
5.3.2 the value of the US Dollar against the other currency means the value determined by the spot exchange rate published by the Federal Reserve.
5.4 The Charges shall be exclusive of value added tax (if any) or any other local applicable equivalent taxes, which shall be paid by the Customer at the rate and the manner prescribed by law from time to time. TB Alliance shall invoice the Customer for all such taxes and the Customer shall pay them to TB Alliance on the terms of this agreement.
5.5 For Services lasting over 21 days TB Alliance may invoice the Customer for 50% of the Charges on commencement and the remaining 50% seven or more days after Delivery. For Services running under 21 days TB Alliance may invoice the Customer seven or more days after Delivery.
5.6 The Customer shall pay TB Alliance’s invoices within 30 days from the date of receipt of the invoice, without any deduction, set-off, or counterclaim.
5.7 Failure to pay any invoice in accordance with the terms of this agreement shall entitle TB Alliance to suspend further work without prejudice to any other right TB Alliance may have.
5.8 TB Alliance reserves the right to charge interest on overdue accounts, such interest to be calculated monthly on the amount outstanding at the rate of 4 per cent per year on the sums due on each unpaid invoices, or the maximum amount permitted by law if less than 4 per cent per year.
6.1 TB Alliance shall use reasonable endeavors to deliver the Translated Works and carry out the Services within the timescales (if any) set out in the Quotation; provided, however, that no delivery dates shall be deemed “of the essence.” If TB Alliance anticipates that it will not be able to meet those timescales TB Alliance shall communicate this to the Customer before the end of those timescales and shall discuss steps to reduce or remedy the delay or agree new timescales.
6.2 TB Alliance shall not be responsible for any delay in performing TB Alliance’s obligations if:
6.2.1 that delay is caused by the actions or omissions of the Customer, including any delay in providing the Original Works, any changes made by the Customer to the Original Works, or any changes requested by the Customer to the Services; or
6.2.2 the delay is due to the occurrence of a force majeure event as set out at clause 16.
6.3 For the purposes of this agreement the Translated Works shall be deemed delivered:
6.3.1 at the time when TB Alliance provides the Translated Works to the postal service or other delivery service (if TB Alliance has agreed physical delivery of the Translated Works);
6.3.2 at the time when TB Alliance sends the Translated Works to the email address set out in the relevant Purchase Order (if TB Alliance has agreed delivery by email); and
6.3.3 in any other case, at the time when TB Alliance informs the Customer that the Translated Work is available for download from TB Alliance’s online document platform.
7.1 For Services involving Interpreting, a 48-hour business cancellation applies, along with the following cancellation policies:
7.1.1 TB Alliance may invoice the Customer for 50% of the interpreting Charges should the Customer cancel the assignment within 10 working days prior to the start date.
7.1.2 TB Alliance may invoice the Customer for 100% of the Charges should the Customer cancel the assignment within 5 working days prior to the start date.
7.1.3 TB Alliance may invoice the Customer for 100% of the non-refundable travel Charges should the Customer cancel the assignment after it has been approved in writing.
7.1.4 TB Alliance will charge the Customer 100% of the equipment Charges should the Customer cancel the assignment after it has been approved in writing. The 100% will be communicated to the Customer upon confirmation of the assignment.
7.1.5 TB Alliance reserves the right to amend the above cancellation policy as per the relevant Quotation based on the cancellation policies of the Staff selected.
- TERM AND TERMINATION
8.1 Either party shall be entitled forthwith to terminate this agreement at any time by written notice if:
8.1.1 the other party commits a material breach of any of the provisions of this agreement and, in the case of a breach capable of remedy, fails to remedy the same within thirty days after receipt of written notice giving full particulars of the breach and requiring it to be remedied;
8.1.2 the other party goes into liquidation, or an encumbrance takes possession of or an administrative receiver or a receiver or administrator is appointed over any of the property or assets of that party, or an administration order is made in respect of that other party or that other party makes a voluntary arrangement with its creditors, or the other party files a voluntary bankruptcy petition or has an involuntary bankruptcy petition filed against it;
8.1.3 any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 8.3.2.
8.2 Any notice to be given to the Customer under this agreement must be in writing and may be delivered by hand or sent by prepaid recorded delivery post to the address of the other party as shown in this agreement marked for the attention of the person signing this agreement or a designated officer of the other party. Notice sent by recorded delivery post shall be deemed to have been received on the day of delivery recorded by the postal service unless that day is not a Business Day, in which case it shall be deemed received on the next Business Day after that day.
8.3 Any notice to be given to TB Alliance under this agreement must be in writing and delivered by email to firstname.lastname@example.org. Notices sent in this way shall be deemed to have been received at 9am on the next Business Day after sending.
- CONSEQUENCES OF TERMINATION
9.1 On termination of this agreement howsoever occurring:
9.1.1 TB Alliance shall cease performing the Services and may invoice for any Services performed up to the date of termination;
9.1.2 TB Alliance’s unpaid invoices shall fall due immediately;
9.1.3 subject to payment by the Customer of TB Alliance’s invoices, TB Alliance shall deliver to the Customer any Translated Works prepared prior to termination that have not yet been delivered;
9.1.4 the parties shall do all things as reasonably required to ensure a smooth transfer of business between the parties and TB Alliance shall deliver to the Customer, at the Customer’s expense and where reasonably practicable, all Original Works and other materials supplied to TB Alliance, except as required by law or to maintain proper books and records; and
9.1.5 each party shall return to the other any of the other party’s Confidential Information.
9.2 Where the Customer requests the assistance of TB Alliance under clause 9.1.4, TB Alliance reserves the right to charge a fee for providing any additional services and/or materials or products at the request of the Customer.
9.3 The parties’ obligations under the provisions of this agreement shall survive the ending of this agreement for any reason where it is expressly or by implication intended that such provision shall survive termination.
9.4 Termination of this agreement does not affect either party’s accrued rights and obligations at the date of termination.
10.1 Subject to clause 10.2 and save as necessary in order to perform its obligations and exercise its rights under the agreement neither party may use or disclose any of the other party’s Confidential Information.
10.2 Either party may disclose the Confidential Information of the other:
10.2.1 when required to do so by law or any regulatory authority, provided that party required to disclose the Confidential Information, where practicable and lawful to do so:
10.2.1.1 promptly notifies the owner of any such requirement; and
10.2.1.2 co-operates with the owner regarding the manner, scope or timing of such disclosure or any action that the owner may take to challenge the validity of such requirement;
10.2.2 to its (or any of its associated company’s) personnel, sub-contractors’ personnel or any person whose duties reasonably require such disclosure, on condition that the party making such disclosure ensures that each such person to whom such disclosure is made:
10.2.2.1 is informed of the obligations of confidentiality under this agreement; and
10.2.2.2 complies with those obligations as if they were bound by them.
10.3 The obligation of confidentiality contained within this clause shall survive termination of the agreement howsoever caused.
- LIMITATION OF LIABILITY
11.1 NOTHING IN THIS AGREEMENT EXCLUDES OR LIMITS THE LIABILITY OF EITHER PARTY FOR:
11.1.1 DEATH OR PERSONAL INJURY CAUSED BY ITS NEGLIGENCE;
11.1.2 FRAUD OR FRAUDULENT MISREPRESENTATION;
11.1.3 ANY OTHER LIABILITY THAT CANNOT LEGALLY BE EXCLUDED OR LIMITED.
11.2 THE AGGREGATE LIABILITY OF TB ALLIANCE ARISING OUT OF OR IN CONNECTION WITH ANY PURCHASE ORDER, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), MISREPRESENTATION, OR ANY OTHER THEORY OF LAW SHALL NOT EXCEED THE AGGREGATE CHARGES PAYABLE UNDER THE PURCHASE ORDER.
11.3 TB ALLIANCE SHALL HAVE NO LIABILITY ARISING OUT OF OR IN CONNECTION WITH ANY PURCHASE ORDER OR THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), MISREPRESENTATION, OR ANY OTHER THEORY OF LAW FOR:
11.3.1 LOSS OF PROFIT OR REVENUE;
11.3.2 LOSS OF PRODUCTION OR BUSINESS;
11.3.3 LOSS OF REPUTATION OR DAMAGE TO GOODWILL;
11.3.4 ANY INDIRECT, CONSEQUENTIAL, OR SPECIAL LOSS; OR
11.3.5 PUNITIVE DAMAGES.
11.4 Except as expressly set out in this agreement, all terms, conditions and warranties, implied by statute (including without limitation those of satisfactory quality or fitness for purpose), common law, custom, trade usage or otherwise, are excluded from agreement to the fullest extent permitted by law.
11.5 The Customer agrees upon demand, to indemnify and keep indemnified TB Alliance (which for the purposes of this clause includes TB Alliance’s Staff, agents and representatives) from all losses, damages, injury, costs claims and expenses of whatever nature, including third party claims, suffered by TB Alliance arising out of or in connection with a breach by the Customer of any of the Customer’s obligations under this agreement.
12.1 TB Alliance may supply the Services through Sub-contractors. TB Alliance shall be entitled to select such Sub-contractors as it thinks fit to perform the Services. No sub-contracting shall in any way relieve TB Alliance from its obligations to provide the Services and TB Alliance shall, subject to the provisions of clauses 7 and 11 of this agreement, be liable for any Sub-contractor’s performance of the Services.
12.2 TB Alliance shall notify all Staff of the Customer’s compliance, confidentiality, safety, security and other relevant rules and policies which are notified to TB Alliance in writing by the Customer (“the Customer’s Policies”). If any Staff are in breach of any of the Customer’s Policies, the Customer shall (as its sole remedy) have the right to demand that such Staff cease to be assigned to provide Services with immediate effect in which case TB Alliance will remove such Staff from provision of the Services.
Unless otherwise agreed by TB Alliance, the Customer (which for the purposes of this clause includes any of the Customer’s Affiliates) shall not, during this agreement and for a period of one year after termination of the agreement, either directly or indirectly, on its account or for any other person, firm or company solicit, employ, endeavor to entice away from TB Alliance or use the services of TB Alliance’s Staff or any of its freelance linguists. In the event of any breach under this clause, the Customer shall pay to TB Alliance an amount equal to the aggregate remuneration paid by TB Alliance to that member of Staff for the year immediately prior to the date on which the Customer employed or used the services of that member of Staff. In the case of a freelance linguist the amount will be equal to the equivalent of a full year full time salary. The Customer acknowledges that this is a proportionate method of protecting TB Alliance’s interest in remaining the Customer’s sole provider of the services of the Staff and freelance linguists.
TB Alliance and Customer agree that the damages set out in clause 13 (i) are not a penalty, (ii) that the damages which the parties might reasonably anticipate are difficult to ascertain at the time of entering the agreement because of their indefiniteness or uncertainty, and (iii) that the amount stipulated is either a reasonable estimate of damages which would probably be caused by the breach or is reasonably proportionate to the damages which will actually have been caused by the breach.
- INTELLECTUAL PROPERTY
14.1 The Customer warrants that:
14.1.1 all of the Intellectual Property Rights in the Original Works are owned by the Customer or its licensors.
14.1.2 the Original Works supplied by the Customer shall not contain anything of an obscene, blasphemous, libelous, or illegal nature;
14.1.3 the Original Works and TB Alliance’s use of them as permitted by this agreement shall not (directly or indirectly) infringe the Intellectual Property Rights of any third parties.
14.2 Nothing in this agreement shall transfer to TB Alliance or its Sub-contractors any Intellectual Property Rights in the Original Works. To the extent that TB Alliance or its Sub-contractors acquire any Intellectual Property Rights in the Original Works by operation of law the Customer hereby assigns or (as the case may be) shall procure its Sub-contractor assigns such rights to the Customer.
14.3 The Customer grants to TB Alliance (and the Sub-contractors) a non-exclusive, worldwide, royalty-free license for the duration of the agreement to translate, store, copy, modify and otherwise use the Original Works and (subject to clause 14.4) the Translated Works, in each case for the purposes of providing the Services.
14.4 Subject to clause 14.5, TB Alliance hereby assigns to the Customer all of its Intellectual Property Rights in the Translated Works and shall procure that its Sub-contractors assign to the Customer their Intellectual Property Rights in the Translated Works.
14.5 Nothing in this agreement shall transfer the Pre-existing Intellectual Property Rights. To the extent that the Translated Works contain any Pre-existing Intellectual Property Rights, TB Alliance grants to the Customer a non-exclusive, worldwide, perpetual, royalty-free, freely-assignable and sub-licensable licence to use those Pre-existing Intellectual Property Rights for the purpose of using the Translated Works.
14.6 The Customer agrees upon demand, to indemnify and keep indemnified TB Alliance (which for the purposes of this clause includes TB Alliance’s Staff, agents and representatives) from all losses, damages, injury, costs claims and expenses of whatever nature, including third party claims, suffered by TB Alliance arising out of or in connection with a breach by the Customer of any of the Customer’s warranties in clause 14.
- DATA PROTECTION
15.1 This clause 15 applies only to the extent that the Customer provides Personal Data to TB Alliance for the purpose of TB Alliance performing the Services.
15.2 In this clause 15:
15.2.1 “Controller”, “Data Subject”, “International Organization”, “Personal Data”, “Personal Data Breach”, “Processor” and “processing” shall have the respective meanings given to them in applicable Data Protection Laws from time to time (and related expressions, including process, processed and processes shall be construed accordingly);
15.2.2 “Data Protection Laws” means, as binding on either party or the Services:
22.214.171.124 the applicable federal and state data protection laws of United States of America;
126.96.36.199 any laws which implement any such laws; and
188.8.131.52 any laws that replace, extend, re-enact, consolidate or amend any of the foregoing;
15.2.3 “Protected Data” means Personal Data received from or on behalf of the Customer in connection with the performance of TB Alliance’s obligations under this agreement; and
15.2.4 “Sub-Processor” means any agent, subcontractor or other third party (excluding its employees) engaged by TB Alliance for carrying out any processing activities on behalf of the Customer in respect of the Protected Data.
Compliance with Data Protection Laws
15.3 The parties agree that the Customer is a Controller and that TB Alliance is a Processor for the purposes of processing Protected Data pursuant to this agreement. The Customer shall at all times comply with all Data Protection Laws in connection with the processing of Protected Data. The Customer shall ensure all instructions given by it to TB Alliance in respect of Protected Data (including the terms of this agreement) shall at all times be in accordance with Data Protection Laws.
15.4 TB Alliance shall process Protected Data in compliance with the obligations placed on it under Data Protection Laws and the terms of this agreement.
15.5 The Customer shall indemnify and keep indemnified TB Alliance against all losses, claims, damages, liabilities, fines, sanctions, interest, penalties, costs, charges, expenses, compensation paid to Data Subjects, demands and legal and other professional costs (calculated on a full indemnity basis and in each case whether or not arising from any investigation by, or imposed by, a supervisory authority) arising out of or in connection with any breach by the Customer of its obligations under this clause 15.
15.6 TB Alliance shall only process the Protected Data in accordance with the Customer’s instructions that are set out in Schedule 1, the relevant Purchase Order, this agreement, and any other instructions agreed between the parties in writing, unless otherwise required by applicable law (and shall inform the Customer of that legal requirement before processing, unless applicable law prevents it doing so on important grounds of public interest); and
15.7 Without prejudice to clause 15.3, if TB Alliance believes that any instruction received by it from the Customer is likely to infringe the Data Protection Laws it shall promptly inform the Customer and be entitled to cease to provide the relevant Services until the parties have agreed appropriate amended instructions which are not infringing.
15.8 TB Alliance shall implement and maintain technical and organizational measures that are appropriate, (taking into account the state of technical development, the nature of processing, the costs of implementation, the nature and scope of processing, and the risks to data subjects), to protect the Protected Data against accidental, unauthorized or unlawful destruction, loss, alteration, disclosure or access.
Sub-processing and personnel
15.9 TB Alliance may appoint Sub-Processors subject to the terms of this agreement.
15.10 The Sub-Processors that TB Alliance may appoint are:
15.10.1 the linguists that TB Alliance engages to carry out the Services, but only in relation to any Protected Data contained in the Original Works and Translated Works and only for the purpose of those linguists carrying out the Services;
15.11 TB Alliance shall not alter the criteria set out in clause 15.10 for appointing Sub-Processors without first notifying the Customer. If the Customer (acting reasonably) objects to the alteration TB Alliance shall not alter the criteria, but will not be obliged to provide any further Services to which the proposed alteration related.
15.12 Prior to a Sub-Processor carrying out any processing activities in respect of the Protected Data, TB Alliance shall appoint that Sub-Processor under a written contract containing materially the same obligations as under this clause 15;
15.13 TB Alliance shall remain fully liable to the Customer under this agreement for all the acts and omissions of each Sub-Processor as if they were its own.
15.14 TB Alliance shall ensure that all persons authorized by TB Alliance to process Protected Data are subject to a binding written contractual obligation to keep the Protected Data confidential.
15.15 TB Alliance shall (at the Customer’s cost):
15.15.1 assist the Customer in ensuring compliance with the Customer’s obligations pursuant to applicable Data Protection Laws taking into account the nature of the processing and the information available to TB Alliance; and
15.15.2 taking into account the nature of the processing, assist the Customer (by appropriate technical and organizational measures), insofar as this is possible, for the fulfilment of the Customer’s obligations to respond to requests for exercising the Data Subjects’ rights under applicable Data Protection Laws in respect of any Protected Data.
15.16 TB Alliance may transfer the Protected Data to territories outside the United States of America. If TB Alliance does so TB Alliance shall ensure that the conditions under the Data Protection Laws which restrict international transfers of Personal Data are satisfied. TB Alliance may do this by entering into standard contract clauses approved for that purpose pursuant to the Data Protection Laws with the recipients of the Protected Data on behalf of the Customer.
Audits and processing
15.17 TB Alliance shall, in accordance with Data Protection Laws, make available to the Customer such information that is in its possession or control as is necessary to demonstrate TB Alliance’s compliance with the obligations placed on it under this clause 15 and to demonstrate compliance with the obligations on each party imposed under any applicable Data Protection Laws, and allow for and contribute to audits, including inspections, by the Customer (or another auditor mandated by the Customer) for this purpose (subject to a maximum of one audit request in any 12 month period under this clause 15).
15.18 TB Alliance shall notify the Customer without undue delay and in writing on becoming aware of any Personal Data Breach in respect of any Protected Data.
15.19 On the end of the provision of the Services relating to the processing of Protected Data, at the Customer’s cost and the Customer’s option, TB Alliance shall either return all of the Protected Data to the Customer or securely dispose of the Protected Data (and thereafter promptly delete all existing copies of it) except to the extent that any applicable law requires TB Alliance to store such Protected Data. This clause 15 shall survive termination or expiry of this agreement.
- FORCE MAJEURE
Neither party shall be liable to the other for any delay or non-performance of its obligations under this agreement arising from any cause beyond its reasonable control including, without limitation, any of the following: act of God, governmental act, war, fire, flood, explosion or civil commotion. Subject to the affected party promptly notifying the other party in writing of the cause and the likely duration of the cause, the performance of the affected party’s obligations, to the extent affected by the cause, shall be suspended during the period that the cause persists.
Subject to the obligations of Clause 10, TB Alliance shall be entitled to disclose that it is providing, or has provided, the Services to the Customer and shall be entitled to use any trade name, trademark, service mark or other information which identifies the Customer in TB Alliance’s marketing and publicity activities.
- ENTIRE AGREEMENT AND CONFLICTS
18.1 This agreement and any documents referred to herein set out the entire agreement and understanding between the parties and supersedes all previous agreements between the parties relating to the subject matter.
18.2 Each party acknowledges that it has entered into this agreement in reliance only upon the representations, warranties and promises specifically contained or incorporated in this agreement and, save as expressly set out in this agreement, each party shall have no liability in respect of any other representation, warranty or promise made prior to the date of this agreement unless it was made fraudulently.
19.1 This agreement shall not be assigned by either party without the prior written consent of the other not to be unreasonably withheld or delayed.
19.2 This agreement shall be binding upon any successors in title of the parties.
- GENERAL PROVISIONS
20.1 Nothing in this agreement shall render any member of the Staff or Sub-contractor an employee, agent or partner of the Customer and except as provided in clause 15.15 nothing in this agreement shall make the other party the agent or partner of the other, or give either party the power to bind the other.
20.2 Nothing in this agreement shall confer on any third party any right or benefit under this agreement.
20.3 No variation of this agreement shall be effective unless it is in writing and signed by or on behalf of each of the parties.
20.4 To the extent that any provision of this agreement is found by any court or competent authority to be invalid, unlawful or unenforceable in any jurisdiction, that provision shall be deemed not to be a part of this agreement, it shall not affect the enforceability of the remainder of this agreement, nor shall it affect the validity, lawfulness or enforceability of that provision in any other jurisdiction. The Parties further agree to re-negotiate any so severed provision to bring the same within applicable legal requirements to the greatest extent possible.
20.5 No single or partial exercise, or failure or delay in exercising any right, power or remedy by any party shall constitute a waiver by that party of, or impair or preclude any further exercise of, that or any right, power or remedy arising under this agreement or otherwise.
20.6 This agreement and any disputes arising out of or in connection with it (including non-contractual disputes) shall be governed by and construed in accordance with the laws of the state of Florida without resort to conflicts of law principles.
20.7 Each party irrevocably agrees that the federal and state courts located in the state of Illinois shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this agreement or its subject matter or formation. The parties hereby waive any right they might have otherwise had, but for this clause
20.7, to file a motion to dismiss or transfer any such claim based on lack personal jurisdiction or forum non-conveniens.