Terms of Service - Business
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TERMS OF SERVICE


This Agreement was last updated on 1 March 2024. It is effective as of the Effective Date set out in the Services Agreement or as below.

The Parties set out in the Services Agreement agree as follows:

1. INTERPRETATION

The interpretation and construction of this Agreement shall be subject to the following rules, except where the context makes it clear that a rule is not intended to apply:

  1. reference to:
    1. legislation (including subordinate legislation) is to that legislation as amended, re-enacted or replaced, and includes any subordinate legislation issued under it;
    2. a document or agreement (including this Agreement), or a provision of a document or agreement, is to that document, agreement or provision as amended, supplemented, replaced or novated from time to time;
    3. a party to this Agreement or to any other document or agreement includes a permitted substitute or a permitted assign of that party;
    4. a clause is to the relevant clause of this Agreement (unless the context otherwise requires); and
    5. a person or entity includes any type of entity or body of persons, whether or not it is incorporated or has a separate legal identity, and any executor, administrator or successor in law of the person;
  2. a singular word includes the plural, and vice versa;
  3. a word which suggests one gender includes the other genders;
  4. general words are not to be given a restrictive meaning because they are followed by particular examples, and any words introduced by the terms "including", "include", "in particular" or any similar expression will be construed as illustrative and the words following any of those terms will not limit the sense of the words preceding those terms;
  5. the headings in this Agreement are for reference purposes only and shall not affect the interpretation or construction of this Agreement;
  6. in the event of conflict, the provisions of this Agreement are to be read in the following order of precedence in relation to that conflict:
    1. the Services Agreement and
    2. clauses 1 to 18 (inclusive) of these Terms of Service; and
    3. the relevant Schedule(s) and
    4. any document incorporated by reference and any of the abovementioned.
    The document higher in the order of precedence will prevail to resolve the conflict.
2.DEFINITIONS

“Affiliate” means, in relation to a Party, any other entity which directly or indirectly Controls, is Controlled by, or is under direct or indirect common Control with, that Party from time to time;

“Agreement” means the Services Agreement, any Schedule or any other document executed by the Parties and these Terms of Service which together form the legal contract entered into by the Parties;

“App” means the mobile application forming part of the Deliverables inclusive of functionalities and features as specified in the Services Agreement, for iOS and Android and in the English language (unless otherwise specified in the Services Agreement) which is developed, owned and managed by the Supplier, accessible via the use of a VIP Key (or other access method as agreed by the Parties and/or specified in the Services Agreement) and is the vehicle for redemption of Offers and any Client Offers and/or purchases via the App (as applicable) across the Territory by the App Users during the Promotion Period;

“App Delivery Date” is the date set out in the Services Agreement;

“App Users” means the specified group of persons who are to use the Services and/or Deliverables as set out in the Services Agreement and/or any Schedule;

“Charges” means the charges for additional services or deliverables as set out in the Services Agreement or otherwise agreed between the Parties in writing;

“Client” means the person or entity identified as the “Client” on the Services Agreement;

“Client Data” means the data referred to in clause 14 of this Agreement;

“Client IP” means any Intellectual Property Rights owned or licensed by the Client;

“Client Offers” means any offers sourced either by the Client, whereby the Client and the said merchant has entered into a separate contract for offers to be featured on the App, or sourced by the Supplier from merchants identified to have been supplied by or affiliated with the Client, whereby the Supplier and the said merchant has entered into a separate contract for offers to be featured on the App, as set out in the Services Agreement and/or any Schedule;

“Co-branded App” means a customized native co-branded App featuring both Supplier and Client branding and/or Supplier IP and Client IP in either the name of the App published in the relevant mobile application stores and/or the content of the App.

"Confidential Information" means, in relation to either Party, any information about, or know how of, that party (including, in the case of the Client, about (including information relating to its facilities, premises, systems, security, procedures, products, business strategy (including the existence of, the terms of and its position in any dispute in relation to this Agreement), employees, officers, contractors, agents, customers and/or contacts, and any other information) that is marked confidential or that the recipient ought reasonably to have known was confidential, and is imparted to the other party or any of its personnel pursuant to this Agreement (including any information supplied or obtained during any audit). Confidential Information shall exclude information that:

  1. is or comes into the public domain without breach of any confidentiality obligation under this Agreement;
  2. is disclosed by a third party (except where such third party discloses such information in breach of obligations of confidence), or
  3. is independently developed by a Party without recourse to the Confidential Information of the other;
“Contract Period” means the duration of this Agreement commencing from the Effective Date and ending at the end of the Promotion Period;

“Control” means:

  1. the ownership or control (directly or indirectly) of more than fifty percent (50%) of the fully diluted voting share capital of the relevant undertaking; and/or
  2. the ability to direct the casting of more than fifty percent (50%) of the fully diluted votes exercisable at general meetings of the relevant undertakings on all, or substantially all, matters; and/or
  3. the right to appoint or remove directors of the relevant undertaking holding a majority of the voting rights at meetings of the board of directors on all, or substantially all, matters, and “Controls” and “Controlled” shall be interpreted accordingly. “Cuckoo App” means a digital solution providing all the features and functionalities of an App (which may be co-branded or white label) or other deliverable (as specified in the Services Agreement) which is embedded into the Client’s mobile application (identified in the Services Agreement and/or any Schedule) by a single screen web application integrated via the Supplier’s software development kit or any other methodology agreed by the Parties and which is the vehicle for redemption of Offers and any Client Offers and/or purchases via the Cuckoo App (as applicable) across the Territory by the App Users during the Promotion Period.

“Data Protection Legislation” means all generally acknowledged international data security principles and all applicable laws and regulations relating to the processing of personal data and privacy (and any subsequent amendment, re-enactment, consolidation or replacement thereof or implementing legislation) and all other applicable laws relating to the processing of personal data and privacy in effect in any relevant territory(ies) from time to time, including the General Data Protection Regulation ((EU) 2016/679), EU Data Protection Directive 95/46/EC, the Directive on Privacy and Electronic Communications 2002/58/EC, the Data Protection Act 1998 or 2018 (UK), the Privacy and Electronic Communications (EC Directive) Regulations 2003 (SI 2003/2426), the Regulation of Investigatory Powers Act 2000, the Telecommunications (Lawful Business Practice) (Interception of Communications) Regulations 2000 (SI 2000/2699) and the Protection of Personal Information Act, South Africa (POPI Act).

"Deliverable" means any document or product that is to be delivered to the Client by the Supplier in the course of providing the Services or otherwise, as specified in the Services Agreement and/or any Schedule;

“Effective Date” means the date the Client executes this Agreement;

“ENTERTAINER go” means the mobile application or web-based solution (may be a Co-Brand, White Label or Cuckoo App or other solution), created, developed and owned by the Supplier, which is customized and may include Go Plus and/or Go Cities, features enabling the purchasing of tours and attractions, itinerary planner and/or travel guides in selected Go Plus and/or Go Cities, as set out in the Services Agreement;

“Expiry Date” means the date set out in the Services Agreement and/or any Schedule;

“Event of Force Majeure” means any of circumstance which occurs and which is beyond the reasonable control of a Party and directly prevent that party from performing its obligation under this Agreement, including but not limited to war, civil commotion, armed conflict, acts of government, acts of government bodies or other authority (including but not limited to mobile application publishing authorities), riot, act of terrorism, fire, flood or other act of God;

“Fees” means the fees payable by the Client to the Supplier for the provision of the Services and Deliverables as set out in the Services Agreement; “Gamification” if selected on the Services Agreement, means the addition of a gamification feature to the App;

“Go Cities” means the cities listed in the Services Agreement which are not Go Plus Cities (that is no Offers are provided in an ENTERTAINER go solution forming part of the Services and Deliverables);

“ Go Plus Cities” means the cities listed in the Services Agreement which in addition to other features of an ENTERTAINER go solution also contain the specified number of Offers set out in the Services Agreement;

“ In App Messaging” if forming part of the Services and Deliverables set out in the Services Agreement, means the addition of an in-app messaging feature to the App and the creation and/or publication of content by the Supplier and/or the Client as set out in the Services Agreement;

"Intellectual Property Rights" means any and all patents, rights in inventions, trademarks, service marks, copyrights and related rights, database rights, data analytics, Personal Data or any other data created by a service or deliverable, moral rights, rights in designs, know-how, Confidential Information and all or any other intellectual or industrial property rights whether or not registered or capable of registration in any part of the world together with all or any goodwill relating to them;

“Law” or “Laws” means all federal, national, provincial, local and/or municipal legislation, statutes, statutory instruments, regulations, by-laws, rules, ordinances, guidance or subordinate legislation from time to time made or issued to which a Party is subject;

  1. any binding court order, judgment or decree;
  2. any applicable industry code, guidance, policy or standard which, in each case, is enforceable by law, in so far as such Law relates to the performance of the Parties’ obligations under this Agreement or the receipt or provision of the Services under this Agreement,

and Legal shall be construed accordingly;

“NFC” if forming part of the Services and Deliverables set out in the Services Agreement, means the news feed communication feature which is to form part of the App, whereby content, publication and broadcasting is to be a Service provided by the Supplier to the Client as set out in the Services Agreement;

“Offer(s)” means the offers sourced by the Supplier whereby the Supplier and the said merchant has entered into a separate contract for offers to be featured on the App or other solution forming part of the Deliverables and Services in the markets/regions listed in the Services Agreement and/or any Schedule;

“Party” means each of the Supplier and the Client referred to individually as “Party” and collectively as “Parties”;

“Personal Data” has the same definition as provided in the relevant Data Protection Legislation;

“Portal” means a self-service customized portal made available to the Client by the Supplier enabling the Client to access aggregate and/or customer level data, subject to privacy restrictions and Data Protection Legislation and/or other applicable Laws, on the use of the App, as agreed by the Parties;

“Promotion” means the promotion the Client will be offering to the App Users during the Promotion Period to use the App and the Offers and any Client Offers;

“Promotion Period” is the period as set out in the Services Agreement;

“Publication Date” means, in the case of a White Label, Co-Branded App and Slice App, the date the App is approved and published in the relevant mobile application stores, in the case of a Cuckoo App, the date the Cuckoo App is delivered to the Client by the Supplier in a form which is able to be published in the relevant mobile application stores by the Client.

“Push Notification” means if forming part of the Services and Deliverables set out in the Services Agreement, means the addition of push notification feature to the App and the creation and/or publication of content by the Supplier and/or the Client as set out in the Services Agreement;

“Reporting” if forming part of the Services & Deliverables set out in the Services Agreement, means, in the case of “Standard Reporting”, the access granted to the Client by the Supplier to the Portal for the duration of the Promotion Period and, in the case of “Advanced Reporting”, means the license/s granted to the Client by the Supplier for the Fee set out in the Services Agreement, to access, for the duration of Promotion Period, a customised Tableau dashboard providing App analytics in the English language (or as otherwise set out in the Services Agreement) comprising of aggregate and customer level data, subject to privacy restrictions and Data Protection Legislation and/or other applicable Laws, as agreed by the Parties;

“Schedule” means the relevant schedule attached hereto which taken together shall be referred to as Schedules; “Services” means the services to be provided by the Supplier as set out in the Services Agreement and/or any Schedule;

“Services Agreement” means the document of the same name setting out the commercial terms of the Agreement which is executed by the Parties;

“Slice App” means the App identified in the Services Agreement and/or any Schedule, being a mobile application developed, owned and managed by the Supplier which will be available to download by the App Users and will be the vehicle for redemption of Offers and any Client Offers across the Territory by the App Users.

“Supplier” means the person or entity identified as the “Supplier” on the Services Agreement;

“Supplier IP” means any Intellectual Property Rights contained in the Supplier Tools and/or any other Intellectual Property Rights owned or provided under license by the Supplier;

“Supplier Affiliate” means:

  1. any Affiliate of the Supplier; and
  2. any entity over which from time to time any Affiliate of the Supplier either directly or indirectly exercises management control, even though it may own less than fifty percent (50%) of the shares and is prevented by Law from owning a greater shareholding;

“Supplier Personnel” means all employees, agents, consultants, contractors and other representatives of the Supplier (or its subcontractors) who are involved, or proposed to be involved, in the provision of Services;

“Supplier Tools” means any pre-existing materials or other Intellectual Property Rights owned by or provided to under license by the Supplier which pre-date, subsist in any materials or are created as part of this Agreement and are used or included in the Deliverables and any changes, modifications or enhancements made thereto during the Contract Period;

“Terms of Service” means these terms and conditions being clauses 1 to 18 inclusively of this document titled “Terms of Service”;

“Territory” means the country/region set out in the Services Agreement and/or any Schedule;

“Third Party IP” means any Intellectual Property Rights that subsist in any materials that are included in the Deliverables or that have been created as part of the Services that are owned by a third party and provided to under license;

“Upgrade” means the addition of feature to the App forming part of the Services and Deliverables, enabling the App User to make an in-app purchase from the Supplier the full content of the specified Supplier consumer product (Offers only) available for purchase on the App for the price specified (set out in the Services Agreement). An Upgrade purchase via an App is a transaction between the App User and the Supplier, utilizing the Supplier’s payment gateway (unless otherwise specified on the Services Agreement). On receipt of cleared funds, the Supplier will enable the downloading of the content (Offers only) of the Supplier consumer product purchased onto the App. Validity of Offers downloaded onto an App following an Upgrade purchase will have the same validity as that of the Supplier consumer product purchased and as set out on the Offers. The Rules of Use and any other terms and conditions as amended by the Supplier from time to time applicable to the specified Supplier consumer product will apply to the Offers downloaded when an Upgrade is purchased by an App User;

"VAT" means value-added tax or any other sales tax chargeable under any applicable Law;

“VIP Keys” the mobile application activated keys supplied by the Supplier which once inserted onto the App enable access to the Offers and any Client Offers available for redemption by the App Users;

“White Label App” means a native white-label App which contains branding of the Client in either the name of the App published in the relevant mobile application stores and/or the content of the App;

“Working Day” means any private sector working day (except for days declared by the Ministry of Labour to be public holidays in the private sector, Saturdays & Sundays) in the United Arab Emirates.

3. ENGAGEMENT

Subject to any provisions set out in the Agreement, the Client engages the Supplier to provide the Services and Deliverables and the Supplier agrees to provide such Services and Deliverables in accordance with the terms and conditions of this Agreement.

4.DURATION

This Agreement shall come into force from the Effective Date and expire on the Expiry Date (Contract Period) unless the Parties terminate this Agreement before the expiry of the Contract Period in accordance with the terms of this Agreement.

5.CLIENT’S OBLIGATIONS

The Client will:

  1. pay the Supplier the Fees and any Charges in accordance with the provisions set out in this Agreement;
  2. supply all information and supporting documentation which is reasonably required by the Supplier in order for the Supplier to carry out its obligations under this Agreement;
  3. use reasonable efforts to demonstrate, promote and advertise the Promotion including the existence of any Deliverable and the terms of the Promotion throughout the Territory. Any communications related to the Promotion (whether it uses the Supplier IP or not) will require the Supplier’s written consent and approval.
  4. The Client shall fully indemnify, defend and hold harmless at all times the Supplier and its officers, directors, employees, agents, Affiliates, successors and assigns from and against any and all loss, damages, liabilities, deficiencies, claims, actions, demands, prosecutions, proceedings, judgments, settlements, interest, awards, penalties, fines, costs, charges or expenses of whatever kind, (including legal fees on a full indemnity basis), suffered by the Supplier as a consequence of, or in connection with, any breach by the Client, the Client’s employees or Affiliates of any provision of this Agreement, the Client’s negligence or misconduct, dishonesty, breach of any applicable law and/or breach of any confidentiality and/or any actual or alleged infringement of any Supplier Intellectual Property Rights and/or any claims arising due to the negligence or breach by the Client in the discharge of its obligations set out in this Agreement.
6.SUPPLIER'S OBLIGATIONS
  1. The Supplier will coordinate and implement the Services and develop and deliver the Deliverables.
  2. The Supplier warrants, represents and undertakes to the Client that, while this Agreement remains in force:
    1. it will procure for the Client (unless otherwise agreed between the Supplier and the Client in writing) all rights, licences, consents and permits and waivers that the Client may require in order to use and enjoy the Services and Deliverables in accordance with this Agreement;
    2. it will ensure that all Supplier Personnel:
      1. will, when allowed the use of any Client systems, minimise disruption to the normal operations of the Client (including the operations of other parties employed by the Client) and comply with all applicable system usage, security and other policies and procedures in force from time to time; and
      2. will not load or use on any Client’s computer equipment or systems any software, data or other materials, other than those provided or approved by the Client.
  3. The Supplier hereby grants the Client a non-exclusive, worldwide license for the Contract Period to use and publicly perform and display the App and any other Deliverable (as applicable and unless otherwise specified in the Agreement). It does not give the Client a license to copy, distribute, sell, make derivative words from the App or any other Deliverable whatsoever and under no circumstance. The Supplier warrants that the App and any other Deliverable will not infringe any other party’s Intellectual Property Rights.
  4. The Client acknowledges and agrees that in the event a merchant providing an Offer either terminates its agreement with the Supplier, goes out of business or selects not to be featured in the App or Deliverable the subject of this Agreement at any time during the Promotion Period, the Supplier will use its reasonable endeavours to replace such merchant with another so that the number of Offers set out in the Services Agreement and/or any Schedule are always delivered by the Supplier.
  5. The Supplier shall fully indemnify, defend and hold harmless the Client and its officers, directors, employees, agents, affiliates, successors and assigns from and against any and all losses, damages, liabilities, deficiencies, claims, actions, demands, prosecutions, proceedings, judgments, settlements, interest, awards, penalties, fines, costs, charges or expenses of whatever kind, (including legal fees on a full indemnity basis) suffered by the Client as a consequence of, or in connection with any breach by the Supplier, the Supplier’s employees or Affiliates of any provision of this Agreement.
7.PAYMENT
  1. The Client shall pay the Fees as specified in the Agreement. The Client acknowledges and agrees that the Fees is remuneration only for the Services and Deliverables set out in the Agreement and that any service or deliverable that are not otherwise stated in the Agreement will incur an additional charge payable by the Client to the Supplier (Charges). Such Charges if not set out in the Agreement will be communicated to the Client prior to the Supplier performing any additional service or deliverable.
  2. Invoices shall be rendered according to local tax regulations (as applicable), to the Client by the Supplier and shall fall due and payable to the Supplier on the date specified in the Agreement or if not specified, within seven (7) days of the date of the invoice. Payment shall be by bank transfer (or equivalent) and the Supplier shall provide the Client with its relevant account details.
  3. In case of any dispute or concern with any of the invoices, the Client shall communicate and inform the Supplier of the same, in writing, within seven (7) days of the date of invoice.
  4. Unless otherwise specified, the Fees and Charges payable by the Client are exclusive of VAT, as required under the relevant legislation. Upon the effective date of implementation of any VAT, the party who makes a taxable supply under or in connection with this Agreement shall be entitled to recover such taxes that it is required by Law to collect from the other party to whom the supply is made by issuing a valid tax invoice in the format prescribed under the relevant legislation.
  5. The Client shall bear and shall pay and fully indemnify the Supplier against any and all liabilities or claims for any taxes, or any other governmental charges which any governmental authority claiming jurisdiction over the Agreement or the area of operations the subject of this Agreement may impose, assess or levy against either Party on account of or resulting from the Supplier’s execution of or performance under the Agreement, as it arises during the Contract Period.
  6. The Supplier is entitled to charge the Client interest for any amount outstanding, both before and after any judgment, calculated on a daily basis at the rate of 10% per annum from the due date for payment until payment is made in full, as well as suspend the Services until such time as full payment is made.
8.TERMINATION
  1. This Agreement shall commence on the Effective Date and expire at the end of the Contract Period or until terminated in accordance with this clause 8, whichever occurs first.
  2. The Client may terminate this Agreement:
    1. immediately on written notice if the Supplier becomes insolvent or has a receiver, administrative receiver, administrator or similar officer appointed or resolves to go into liquidation (except for a bona fide amalgamation or reconstruction while solvent where the resulting entity agrees to be bound by and assumes the Supplier's obligations under this Agreement);
    2. if the Supplier is in breach of any of its obligations under this Agreement and either the breach is incapable of remedy or the Supplier has not remedied such breach within thirty (30) days of written notice requiring it to remedy that breach;
  3. The Supplier may terminate this Agreement, and at its option, terminate or suspend the provision of any Services and/or Deliverables:
    1. if the Client fails to make any payment due and payable to the Supplier under this Agreement within fourteen (14) days of the due date;
    2. if the Client is in breach of any of its obligations under this Agreement (other than its obligation for payment of Fees and Charges) and either the breach is incapable of remedy or the other party has not remedied such breach within thirty (30) days of written notice requiring it to remedy that breach;
    3. immediately on written notice if the Client becomes insolvent or has a receiver, administrative receiver, administrator or similar officer appointed or resolves to go into liquidation.
    4. for convenience, on a prior written notice of thirty (30) days to the Client.
  4. The Parties acknowledge and agree that this clause 8 and each of the rights of each Party hereunder have been negotiated in good faith in the context of the Parties’ rights and obligations under and/or in connection with this Agreement.
9.TERMINATION CONSEQUENCES
  1. Termination or expiry of this Agreement, however caused, shall be without prejudice to any obligations or rights of either of the Parties which may have accrued before termination or expiry and shall not affect any provision of this Agreement which is expressly or by implication intended to come into effect on, or to continue in effect after, such termination or expiry.
  2. Upon termination or expiry of this Agreement each Party shall promptly return any property (including Confidential Information) of the other which it has in its possession or control. To the extent technically practicable, each Party shall destroy or permanently erase all copies of any Confidential Information but may retain one copy (and any automatically generated back-up electronic copies) solely for the purposes of (and for so long as required by) any law, court or regulatory agency or authority or stock exchange or internal compliance and diligence procedures and policies. In any case, any Confidential Information that is not returned or destroyed including oral Confidential Information shall remain in perpetuity subject to the confidential restrictions set out in clause 12.
10.LIMITATION OF LIABILITY
  1. The parties shall not in any circumstance be liable to the other party in tort (including negligence), breach of contract, breach of statutory duty or otherwise due to, under and/or arising out of or in connection with this Agreement if and to the extent that the loss or damage in respect of which such liability arises or is claimed to arise falls within any of the following categories:
    1. loss of profits;
    2. loss of revenue or business;
    3. loss of goodwill or reputation;
    4. loss of or corruption or damage to data.
  2. The parties shall not be liable to the other party in tort (including negligence), breach of contract, breach of statutory duty or otherwise due to, under and/or arising out of or in connection with this Agreement to the extent such loss or damage is consequential, indirect, special or punitive, whether or not such person had been advised of the likelihood of any such loss or damage.
  3. The parties agree that either party’s total liability under this Agreement, or otherwise in connection with the Event, shall not exceed a total cumulative maximum liability of the total fees paid by the Client to the Supplier. For the avoidance of any doubt, nothing in this Agreement shall operate to exclude or restrict either party’s liability for negligence, fraud, or any other liability that may not be restricted or excluded pursuant to applicable law.
11.OWNERSHIP OF MATERIALS
  1. The Intellectual Property Rights in all Deliverables and all Intellectual Property Rights and/or any content or data created in the performance of the Services, creating and delivering of any Deliverable including but not limited to the App, the Supplier IP and any Third Party IP, shall belong to the Supplier at all times.
  2. The Intellectual Property Rights in any content including that in any Confidential Information provided to the Supplier by the Client necessary to provide the Services to the Client in accordance with this Agreement shall belong to the Client at all times.
  3. The Supplier shall take all steps necessary to ensure the Client and the App Users may use the Deliverables and receive the Services without restriction of any kind during the Contract Period.
  4. Each Party may only use any content provided by the other party as strictly necessary during the Contract Period and only in accordance with this Agreement. Each Party grants a licence to the other for the Contract Period for such purposes only.
  5. The Client shall not use any of the Supplier IP or any Third Party IP without the prior written consent of the Supplier.
12.CONFIDENTIALITY AND CONFIDENTIAL INFORMATION
  1. Both Parties agree that the terms of this Agreement are confidential and will not be disclosed to any third party other than as mutually agreed upon in writing. This clause will survive the termination or expiry of this Agreement.
  2. The Parties shall (and will procure that their personnel shall):
    1. keep confidential all Confidential Information;
    2. not disclose or transfer to any third party (other than as permitted hereunder) any Confidential Information; and
    3. not use (including by making unnecessary copies) other than as strictly necessary for the performance of this Agreement any Confidential Information.
  3. Each Party may disclose the other party's Confidential Information:
    1. to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party's rights or carrying out its obligations under or in connection with this Agreement. Each Party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party's Confidential Information comply with this clause; and
    2. as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
  4. The Parties shall not remove, alter, cover or obfuscate any copyright notices or other proprietary rights notices properly placed or embedded by the other party on or in any of its Confidential Information.
13.DATA PROTECTION
  1. Each Party undertakes, where applicable, to comply fully with the Data Protection Legislation and to procure that its employees, agents and contractors observe the provisions of the Data Protection Legislation. This clause is in addition to, and does not relieve, remove or replace, a Party’s obligations under the Data Protection Legislation.
  2. Without prejudice to the generality of clause 13a, any Party which is deemed a “Controller” of Personal Data under the relevant Data Protection Legislation (Controller) must ensure that it has all necessary appropriate consents and notices in place to enable use of the Personal Data and/or lawful transfer of Personal Data to the other Party (as applicable) for the duration and purposes of this Agreement.
  3. Without prejudice to the generality of clause 13a, a Party which is deemed a “Processor” of Personal Data under the relevant Data Protection Legislation (Processor), if it processes Personal Data in connection with the performance of its obligations under this Agreement must:
    1. process that Personal Data only on the written instructions of the Controller unless the Processor is required by Applicable Laws to otherwise process that Personal Data. Where the Processor is relying on laws of a member of the European Union or European Union law as the basis for processing Personal Data, the Processor shall promptly notify the Controller of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit the Processor from so notifying the Controller;
    2. ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the Controller, to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
    3. ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential; and
    4. not transfer any Personal Data outside of the European Economic Area unless the prior written consent of the Customer has been obtained and the following conditions are fulfilled:
      1. the Controller or the Processor has provided appropriate safeguards in relation to the transfer;
      2. the data subject has enforceable rights and effective legal remedies;
      3. the Processor complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and
      4. the Processor complies with reasonable instructions notified to it in advance by the Controller with respect to the processing of the Personal Data;
    5. assist the Controller, at the Controller’s cost, in responding to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
    6. notify the Controller without undue delay on becoming aware of a Personal Data breach;
    7. at the written direction of the Controller, delete or return Personal Data and copies thereof to the Controller on termination of the agreement unless required by Applicable Law to store the Personal Data; and
    8. maintain complete and accurate records and information to demonstrate its compliance with this clause and allow for audits by the Controller or the Controller’s designated auditor
  4. The Processor is not permitted to appointing a third-party processor of Personal Data under this Agreement without the prior written consent of the Controller. Any consent to the appointment of a third party processor provided by the Controller will be subject to the conditions that any agreement between the Processor and the third party processor and is to incorporate terms which are substantially similar to those set out in this clause. As between the Controller and the Processor, the Processor shall remain fully liable for all acts or omissions of any third-party processor appointed by it pursuant to this clause.
  5. Either Party may, at any time on not less than 30 days’ notice, revise this clause 13 by replacing it with any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme (which shall apply when replaced by attachment to this Agreement).
14.SUPPLIER’S SECURITY OBLIGATIONS
  1. The Supplier undertakes to comply with industry best IT security practice.
  2. The Supplier will ensure that it implements and maintains appropriate security controls, in compliance with the Client’s IT security standards, to ensure the confidentiality and integrity of all data and information belonging to the Client which may be delivered to, generated by or otherwise used or processed by or on behalf of the Supplier or may otherwise come into the possession or control of the Supplier or the Supplier Personnel (Client Data), and warrants and represents that such appropriate security controls are, and shall remain, operational and effective.
  3. Without prejudice to the generality of the foregoing, the Supplier shall ensure that all Client Data is protected at all times, in such manner as is consistent with the data security classification applicable to such data, from corruption and from unauthorised access and interference both while such Client Data is within the possession and control of the Supplier and while (if transmission is consistent with the classification of such Client Data and is strictly required for the purpose of performing the Services) it is in transit across a network (whether public or private).
  4. The Supplier shall ensure that no Client Data is stored on any portable medium or device.
  5. Where Client Data is transmitted across a network or stored on any portable medium or device, the level of protection that the Supplier is obliged to adopt pursuant to clause 14(c) shall be consistent both with the data security classification of the data in question and with the additional risk posed by its transmission and/or its storage on a portable medium or device.
  6. The Supplier will ensure that any Supplier Personnel who will be entering into the Client’s premises and/or will have access (remotely or otherwise) to the Client’s systems, data or information shall have been subject to pre-employment screening at least to the standards set out in the Client’s then-current policy for the screening of personnel provided by contractors, a copy of which may be obtained from the Client on request.
15.ANTI BRIBERY
  1. The Parties recognize that the Client and any person or entity acting on its behalf must comply with international laws related to anti-bribery and corruption, including the U.S. Foreign Corrupt Practices Act, the UK Bribery Act, and other applicable law. The Supplier confirms, in relation to the provision of the Services to the Client, and the activities to be carried out under this Agreement that:
    1. its officers, directors and employees are subject to the policies and procedures of the Supplier which are designed to prevent the occurrence of bribery and corrupt conduct; and
    2. it shall procure compliance with such policies and procedures by its officers, directors and employees.
  2. The Supplier:
    1. acknowledges that as a service provider to the Client, its conduct (in relation to the provision of services under this Agreement) may cause the Client to incur liability under applicable laws relating to bribery and corrupt practices;
    2. agrees in connection with this Agreement and transactions undertaken for and on behalf of the Client that it has not and undertakes that it shall not engage in the following conduct:
      1. making any payments or transfers of value, offers or promises; or
      2. giving any financial or other advantage, make any requests, agreements to receive or accepting any financial or other advantage,

      either directly or indirectly which has the purpose or effect of, or would mean acceptance of or acquiescence in, either directly or indirectly:

      1. public or commercial bribery;
      2. other unlawful or improper means of obtaining or retaining business or commercial advantage; or
      3. the improper performance of any function or activity; and
    3. shall procure the compliance with these obligations from its respective affiliates and associated persons, agents or subcontractors who may be used for the fulfilment of obligations under the Agreement.
16.NOTICES

Any notice made pursuant to this Agreement shall be in writing and in the English language and sent by means of express courier, pre-paid first class or registered post or email message, to the address set out below, unless otherwise agreed in writing by the Parties:
If sent to the Client to be sent at the address set out in the Services Agreement.
If sent to the Supplier to be sent to the attention of the Legal Counsel to Level 9, Landmark Group Tower, Dubai Marina, PO Box 502202, Dubai, United Arab Emirates.
A notice shall be deemed (in the absence of evidence of earlier receipt) to have been received (in the case of post, forty-eight (48) hours after dispatch to the relevant address, in the case of courier, the date delivery has been confirmed by the courier service and in the case of email, except for notices of termination or an indemnifiable claim, the day of sending by email. The Parties acknowledge and agree that an invoice issued pursuant to this Agreement may be sent to a Party electronically to the email address set out in the Services Agreement or any other address otherwise agreed in writing by the Parties and is deemed received when it is delivered to such email address.

17.FORCE MAJEURE
  1. Neither Party shall be liable for any delays or failures attributable to its being affected by an Event of Force Majeure.
  2. Upon the occurrence of an Event of Force Majeure preventing either Party from performing its respective obligations under this Agreement, the obligations of the affected Party affected by the Event of Force Majeure shall be suspended during the period affected by the Event of Force Majeure. The Party suffering from such event will promptly notify the other Party in writing.
  3. In the event the Event of Force Majeure conditions continue for a period of more than sixty (60) days, then the implications arising there from including the continuity of this Agreement shall be discussed and mutually agreed upon between the Parties.
18.GENERAL
  1. Both Parties warrant and represent that they have the right and authority to enter into this Agreement.
  2. Each Party will conduct all activities and perform all its obligations under this Agreement in full compliance with all applicable laws and regulations.
  3. The Supplier may assign, transfer, part with or sub-contract this Agreement in whole or in part, including any of its rights, responsibilities and/or obligations under this Agreement (in whole or in part) without the prior consent of the Client. The Client may assign or transfer this Agreement in whole or in part, only with the prior written consent of the Supplier.
  4. Except where otherwise explicitly agreed, all right and remedies granted in this Agreement are cumulative and not exclusive of any other remedy or right in this Agreement or at law, and no exercise of any right or remedy shall restrict or prejudice any further exercise of it.
  5. This Agreement may be executed in any number of counterparts, each of which, when executed and delivered, shall be an original, and all the counterparts together shall constitute one and the same instrument.
  6. This Agreement is governed by and construed in accordance with the laws of the Dubai International Financial Centre, without giving effect to any choice or conflict of law provision or rule (whether of the Dubai International Financial Centre or any other jurisdiction). Any legal suit, action or proceeding arising out of or related to this Agreement shall be instituted exclusively in the courts of the Dubai International Financial Centre.
  7. No relaxation, forbearance, delay or negligence by either the Client or the Supplier in enforcing any provision of this Agreement or in exercising any right or remedy to which it is entitled under this Agreement or the granting of time by either Party to the other party shall constitute a waiver or prejudice, affect or restrict the rights and powers of that party. No waiver of any provision of this Agreement shall be effective unless made in writing and signed by the party against which enforcement of the waiver is sought and communicated to the other party in accordance with clause 16 (Notices). The waiver of any breach of this Agreement shall not constitute a waiver of any subsequent or other breach.
  8. Nothing in this Agreement shall be construed as or have the effect of constituting any relationship of employee and employer, partnership or joint venture between the Parties nor constitute either Party the agent of the other for any purpose.
  9. No amendment to this Agreement, for whatever reason, will be of any force or effect, unless it is reduced to writing with reference to this Agreement and signed by a duly authorised officer or representative of each of the Parties.
  10. If any provision of this Agreement is held by a court to be invalid, illegal or unenforceable and can be deleted without altering the essence of this Agreement, the invalid, illegal or unenforceable provision will be severed and the remaining provisions will remain in full force or effect.
  11. The expiry or termination (for any reason) of this Agreement shall not affect any provision of this Agreement which is expressly or by implication intended to come into effect on, or to continue in effect after, such expiry or termination.
  12. The Client acknowledges and agrees that, during the term of this Aa greement, the Client shall not directly engage, contract, or communicate with any subcontractors or sub-processors utilized by the Supplier in the provision of services under this Agreement without obtaining the prior express written consent of the Supplier.
  13. The Client further understands that any unauthorized direct engagement with the Supplier's subcontractors or sub-processors may result in a breach of this Agreement. In such cases, the Supplier reserves the right to take appropriate legal action to protect its interests, including but not limited to seeking injunctive relief, termination of this Agreement, and pursuit of damages.
  14. The provisions of this Agreement constitute the entire agreement between the Parties and supersedes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
  15. This Agreement is drafted in the English language. If this Agreement is translated into any other language than English, the English language version shall prevail to the extent of any inconsistency.
  16. Nothing in this Agreement creates or is intended to create any right enforceable by any person not a party to this Agreement. This Agreement however shall be binding on, and enure to the benefit of, the Parties to this Agreement and their respective successors and permitted assigns, and references to any Party shall include references to the Party’s successors and permitted assigns.

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