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End User Terms and Conditions
Last updated May 14, 2021
Acceptance of Terms and Conditions:
The Client accepts the Terms and Conditions (hereafter known as T&C) in effect at the time of supply of the Software as a Service (hereafter known as SaaS)
MetrixData 360 Inc. may update these T&C at any time on one months written notice to the Client except that where a Fixed Term applies, the updated T&C will not apply for the remainder of the current Fixed Term but will apply for the renewal of that Fixed Term (if any) and any ongoing use beyond the end of the current Fixed Term (as applicable).
Without limiting clause 1.1(b), the Clients continued use of the SaaS confirms the Clients acceptance to be bound by the latest T&C.
Any additional or different terms that the Client may stipulate or state in any communication with MetrixData 360 Inc. will not be binding on MetrixData 360 Inc. or included in the SaaS Agreement unless expressly agreed in writing by MetrixData 360 Inc.
The SaaS Agreement is comprised of the Client Information, Selected Options, Relevant Pricing, these T&C (as updated from time to time under clause 1.1(b) above) and the Support Schedule.
These T&C apply to clients that purchase SaaS (or on whose behalf SaaS is purchased) and if there is a trial period available, also apply to that trial period.
The SaaS is available from MetrixData 360 Inc. directly and from Authorized Partners and is available at various Purchase Locations. Regardless of where the purchase is made, these T&C apply as between MetrixData 360 Inc. and the Client.
All capitalized terms used in these T&C have the meanings given to them in the definition section in clause 19.
Where someone other than the Client purchases SaaS on behalf of the Client, that person is deemed to have authority to accept these T&C for the Client.
If a Trial is available to the Client and the Client elects to use the SaaS for a Trial, the Client acknowledges that use of SaaS for the Trial is subject to these T&C.
Trial period
The Trial will commence when the Trial SaaS is made available to the Client. In order for the Trial SaaS to be available to the Client, the Client will need to follow the steps outlined to the Client by MetrixData 360 Inc., the Authorized Partner or at the Purchase Location, and accept these T&C. The Client acknowledges that the Trial is for the version of SaaS made available under the free trial offer, as hosted by MetrixData 360 Inc. The free trial will end on expiration of the Trial Period, unless terminated earlier under these T&C.
Provisioning for Trial
MetrixData 360 Inc. will provide the Trial SaaS to the Client in accordance with these T&C. MetrixData 360 Inc. will:
provide the Client with access to the Trial SaaS;
provide assistance with use of the SaaS as reasonably requested by the Client (or MetrixData 360 Inc. will procure the Authorized Partner to provide assistance). The assistance will be available from the Client during the hours notified by MetrixData 360 Inc., or the hours notified by the Authorized Partner or at the Purchase Location (as applicable). If no hours are notified, MetrixData 360 Inc. or relevant Authorized Partner will use reasonable endeavours to provide assistance during their working day.
Common terms apply: Except for clauses 3, 5 and 6, all clauses of these T&C apply to Trials (in addition to this clause 2).
SaaS
Provision of SaaS: MetrixData 360 Inc. will provide the SaaS to the Client in accordance with the Agreement. The SaaS is provided to the Client on a non-exclusive basis and the Clients right to use the SaaS is not transferable. MetrixData 360 Inc. will provide log on access to the Client to enable the Client to access and use the SaaS.
SaaS Hosting and Availability: MetrixData 360 Inc. provides the SaaS bundled with the Hosting. MetrixData 360 Inc.'s commitment to SaaS availability is the Monthly Uptime Commitment, which applies subject to the Exception Factors. Where emergency maintenance is necessary or where unplanned outages occur, this will be notified to the
Client as soon as possible after coming to MetrixData 360 Inc.’s attention. Where MetrixData 360 Inc. does not meet the Monthly Uptime Commitment, and the failure to meet the Monthly Uptime Commitment is not due to any of the Exception Factors:
a Service Credit may apply; and
the Client may submit a Claim to MetrixData 360 Inc.
If MetrixData 360 Inc., following its assessment of the Claim, determines that the Monthly Uptime Commitment was not met in the relevant period (and that this was not due to any Exception Factors), a Service Credit will apply (Service Credits are not available for every SaaS, refer to definition of ‘Service Credit’ in clause 19).
SaaS Availability: The availability of the SaaS is dependent on factors outside of MetrixData 360 Inc.’s control and as such MetrixData 360 Inc. cannot and does not warrant that the SaaS will be continuously available or available without interruption.
Exception Factors: The Exception Factors are:
Planned Maintenance
lack of availability or outages of telecommunications networks (Supplier to provide evidence)
a network or device failure external to MetrixData 360 Inc.’s or its third party provider’s data centers, including at Clients site or between the Clients site and MetrixData 360 Inc.’s or third party’s data centers
issues resulting from the Clients use of infrastructure (including IaaS), software
or services (other than the SaaS) including issues related to dependencies on the Clients Integrated Services and Products
any third party act, omission or circumstance which results in unavailability of the SaaS, whether malicious or not (other than where the third party is a subcontractor engaged by MetrixData 360 Inc.); and
a Force Majeure Event
Security Breach
Without limiting any other legal obligations that MetrixData 360 Inc. may have in the event of a security breach, MetrixData 360 Inc. represents that it has used and will continue to use reasonable endeavours in designing and/or utilizing the SaaS Systems and in operating and managing the SaaS in order to minimize the risk of a Security Breach
In the event of any Security Breach:
MetrixData 360 Inc. will, subject to all applicable laws, notify the Client as soon as practical after MetrixData 360 Inc. becomes aware of the Security Breach
the Client will notify MetrixData 360 Inc. as soon as practical, but no later than 24 hours after the Client becomes aware of the Security Breach
subject to all applicable laws, immediately following notification of a Security Breach under clause 3.4(a) or (b) above, the parties will coordinate with each other to investigate the Security Breach. MetrixData 360 Inc. will cooperate with the Client in the Clients handling of the matter including, without limitation, by assisting with any investigation and providing the Client with physical access to the facilities and operations affected to the extent reasonably practical, facilitating interviews with MetrixData 360 Inc.’s employees and others involved in the matter and making available all relevant records, logs, files, data reporting and other materials required to comply with applicable law, regulation, industry standards or as otherwise reasonably required by Client.
Data
The Client warrants that the Client has the right and authority to deal with the Data in the manner contemplated by the Agreement.
The Client is responsible for:
all Data entry requirements; and
except as expressly provided otherwise in the Agreement, for all aspects of the Client’s access and use of the SaaS; and
managing the Permitted Users in respect of their use of the SaaS and managing any changes to the Permitted Users;
ensuring that Permitted Users keep all login details for the SaaS confidential and do not share their login details; and
ensuring that, in using the SaaS, the Client and all Permitted Users comply with all applicable laws. To the extent permitted by law, MetrixData 360 Inc. accepts no responsibility for ensuring that use of the SaaS will result in the Client complying with applicable laws or enable the Client to comply with applicable laws (including for example and without limitation, laws requiring records to be stored in a particular jurisdiction).
Nothing in the Agreement transfers ownership of the Data to MetrixData 360 Inc. or to any Authorized Partner.
(d) All Data is available to the Client:
for the term of the Agreement, via the SaaS;
on request to MetrixData 360 Inc. at any time during the term of the Agreement and for a period of 1 Month following expiration or termination of the Agreement.
Support: MetrixData 360 Inc. or Authorized Partner will provide assistance in resolving issues in respect of the Clients access or use of the SaaS, in accordance with the Support Schedule.
Common terms apply: Except for clause 2, all clauses of these T&C apply to the SaaS (in addition to this clause 3).
The Client acknowledges that the SaaS is or may be dependent on proper implementation and availability and correct functioning of the Clients Integrated Services and Products.
Neither MetrixData 360 Inc. nor any Authorized Partner has any responsibility or liability to the Client, and in any event no obligation to refund or reduce amounts paid by the Client, for incorrect or unexpected functioning, or failure, of the SaaS where that incorrect or unexpected functioning, or failure, is directly or indirectly due to incorrect or inappropriate implementation or incorrect functioning, or lack of availability of the Clients Integrated Services and Products.
The Client will pay the Relevant Pricing for the SaaS to MetrixData 360 Inc., the Authorized Partner or via the Purchase Location (as applicable) in accordance with the timing agreed in writing between the Client and MetrixData 360 Inc., between the Client and the Authorized Partner or as accepted by the Client at the Purchase Location.
All applicable value added taxes will be charged and payable in addition to the Relevant Pricing.
Subject to clause 5.4, the Client will pay all invoices in full, without setoff, counterclaim or deduction of any kind, on or before the due date.
If the Client wishes to dispute an invoice, it must notify MetrixData 360 Inc. in writing within 14 days of the date of the invoice and provide details of the dispute. The Client may withhold payment of the disputed part of an invoice only and must pay that part (or any amount subsequently agreed or determined to be the correct amount owing) promptly on resolution of the dispute.
Without MetrixData 360 Inc. waiving any other right or remedy it may have, if any amount due is not paid by the Client by the due date, MetrixData 360 Inc. may:
charge the Client interest calculated at 1.5% on the balance of the amount due by the Client from the due date until payment is received in full by MetrixData 360 Inc.; and/or
charge the Client all collection costs reasonably incurred by MetrixData 360 Inc. in collection of the amount outstanding (including solicitor and/or collection agency fees); and/or
suspend supply of the SaaS until the outstanding amount is paid in full. MetrixData 360 Inc. will give 10 Working Days’ notice in writing of its intention to suspend delivery under this clause.
The Relevant Pricing may be changed by MetrixData 360 Inc. on MetrixData 360 Inc. giving at least six weeks’ written notice (by email) to the Client of the new charges that will apply except that where a Fixed Term applies, the new pricing will not apply until expiration of the current Fixed Term.
The Agreement commences (and provision of the SaaS and Support Services commences) when the Client purchases the SaaS and the Agreement will continue:
where there is no Fixed Term, until terminated under clause 6.2 or clause 11
where there is a Fixed Term, for the Fixed Term unless terminated under clause 6.3 or clause 11.
In addition to the parties’ rights of early termination under the Agreement or otherwise at law, where there is no Fixed Term the Agreement may be terminated by the Client at any time:
on written notice to MetrixData 360 Inc., or where the purchase was made from an Authorized Partner on written notice to that Authorized Partner; or
through the termination processes at the Purchase Location, with the termination taking effect at the end of the month in which MetrixData 360 Inc. or Authorized Partner (as applicable) confirms receipt of the Clients termination request.
In addition to the parties’ rights of early termination under the Agreement or otherwise at law, where a Fixed Term applies (including where the Client selects a Fixed Term at the Purchase Location as a Selected Option (where available), the Agreement will continue until expiration of the Fixed Term.
On expiration of the Fixed Term the Agreement will, subject to clause 5.4, automatically continue for further periods each of the duration of the Fixed Term (or such shorter period as may apply following the initial Fixed Term) on the same T&C (unless updated as provided for under clause 1.1(b)) unless at least one month prior to the expiration of the current Fixed Term one party notifies the other party in writing that the Agreement is to terminate on expiry of the current Fixed Term.
Where the GDPR applies, the GDPR & Data Protection Schedule attached to these T&C applies. Where the GDPR does not apply, the GDPR & Data Protection Schedule may not be attached or if it is attached in any event does not apply.
All Intellectual Property in:
the SaaS; and
the software, processes, methodology and know-how used by MetrixData 360 Inc. in its performance of the Agreement
is the property of MetrixData 360 Inc. (or its licensors) and nothing in the Agreement operates to change that ownership.
The Client must not, nor may the Client permit any other person to do any of the following, or attempt to do so:
copy, alter, modify, reverse assemble, reverse compile, reverse engineer or enhance the SaaS Systems; or
permit or enable users other than Permitted Users to access or use the SaaS; or
provide the SaaS to any users through operation of a bureau or like service; or
resell, rent, lease, transfer, sublicense or otherwise transfer rights to use the SaaS; or
use the SaaS in any way that could damage or interfere with the SaaS Systems in any way
use the SaaS otherwise than in the manner in which the SaaS is designed to be used
(g) use the SaaS in any way that could interrupt, damage or otherwise interfere with use of the SaaS by any other Clients
(h) do any act which would or might invalidate or be inconsistent with MetrixData 360 Inc.’s Intellectual Property rights.
The Client must notify MetrixData 360 Inc. of any actual, threatened or suspected infringement of any Intellectual Property right and of any claim by any third party that any use of the SaaS infringes any rights of any other person, as soon as that infringement or claim comes to the Clients notice. The Client must (at MetrixData 360 Inc.’s expense) do all such things as may reasonably be required by MetrixData 360 Inc. to assist MetrixData 360 Inc. in pursuing or defending any proceedings in relation to any such infringement or claim.
The Client indemnifies MetrixData 360 Inc. against any loss, costs, expenses, demands or liability whether direct, indirect or otherwise, and whether arising in contract, tort (including negligence), equity or otherwise, arising out of a claim by a third party alleging infringement of that third party’s Intellectual Property rights if such claim arises from infringement, suspected infringement or alleged infringement due to:
use of the SaaS in a manner or for a purpose or in combination with any other SaaS or product not reasonably contemplated or authorized by MetrixData 360 Inc.; or
a breach by the Client of clause 8.2.
The parties recognise and acknowledge the confidential nature of the Confidential Information.
Neither party may use or disclose any Confidential Information other than:
to its employees, directors or contractors to the extent necessary in the performance of the Agreement; or
with the express prior written consent of the other party; or
to its professional advisers.
Each party warrants to the other that it has authority to enter into and perform and the ability to perform its obligations under the Agreement.
With the exception of the warranties given under clauses 10.1, all warranties, T&C (including without limitation, warranties and conditions as to fitness for purpose and merchantability), whether express or implied by statute, common law or otherwise are excluded to the extent permitted by law.
Any warranties made to the Client under the Agreement extend solely to the Client.
MetrixData 360 Inc. or the Client may terminate the Agreement immediately on written notice to the other party if the other party:
breaches any of its obligations under the Agreement and fails to remedy the breach within 20 days of receiving notice requiring the breach to be remedied, or
ceases business or becomes insolvent or goes into liquidation or has a receiver or statutory manager appointed over its assets or ceases to carry on business or makes any arrangement with its creditors.
On termination of the Agreement:
all amounts due to MetrixData 360 Inc. or relevant Authorized Partner will become immediately due and payable
MetrixData 360 Inc. will cease to provide the SaaS to the Client, and the Client will cease to have any entitlement to use the SaaS
the provisions of the Agreement that are by their nature intended to survive termination will remain in full force.
This limitation does not apply to claims by the Client for bodily injury or damage to real property or tangible personal property where MetrixData 360 Inc. is legally liable for that injury or damage.
MetrixData 360 Inc.’s liability under this Agreement is limited to direct loss only, to the amount paid by the Client in the 12 month period preceding the event giving rise to the claim.
In no event is MetrixData 360 Inc. liable for any indirect loss or for any loss of profits, lost savings, lost revenue, loss of data, business interruption, incidental or special damages, or for any consequential loss.
In the event of any dispute arising between the parties in relation to the Agreement, no party may commence any proceedings relating to the dispute (except where the party seeks urgent interlocutory relief) unless that party has complied with the procedures in this clause 13.
The party initiating the dispute (“the first party”) must provide written notice of the dispute to the other party (“the other party”) and nominate in that notice the first party’s representative for the negotiations. The other party must within fourteen days of receipt of the notice, give written notice to the first party naming its representative for the negotiations ("Other Party's Notice"). Each nominated representative will have authority to settle or resolve the dispute. The parties will co-operate with each other and endeavour to resolve the dispute through discussion and negotiation.
If the dispute is not resolved within one month following the date of the Other Party's Notice (or such longer period agreed by the parties in writing), either party may utilize any other legal remedies available to it in seeking to resolve the dispute.
The Client acknowledges that where it is acquiring the SaaS for the purposes of a business, to the extent permitted by the relevant legislation, any statutory consumer guarantees or legislation that are intended to apply to non-business consumers only will not apply.
MetrixData 360 Inc. may suspend its obligations to perform under the Agreement if it is unable to perform as a direct result of a Force Majeure Event. Any such suspension of performance must be limited to the period during which the Force Majeure Event continues.
Where MetrixData 360 Inc.’s obligations have been suspended under clause 15.1 for a period of 90 days or more, the Client may immediately terminate the Agreement by giving notice in writing to MetrixData 360 Inc..
Entire agreement: The Agreement constitutes the complete and exclusive statement of the agreement between the parties, superseding all proposals or prior agreements, oral or written, and all other communications between the parties relating to the subject matter of the Agreement.
Waiver: No exercise or failure to exercise or delay in exercising any right or remedy by a party will constitute a waiver by that party of that or any other right or remedy available to it.
Partial invalidity: If any provision of the Agreement or its application to any party or circumstance is or becomes invalid or unenforceable to any extent, the remainder of the Agreement and its application will not be affected and will remain enforceable to the greatest extent permitted by law.
Independent contractor: MetrixData 360 Inc. is an independent contractor to the Client and is in all respects independent of the Client. Nothing in the Agreement constitutes either party a partner, agent, employee or joint venture of the other.
Suspension: MetrixData 360 Inc. may suspend performance of its obligations under the Agreement for so long as it is unable to perform for reasons outside of its control.
Assignment: The Client is not permitted to assign its rights under the Agreement.
Notices from MetrixData 360 Inc. to the Client under the Agreement will be sent to the Client at the Clients contact details specified in the Client Information. The Client may notify MetrixData 360 Inc. of a change to the contact details specified in the Client Information, on seven days’ notice in writing to MetrixData 360 Inc.. Notices from the Client to MetrixData 360 Inc. under the Agreement must be sent to MetrixData 360 Inc. at MetrixData 360 Inc.’s relevant office, details included on MetrixData 360 Inc.’s website.
Notices sent by email will be deemed received on sending, provided that the sender does not receive an automatic delivery failure notification. Notices sent by post will be deemed received:
on the third day following posting if sent and received locally (not internationally); and
on the tenth day following posting if posted internationally.
Governing Law and Jurisdiction
The Agreement is governed by the laws of England and Wales. The parties hereby submit to the non-exclusive jurisdiction of the courts of England and Wales.
Definitions: In these Terms & Conditions
is in the public domain without any breach of the Agreement
on receipt by the other party is already known by that party
is at any time after the date of receipt by the other party, received in good faith by that party from a third party
(d)
required by law to be disclosed by the other party
to MetrixData 360 Inc. or Authorized Partner in the course of agreeing to purchase (or agreeing to a Trial) of the SaaS
at a Purchase Location in the course of agreeing to purchase (or agreeing to a Trial) the SaaS
the fixed term for supply of the SaaS, agreed in writing between MetrixData 360 Inc. or relevant Authorized Partner and the Client; or
the fixed term selected by the Client in the Selected Options
employees, directors or contractors of the Client; and
where the Selected Options include options for selecting the number of permitted users, not more than the number of employees, directors or contractors selected
includes Standard Hosting or Selected Hosting as applicable
where Selected Options apply, means or includes (as applicable) the pricing for the Selected Options
reference to the plural includes reference to the singular, and vice versa
headings inserted for convenience of reference only and do not affect the interpretation of the Agreement.
SUPPORT SERVICES SCHEDULE
This Support Schedule forms part of the Agreement that includes the SaaS End User Terms.
Defined terms in the SaaS End User Terms have the same meanings when used in this Support Schedule. Additional defined terms used in this Support Schedule have the meanings given to them in clause 6 of this schedule.
MetrixData 360 Inc. will provide Support Services to the Client and will respond to Requests for Assistance in respect of the SaaS and/or Hosting, in accordance with the T&C of this Support Schedule.
The term of this Support Schedule is the same as the term of the Agreement.
MetrixData 360 Inc. will provide Support Services to the Client and will respond to Requests for Assistance in respect of the SaaS and the Hosting during the Support Hours on receipt of a Service Request from the Client.
The Client will make Service Requests using the procedure specified in:
part 2 of appendix 1, for Clients on Basic Support
part 2 of appendix 2 for Clients on Premium Support.
The Support Services do not include services in respect of any issues arising with access or use of the SaaS that in MetrixData 360 Inc.’s reasonable opinion are due to:
an Exception Factor; or
the Clients or any third party’s services or products including where the SaaS is dependent on or integrated in any way with those services or products (including the Clients Integrated Products and Services).
MetrixData 360 Inc. may, at its sole discretion, agree to provide assistance with resolving issues of the type described in this clause 3.3 and if and when it does so, MetrixData 360 Inc. accepts no responsibility for resolving the issue. MetrixData 360 Inc. may charge the Client at its standard rates for undertaking any work of the type described in this clause 3.3 regardless of whether or not the issue is resolved by that work.
MetrixData 360 Inc. will be available to provide Support Services and to respond to Requests for Assistance:
during the applicable hours specified in:
part 1 of appendix 1, for Clients on Basic Support
part 1 of appendix 2, for Clients on Premium Support.
if part 1 of appendix 1 or 2 (as applicable) does not specify the support hours, the support hours will be as notified by MetrixData 360 Inc. or Authorized Partner (as applicable) or notified at the Purchase Location, prior to purchase of the SaaS.
If no hours are specified or notified as described above in this clause, MetrixData 360 Inc. will use reasonable endeavours to provide the Support Services and to respond to Requests for Assistance during MetrixData 360 Inc.’s usual working day.
The Support Services are included in the amounts payable under the SaaS End User Terms. MetrixData 360 Inc. may charge the Client, at its standard rates, for any Additional Services. The current standard rates are available on request from MetrixData 360 Inc..
All invoices issued by MetrixData 360 Inc. for Additional Services are due for payment by the Client 14 days following the date of the invoice.
Subject to clause 4.4, the Client will pay all invoices for Additional Services in full, without setoff, counterclaim or deduction of any kind, on or before the due date.
If the Client wishes to dispute an invoice for Additional Services, it must notify MetrixData 360 Inc. in writing within 14 days of the date of the invoice and provide details of the dispute. The Client may withhold payment of the disputed part of an invoice only and must pay that part (or any amount subsequently agreed or determined to be the correct amount owing) promptly on resolution of the dispute.
Without MetrixData 360 Inc. waiving any other right or remedy it may have, if any amount due is not paid by the Client by the due date, MetrixData 360 Inc. may:
charge the Client interest calculated at 1.5% on the balance of the amount due by the Client from the due date until payment is received in full by MetrixData 360 Inc.; and/or
charge the Client all collection costs reasonably incurred by MetrixData 360 Inc. in collection of the amount outstanding (including solicitor and/or collection agency fees); and/or
suspend delivery of further Support Services until the outstanding amount is paid in full. MetrixData 360 Inc. will give 10 days’ notice in writing of its intention to suspend delivery under this clause.
5 Taxes
5.1 In addition to the amounts due under clause 4, the Client will pay MetrixData 360 Inc. amounts equal to any applicable government taxes or duties however designated, based on the Agreement (or the Support Services or Additional Services provided under it), paid or payable by MetrixData 360 Inc. in respect of the foregoing, exclusive however of taxes based on MetrixData 360 Inc.’s income.
Unless the context otherwise requires, in this Support Schedule the following expressions have the following meanings:
services provided in response to any Request for Assistance
services that MetrixData 360 Inc. agrees to provide in respect of Excluded Services
APPENDIX 1
SUPPORT SERVICES – BASIC SUPPORT
Basic Support: Support Hours Not Specified
Basic Support - Client to make Service Request by:
Email: |
Service overview | The service desk provides a point of contact for receiving and managing all Service Requests. This is a second level service desk service. |
Scope of service | MetrixData 360 Inc. will provide the Service Desk, providing the following in respect of Service Requests: |
recording the Incident Request or Request for Assistance
initial support
tracking; and
keeping the Client updated on the progress.
Requests for Assistance | Given that Requests for Assistance are separately chargeable, MetrixData 360 Inc. will notify the Client in writing when the Client issues a Service Request that is a Request for Assistance. MetrixData 360 Inc. will provide services to the Client in response to Requests for Assistance only after providing the written notification above and following receipt of the Clients confirmation or request to proceed (given in writing or confirmed by MetrixData 360 Inc. in writing). |
Clients Responsibilities | The Client will communicate all Service Requests clearly and completely in an appropriate and effective manner and provide any additional information reasonably required by MetrixData 360 Inc.. |
Response to Service Requests
Basic Support – MetrixData 360 Inc. will use reasonable endeavours to resolve Incidents and address Requests for Service reported by the Client.
GDPR & DATA PROTECTION SCHEDULE
Under the Agreement, the Client engages or may engage MetrixData 360 Inc. to Process Personal Data on behalf of the Client.
To the extent of that Processing of Personal Data and for the purposes of the Agreement, the Client is a ‘Controller’ and MetrixData 360 Inc. is a ‘Processor’ for the purposes of the GDPR. As such, Article 28 of the GDPR requires that the details in this schedule are included in the contract between the Client and MetrixData 360 Inc.
The parties must set out the subject matter and duration of the Processing, the nature and purpose of the Processing, the type of Personal Data and categories of data subjects – see appendix 1 to this schedule. If MetrixData 360 Inc. determines the purposes and means of Processing, MetrixData 360 Inc. is considered a ‘Controller’ in respect of that Processing in which case MetrixData 360 Inc. needs to consider and address the different and additional provisions of the GDPR that apply.
The terms used in this schedule have the meanings given to them in clause 13 of this schedule. Capitalized terms used in this schedule that are not defined in clause 13 of this schedule have the meaning given to them in the GDPR or in the Agreement.
Headings used in this schedule are for ease of reference only and are not intended to influence the interpretation of a clause.
MetrixData 360 Inc. will:
Instructions from Client: in providing Services under this Agreement, Process Personal Data only on the Clients documented instructions (as provided in clause 2 and in appendix 1 to this schedule or otherwise in writing) unless required to do so by Member or Union State law which applies to MetrixData 360 Inc. in which case MetrixData 360 Inc. will inform the Client of that legal requirement before Processing unless MetrixData 360 Inc. is prohibited from informing the Client by that law
Confidentiality: ensure that MetrixData 360 Inc.’s personnel who are authorised to Process the Personal Data have obligations of confidentiality to MetrixData 360 Inc. (including as required in clause 3 below) in respect of the Personal Data or are under an appropriate statutory obligation of confidentiality
Security: comply with the security obligations in clause 4 below
Sub-processors: comply with the provisions relating to Sub-processors in clause 5 below
(e)
Data subjects’ rights: provide assistance to the Client with responding to data subjects’ rights in accordance with clause 6 below
Assist Client: comply with its obligations to assist the Client in relation to security of Personal Data and data protection impact assessments and prior consultation in accordance with clause 7 below
Deleting and retuning data: after the provision of Services related to Processing of Personal Data has ended, at the choice of the Client either delete or return to the Client all of that Personal Data and delete existing copies unless Member or Union State law requires storage of Personal Data in accordance with clause 8 below; and
Compliance and audits: make available to the Client all information necessary to demonstrate compliance with Article 28 of the GDPR and allow for and contribute to audits including inspections conducted by the Client or another auditor mandated from time to time, in accordance with clause 9 below. MetrixData 360 Inc. will immediately inform the Client if, in its opinion, an instruction received from the Client under this clause 1.1(h), infringes the GDPR or other Member or Union State data protection provisions.
The Client instructs MetrixData 360 Inc. (and authorises MetrixData 360 Inc. to instruct each Subprocessor) to:
Process Personal Data; and
in particular, transfer Personal Data to any country or territory,
as reasonably necessary for the provision of the Services and consistent with and in compliance with the Agreement.
The Client warrants and represents that it is and will at all relevant times remain duly and effectively authorised to give the instruction set out in clause 2.1 on behalf of the Client.
MetrixData 360 Inc. will take reasonable steps to ensure the reliability of its employees, agents or contractors who may have access to Personal Data, ensuring in each case that access is limited to those individuals who need to know or need to access the relevant Personal Data, as necessary for the purposes of the Agreement, and to comply with applicable laws in the context of that individual's duties to MetrixData 360 Inc., ensuring that all such individuals are subject to confidentiality undertakings or professional or statutory obligations of confidentiality.
Subject to clause 4.2 below, MetrixData 360 Inc. will implement appropriate technical and organisational measures to ensure a level of security appropriate to the risk, including amongst other things as appropriate:
the pseudonymisation and encryption of Personal Data
the ability to ensure the ongoing confidentiality, integrity, availability and resilience of processing systems and services
the ability to restore the availability and access to Personal Data in a timely manner in the event of a physical or technical incident
a process for regularly testing, assessing, and evaluating the effectiveness of technical and organisational measures for ensuring the security of the Processing.
In assessing the appropriate level of security for clause 4.1 above, MetrixData 360 Inc. will take account in particular of the risks of a Personal Data Breach that are presented by the Processing to be undertaken under the Agreement.
MetrixData 360 Inc. will in relation to Personal Data:
implement and maintain appropriate information security to protect Personal Data against:
a Personal Data Breach
all other unauthorized or unlawful forms of Processing; and
any breach of MetrixData 360 Inc.’s information security obligations in this schedule. MetrixData 360 Inc. will (and will ensure that its Sub-processors) provide full cooperation and assistance to the Client in ensuring that the individuals´ rights under the GDPR or applicable Member State laws are timely and appropriately addressed for the fulfilment of the Clients obligation to respond without undue delay to requests by such individuals as required by Data Privacy Laws, including the rights of subject access, rectification, erasure, and portability, and the right to restrict or object to certain Processing;
take reasonable steps to inform its staff, and any other person acting under its supervision, of the responsibilities of any Data Privacy Laws due to the incidental access to Personal Data and ensure the reliability of its staff and any other person acting under its supervision who may come into contact with, or otherwise have access to and Process, such Personal Data.
The Client authorises MetrixData 360 Inc. to appoint Subprocessors (and permits each Subprocessor appointed in accordance with this clause 5 to appoint Subprocessors) in accordance with this clause 5 and any restrictions in the Agreement.
MetrixData 360 Inc. will give the Client prior written notice of the appointment of any new Subprocessor, including full details of the Processing to be undertaken by the Subprocessor. If, within two weeks of receipt of that notice, the Client notifies MetrixData 360 Inc. in writing of any objections (on reasonable grounds) to the proposed appointment, MetrixData 360 Inc. will not appoint (nor disclose any Personal Data to) the proposed Subprocessor unless and until it obtains the prior written consent of the Client.
With respect to each Subprocessor, MetrixData 360 Inc. will
enter into an agreement with the Subprocessor which includes the same data protection obligations as set out in this schedule (and Appendix 1) and in particular includes sufficient guarantees to implement appropriate technical and organisational measures in such a manner that the processing will meet the requirements of the GDPR. If the Subprocessor fails to fulfil its data protection obligations, MetrixData 360 Inc. will remain fully liable to the Client for the performance of that Subprocessor’s obligations
if the Processing by the Subprocessor will involve a Restricted Transfer, ensure that the Standard Contractual Clauses (in Appendix 2 to this schedule) are at all relevant times incorporated into the agreement between MetrixData 360 Inc. and the Subprocessor; and
provide to the Client for review, copies of MetrixData 360 Inc.’s agreements with Subprocessors (confidential commercial information that is not relevant to the requirements of this schedule may be blacked out) as the Client may request from time to time.
Appendix 1 to this schedule sets out certain information regarding MetrixData 360 Inc.’s Processing of Personal Data, as required by article 28(3) of the GDPR. The Client may make reasonable amendments to Appendix 1 by written notice to MetrixData 360 Inc. from time to time as the Client reasonably considers necessary to meet those requirements.
Taking into account the nature of the Processing, MetrixData 360 Inc. will, by implementing appropriate technical and organisational measures to the extent described in clause 4, assist the Client to respond to requests to exercise Data Subject rights under the Data Protection Laws.
MetrixData 360 Inc. will:
promptly notify the Client if MetrixData 360 Inc. or any Subprocessor receives a request from a Data Subject under any Data Protection Law in respect of Personal Data; and
ensure that MetrixData 360 Inc. or relevant Subprocessor does not respond to that request except on the documented instructions of the Client or as required by Applicable Laws to which they are subject, in which case MetrixData 360 Inc. will to the extent permitted by Applicable Laws inform the Client of that legal requirement before MetrixData 360 Inc. or relevant Subprocessor responds to the request.
Assist Client with Security of Processing:
MetrixData 360 Inc. will assist the Client in respect of the Clients obligations to implement appropriate technical and organisational measures to ensure a level of security appropriate to the risk, by complying with MetrixData 360 Inc.’s obligations under clause 4 of this schedule.
Assist Client with notifications of Personal Data Breach
MetrixData 360 Inc. will notify the Client without undue delay if MetrixData 360 Inc. or any Subprocessor becomes aware of a Personal Data Breach, providing the Client with sufficient information to allow the Client to meet any obligations to report the Personal Data Breach to the relevant Supervisory Authority under the Data Protection Laws (noting that the Client is required, where feasible, to notify applicable Personal Data breaches to the relevant Supervisory Authority within 72 hours after having become aware of the breach).
MetrixData 360 Inc. will co-operate with the Client and take such reasonable commercial steps as are directed by the Client to assist in the investigation, mitigation and remediation of each such Personal Data Breach.
Assist Client with communication of Personal Data breach to Data Subject
Where a Personal Data Breach is likely to result in a high risk to the rights and freedoms of natural persons:
such that the Client is required to communicate the Personal Data Breach to the Data Subject (including where, despite the conditions referenced in clause 7.3(a)(ii) below being met, the Supervisory Authority has required the Client to communicate the Personal Data Breach to the Data Subject), MetrixData 360 Inc. will assist the Client in doing so by providing all relevant information as may be reasonably required by the Client
but despite that high risk, the Client is not required to communicate the Personal Data Breach to the Data Subject due to certain conditions being met (such as that the Personal Data is encrypted and so unintelligible to any person not authorised to access it), MetrixData 360 Inc. will assist the Client by providing all relevant information as may be reasonably required by the Client.
Assist Client with Data Protection Impact Assessments
MetrixData 360 Inc. will provide reasonable assistance to the Client with any data protection impact assessments which the Client reasonably considers to be required of the Client by Article 35 of the GDPR or equivalent provisions of related Data Protection Laws. MetrixData 360 Inc.’s obligations under this clause 7.4(a) are solely in relation to Processing of Personal Data by MetrixData 360 Inc. and taking into account the nature of the Processing and information available to MetrixData 360 Inc.
Assist Client with Prior Consultation with Supervisory Authority
MetrixData 360 Inc. will provide reasonable assistance to the Client with prior consultations with Supervising Authorities or other competent data privacy authorities, which the Client reasonably considers to be required of the Client by Article 36 of the GDPR or equivalent provisions of related Data Protection Laws. MetrixData 360 Inc.’s obligations under this clause 7.5(a) are solely in relation to Processing of Personal Data by MetrixData 360 Inc. and taking into account the nature of the Processing and information available to MetrixData 360 Inc..
Deletion or return of Personal Data
Subject to clauses 8.2 and 8.3, MetrixData 360 Inc. will, within 1 Month of the date of expiration or termination of Services involving the Processing of Personal Data (the "End of Processing Date"), delete and procure the deletion of all copies of the Personal Data.
Subject to clause 8.3, the Client may in its absolute discretion by written notice to MetrixData 360 Inc. within 1 Month of the End of Processing Date require MetrixData 360 Inc. to:
return a complete copy of all Personal Data to the Client by secure file transfer in such format as is reasonably notified by the Client to MetrixData 360 Inc.; and
delete and procure the deletion of all other copies of Personal Data Processed by MetrixData 360 Inc. MetrixData 360 Inc. will comply with any such written request within 1 Month of the End of Processing Date.
MetrixData 360 Inc. may retain Personal Data to the extent required by Applicable Laws and only to the extent and for such period as required by Applicable Laws and always provided that MetrixData 360 Inc. will:
ensure the confidentiality of all such Personal Data
ensure that such Personal Data is only processed as necessary for the purpose(s) specified in the Applicable Laws requiring its storage and for no other purpose.
MetrixData 360 Inc. will provide written certification to the Client that it has fully complied with this clause 8 within 1 Month following the End of Processing Date.
Subject to clauses 9.2 to 9.4, MetrixData 360 Inc. will make available to the Client on request all information necessary to demonstrate compliance with this schedule, and will allow for and contribute to audits, including inspections, by the Client or an auditor mandated by the Client in relation to the Processing of Personal Data by MetrixData 360 Inc.
Information and audit rights of the Client only arise under clause 9.1 to the extent that the Agreement does not otherwise give them information and audit rights meeting the relevant requirements of Data Protection Laws (including, where applicable, article 28(3)(h) of the GDPR).
MetrixData 360 Inc. may, on reasonable grounds, object to the proposed auditor in which case the Client will propose an alternate auditor.
The Client will give MetrixData 360 Inc. reasonable notice of any audit or inspection to be conducted under clause 9.1 and will make (and ensure that its auditor makes) reasonable endeavours to avoid causing any damage, injury or disruption to the Supplier's premises equipment, personnel and business while its personnel are on those premises in the course of such an audit or inspection. MetrixData 360 Inc. need not give access to its premises for the purposes of such an audit or inspection for the purposes of more than one audit or inspection in any calendar year, except for any additional audits or inspections which:
the Client reasonably considers necessary because of genuine concerns as to MetrixData 360 Inc.'s compliance with this schedule; or
the Client is required or requested to carry out by Data Protection Law, a Supervisory Authority or any similar regulatory authority responsible for the enforcement of Data Protection Laws in any country or territory,
where the Client has identified its concerns or the relevant requirement or request in its notice to MetrixData 360 Inc. of the audit or inspection.
Subject to clause 10.3, where the Services involve a ‘Restricted Transfer’, the Client (as "data exporter") and MetrixData 360 Inc. (as "data importer") each agrees to the Standard Contractual Clauses in respect of that Restricted Transfer (see definition but a ‘Restricted Transfer’ in essence means transferring Personal Data out of the European Union).
The Standard Contractual Clauses will come into effect under clause 10.1 on the later of:
the data exporter becoming a party to them
the data importer becoming a party to them; and
commencement of the relevant Restricted Transfer.
There is no requirement for MetrixData 360 Inc. and Client to agree to the Standard Contractual Clauses (or to include the Standard Contractual Clauses in the Agreement) where the transfer of Personal Data is to an Approved Jurisdiction.
Nothing in this schedule reduces MetrixData 360 Inc.'s obligations under the Agreement in relation to the protection of Personal Data or permits MetrixData 360 Inc. to Process (or permit the Processing of) Personal Data in a manner which is prohibited by the Agreement. In the event of any conflict or inconsistency between this schedule and the Standard Contractual Clauses, the Standard Contractual Clauses will prevail.
Subject to clause 11.1, in the event of inconsistencies between the provisions of this schedule and the Agreement, the provisions of this schedule will prevail.
Changes in Data Protection Laws
The Client may by at least 30 calendar days' written notice to MetrixData 360 Inc.:
vary the Standard Contractual Clauses, as they apply to Restricted Transfers which are subject to a particular Data Protection Law, as required as a result of any change in, or decision of a competent authority under, that Data Protection Law,
to allow those Restricted Transfers to be made (or continue to be made) without breach of that Data Protection Law; and
propose any other variations to this schedule which the Client reasonably considers to be necessary to address the requirements of any Data Protection Law.
If the Client gives notice under clause 12.1(a):
MetrixData 360 Inc. will promptly co-operate (and require affected Subprocessors to
promptly co-operate) to ensure that equivalent variations are made to the agreements made under clause 5.3; and
the Client will not unreasonably withhold or delay agreement to any consequential variations to this schedule proposed by MetrixData 360 Inc. to protect MetrixData 360 Inc. against additional risks associated with the variations made under this clause 12.2.
If the Client gives notice under clause 12.1(b), the parties will promptly discuss the proposed variations and negotiate in good faith with a view to agreeing and implementing those or alternative variations designed to address the requirements identified in the Clients notice as soon as is reasonably practicable.
In this schedule:
“Approved Jurisdiction” means a country (or territory or specified sector within it) or an international organisation which the Commission has decided, under Article 45(3) of the GDPR, ensures an adequate level of data protection;
“Contracted Processor” means MetrixData 360 Inc. or a Subprocessor
"Data Protection Laws" means EU Data Protection Laws and, to the extent applicable, the data protection or privacy laws of any other country;
"Data Subject" means an identified or identifiable natural person, or any updated definition of this term from time to time in the GDPR;
"EEA" means the European Economic Area;
"EU Data Protection Laws" means EU Directive 95/46/EC, as transposed into domestic legislation of each Member State and as amended, replaced or superseded from time to time, including by the GDPR and laws implementing or supplementing the GDPR;
"GDPR" means EU General Data Protection Regulation 2016/679;
“Information Security Obligations” means commercially reasonable and appropriate physical, technical and organisational security measures (determined with regard to risks associated with the Processing of Personal Data as part of the Services), including the measures set out in the Agreement and in particular in Appendix 2 to this schedule (where applicable).
"Personal Data" means any information related to an identified or identifiable natural person (‘data subject’); an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural, or social identity of that natural person, or any updated definition of ‘Personal Data’ from time to time in the GDPR;
"Personal Data Breach" means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, personal data transmitted, stored or otherwise processed, or any updated definition of ‘Personal Data Breach’ from time to time in the GDPR;
“Processing” means any operation or set of operations which is performed on Personal Data or on sets of Personal Data, whether or not by automated means, such as collection, recording, organisation, structuring, storage, adaption or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction, and ‘Process’ has a corresponding meaning;
"Restricted Transfer" means transferring Personal Data outside of the European Union, being:
a transfer of Personal Data from the Client to MetrixData 360 Inc. or to a Subprocessor; or an onward transfer of Personal Data from a Contracted Processor to a Contracted Processor, or between two establishments of a Contracted Processor,
in each case, where such transfer means would be prohibited by Data Protection Laws (or by the terms of data transfer agreements put in place to address the data transfer restrictions of Data Protection Laws), in the absence of the Standard Contractual Clauses;
"Services" means the services and other activities to be supplied to or carried out by or on behalf of MetrixData 360 Inc. for the Client under the Agreement;
"Subprocessor" means any person (including any third party, but excluding an employee of MetrixData 360 Inc. or any of its sub-contractors) appointed by or on behalf of MetrixData 360 Inc. to Process Personal
Data on behalf of the Client in connection with the Agreement;
“Standard Contractual Clauses” means the clauses in Appendix 2 to this schedule;
The terms "Member State", “Union State”, "Supervisory Authority" have the meaning given to those
terms in the GDPR, and corresponding terms have corresponding meanings.
The word "includes" means ‘includes without limitation’, and “including” has a corresponding
meaning.
APPENDIX 1 TO GDPR SCHEDULE DETAILS OF PROCESSING OF PERSONAL DATA
This Appendix 1 includes certain details of the Processing of Personal Data as required by Article 28(3)
GDPR.
METRIXDATA 360 INC. company information can be found here https://metrixdata360.com. This privacy notice is issued on behalf of the Metrixdata 360 so when we mention “SLIM360”, “SLIM”, "we", "us" or "our" in this privacy policy, we are referring to MetrixData 360. MetrixData 360 is responsible for processing your data.
Contact details:
MetrixData 360 Inc.
Attn: Data Protection Officer 10-265 Hanlon Creek Blvd. Guelph ON N1C 0A1
This privacy policy aims to give you information on how the software suite “SLIM360” and the
company METRIXDATA 360 INC. collects and processes your personal data through your use of
METRIXDATA 360 INC.’s services, including its websites and related subdomains, and professional and support services (collectively the “Services”).
The Services are not intended for children and we do not knowingly collect data related to children.
It is important that you read this privacy policy together with any other privacy notice or fair processing notice we may provide on specific occasions when we are collecting or processing personal data about you so that you are fully aware of how and why we are using your personal data. Unless otherwise directed by applicable law, by using our Services, you understand that we will collect and process your information as described in this privacy policy. This privacy notice supplements the other notices and is not intended to override them.
If you or your organization has an individual agreement with us, that agreement may have privacy terms that also apply to the information you provide to us under that agreement. Please review the terms in that agreement because they may be different or more restrictive than the terms in this privacy policy.
We have set out below, in a table format, a description of all the ways we will use your personal data, and which of the legal bases we rely on to do so. We have also identified what our legitimate interests are where appropriate.
Note that we may process your personal data for more than one lawful ground depending on the specific purpose for which we are using your data. Please contact us if you need details about the specific legal ground, we are relying on to process your personal data where more than one ground has been set out in the table below.
Purpose/Activity | Type of data | Lawful basis for processing including basis of legitimate interest |
To register you as a new Client |
| Performance of a contract with you |
To process and deliver your order including:
|
| (a) Performance of a contract with you (b) Necessary for our legitimate interests (to recover debts due to us) |
To manage our relationship with you which will include:
|
|
|
To enable you to partake in a prize draw, competition or complete a survey |
|
|
To administer and protect our business and the Services (including troubleshooting, data analysis, testing, system maintenance, support, reporting and hosting of data) |
|
|
To deliver relevant content and advertisements to you and measure or understand the effectiveness of the advertising we serve to you |
| Necessary for our legitimate interests (to study how Clients use our products/services, to develop them, to grow our business and to inform our marketing strategy) |
To use data analytics to improve our website, products/services, marketing, Client relationships and experiences |
| Necessary for our legitimate interests (to define types of Clients for our products and services, to keep our Services updated and relevant, to develop our business and to inform our marketing strategy) |
To make suggestions and recommendations to you about goods or services that may be of interest to you |
| Necessary for our legitimate interests (to develop our products/services and grow our business) |
To process your employment application. |
| Necessary for our legitimate interests (to develop our products/services and grow our business) |
To provide you software, including the SLIM360 suite of software and Saas ; and professional and support services, including implementation and configuration. |
(f) Technical | Performance of a contract with you. This is part of our Software value add features for the Client |
To fix problems you may have with our products, including answering support questions and resolving disputes |
(f) Technical | Performance of a contract with you |
We may collect, use, store and transfer different kinds of personal data about you which we have grouped together follows:
We also collect, use and share Aggregated Data such as statistical or demographic data for any purpose. Aggregated Data may be derived from your personal data but is not considered personal data in law as this data does not directly or indirectly reveal your identity. For example, we may aggregate your Usage Data to calculate the percentage of users accessing a specific website feature. However, if we combine or connect Aggregated Data with your personal data so that it can directly or indirectly identify you, we treat the combined data as personal data which will be used in accordance with this privacy notice.
We do not collect any Special Categories of Personal Data about you (this includes details about your race or ethnicity, religious or philosophical beliefs, sex life, sexual orientation, political opinions, trade union membership, information about your health and genetic and biometric data). Nor do we collect any information about criminal convictions and offenses without your specific consent and under a separate agreement.
The obligations and rights of the Client are set out in this Agreement and this schedule.
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